L.R. Bretz v. Zollie Kelman, Jack R. Lande, Eugene R. Welborn, Donald Zeman, James Cook, and the City of Great Falls, Montana, a Municipal Corporation

In this case we must determine whether an alleged plan to prosecute Bretz, including a scheme to coerce witnesses and falsify evidence, states an actionable wrong under 42 U.S.C. § 1983 . Because we agree with the district court that Bretz’ amended complaint fails to allege the violation of a constitutionally protected interest, we affirm.

On October 24,1976, Jack Lande, Eugene Welborn, and a third man were arrested for burglarizing the residence of Zollie Kelman. On January 26, 1977, Bretz, who had been in prison since December 1, 1976 on an unrelated felony conviction, was charged with conspiracy to commit the burglary of Kelman’s residence. The conspiracy charges against Bretz were dismissed at trial for lack of credible evidence. He then applied for bail pending appeal of his other felony conviction. The application was denied. Bretz alleges the denial was caused by the prosecution of the conspiracy charge.

Bretz contends that the conspiracy charge was a scheme on the part of Kelman, the two burglars, two Great Falls policemen, and the City of Great Falls to prevent him from being granted bail. According to Bretz, Kelman, Lande, and Welborn staged the entire burglary in a…

dissenting:

I respectfully dissent. Contrary to the majority’s view,. I find the result in this case controlled by this court’s decision in Cline v. Brusett 661 F.2d 108, 112 (9th Cir.1981).

In Cline , we squarely held that police officers’ conduct in bribing witnesses and knowingly presenting false evidence against an accused gave rise to a cause of action under 42 U.S.C. § 1983 because such conduct impaired a liberty interest protected by the Fourteenth Amendment. 661 F.2d at 112 . This court stated in Cline that a section 1983 action “exists for malicious prosecution[ ] conducted with the intent of denying a person equal protection or which otherwise subject a person to a denial of constitutional rights.” Id. (emphasis added). Bretz has alleged such intent. We are compelled by Cline to find that Bretz has alleged a cause of action under section 1983.

The distinctions the majority would make between this case and Cline are unsupportable. The majority states that Cline alleged deprivation of a fair trial, whereas Bretz does not. The majority ignores the point that the facts alleged by Cline to support the claim of deprivation of a fair trial are substantially identical to…

722 F.2d 503 L.R. BRETZ, Plaintiff-Appellant, v. Zollie KELMAN, Jack R. Lande, Eugene R. Welborn, Donald Zeman, James Cook, and the City of Great Falls, Montana, a municipal corporation, Defendants-Appellees. No. CA 82-3111. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 1983. Decided Dec. 20, 1983. L.R. Bretz, Billings, Mont., for plaintiff-appellant. William Conklin, Gregory H. Warner, Graybill, Ostrem, Warner & Crotty, Great Falls, Mont., for defendants-appellees. Appeal from the United States District Court for the District of Montana. Before ANDERSON and FLETCHER, Circuit Judges, and TAYLOR, * District Judge. J. BLAINE ANDERSON, Circuit Judge: 1 In this case we must determine whether an alleged plan to prosecute Bretz, including a scheme to coerce witnesses and falsify evidence, states an actionable wrong under 42 U.S.C. Sec. 1983 . Because we agree with the district court that Bretz' amended complaint fails to allege the violation of a constitutionally protected interest, we affirm. 2 On October 24, 1976, Jack Lande, Eugene Welborn, and a third man were arrested for burglarizing the residence of Zollie Kelman. On January 26, 1977, Bretz, who…