For substantive due process purposes, the alleged malicious prosecution must be conscience-shocking.
See Hand v. Gary, 838 F.2d at 1424; Barnier v. Szentmiklosi, 810 F.2d 594 (6th Cir.1987);
Johnson v. Barker, 799 F.2d 1396, 1400 (9th Cir.1986). “Conscience-shocking” conduct will of course be determined on a case-by-case basis. “[W]hat is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation.”
Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 236, 53 L.Ed. 410 (1909) (Justice Holmes) In cases of a
Section 1983 malicious prosecution claim, substantive due process violations have included: seven hours of detention and accompanying humiliation, ridicule and mental anguish,
Conway v. Village of Mount Kisco, 750 F.2d 205 and
758 F.2d 46 (2nd Cir.1985),
cert. den., 479 U.S. 84, 107 S.Ct. 390, 93 L.Ed.2d 325 (1986); filing charges maliciously in an attempt to suppress plaintiff's First Amendment right to make comment concerning a public official's duties,
Losch, 736 F.2d 903; fabricating charges, falsifying facts, destroying evidence, and strip searching plaintiff because of his race,
Karim–Panahi, 839 F.2d 621; and falsifying police reports, contriving charges and detaining plaintiff in manacles for reasons of race,
Usher, 828 at 562. Where plaintiff has not been physically abused, detained, prosecuted due to racial or political motivation or otherwise deprived of equal protection of the law, courts are reluctant to find “conscience-shocking” conduct that would implicate a constitutional violation.
See, e.g., Barnier, 810 F.2d 594 (police officers' filing of an unwarranted assault and battery charge against plaintiff was not “conscience-shocking”);
Johnson v. Barker, 799 F.2d at 1400 (where plaintiff was not physically abused or incarcerated, and conduct was not “brutal,” baseless charges did not rise to the magnitude of substantive due process violation). We emphasize that misuse of the legal process alone will not be enough to sustain a claim.
Hand v. Gary, 838 F.2d at 1424; Whatley v. Philo, 817 F.2d 19, 22 (5th Cir.1987) (plaintiff's claims that defendant filed charges solely to “vex and harass” him did not constitute constitutional tort).