◆ SpookStack

Nos. 77-1698, 77-1210 & 77-1370 51 state law, the defendant has subjected the plaintiff to a deprivation of constitutional magnitude. Hampton I, supra; Banish v. Locks, supra; Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1968). Plaintiffs contend that the raiders, Hanrahan, and Jalovec instituted an unfounded prosecution and that they, along with the other defend- ants, supported its continuation. Relief is sought for the constitutional deprivations and injuries arising from this prosecution. The absence of probable cause is an essential element of an action for malicious prosecution. Banish v. Locks, - supra, 414 F.2d at 640. Under the general tort principles of malicious prosecution, The defendant may be liable either for initiating or for continuing a criminal prosecution without prob- able cause. But he cannot be held responsible unless he takes some active part in instigating or en- couraging the prosecution. He is not liable merely because of his approval or silent acquiescence in the acts of another, nor for appearing as a witness against the accused, even though his testimony is perjured. ... On the other hand, if he advises or assists another person to begin the proceeding, ratifies it when it is begun in his behalf, or takes any active part in directing or aiding the conduct of the case, he will be responsible. (emphasis added) Prosser, Torts (4th ed. 1971) pp. 836-37. Plaintiffs referred to essentially the same evidence to cupport their individual malicious prosecution claims as they did to substantiate their conspiracy claims re- garding malicious prosecution. We reach the same conclusion here as we did earlier. We hold that plaintiffs failed to establish a prima facie case against defendants Purtell, Koludrovic, Kukowinski, Ervanian, Sorosky, and Meltreger. The malicious prosecution claims against the remaining defendants should have been submitted to v