Malicious Prosecution and Abuse of Process

     Malicious prosecution is a common law intentional tort aimed at actors, whether private or government, which commence or institute, or cause to be commenced or instituted, unwarranted or unjustified legal proceedings against a Defendant.  At common law, the elements of a Malicious Prosecution claim included:

  1. intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal);
  2. that is brought without probable cause and;
  3. that action is dismissed in favor of the victim of the malicious prosecution.

     In some jurisdictions, the term “malicious prosecution”, which denotes the wrongful initiation of criminal proceedings, is distinguished from the “malicious use of process” which denotes the wrongful initiation of civil proceedings.

     In Nevada, the elements of a malicious prosecution claim, as outlined in Chapman v. City of Reno, are similar to the common law elements and are as follows:


  1. a lack of probable cause to commence the prior action;
  2. malice;
  3. favorable termination of the prior action; and
  4. damages.


     Generally, criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial immunity and judicial immunity.  However, a malicious prosecution claim will prevail where intentional conduct that rises to the level of either maliciousness or gross or reckless indifference to the consequences of a prosecutor or judges actions can be proved by clear and convincing evidence.

Abuse of Process

     Abuse of process is a cause of action sounding in tort arising from one party making a malicious and deliberate misuse or perversion of the courts and the law not justified by the underlying legal action and is to be distinguished from malicious prosecution in that it is aimed at the use and misuse of legal process for illegitimate purposes, regardless of the merit of the underlying claim.

At common law, the elements of an abuse of process claim were as follows:

  1. the existence of an ulterior purpose or motive underlying the use of process, and
  2. some act in the use of the legal process not proper in the regular prosecution of the proceedings.


     Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution.

     In Nevada, the elements required to prevail on an abuse of process claim are similar to those existing at common law: (1) an ulterior purpose other than resolving a legal dispute, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding.  Kovacs v. Acosta.  An “ulterior purpose” includes any “improper motive” underlying the issuance of legal process.  See Laxalt v. McClatchy, 622 F. Supp. 737, (D. Nev. 1985).


     “Process,” as used here means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court, administrative agency or government entity.  Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of “process” considered to be capable of abuse.

     As discussed above, the distinguishing factor between abuse of process claims and malicious prosecution is the purpose for which the complained of legal proceedings are instituted; generally, the person who abuses process wishes only to harass, molest, bother, annoy, pester or otherwise injure the other by use of the law and courts in such a way and for such a purpose as offends justice, such as an unjustified arrest or an unfounded criminal prosecution.