Rivera-Guadalupe v. City of Harrisburg d/b/a Bureau of Police

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JORGE RIVERA-GUADALUPE, : Civil No. 1:19-CV-1400

:

Plaintiff, :

:

v. :

:

JACOB PIERCE, :

:

Defendant. : Judge Sylvia H. Rambo

M E M O R A N D U M

Before the court is Defendant Jacob Pierce’s motion for judgment on the

pleadings. (Doc. 73.) For the reasons set forth below, the motion will be denied.

I. BACKGROUND

This dispute stems from Plaintiff Jorge Rivera-Guadalupe’s criminal

prosecution relating to a May 2017 shooting at his residence in Harrisburg,

Pennsylvania, as investigated by Defendant Detective Jacob Pierce. (Doc. 60-1 ¶¶ 5,

6, 23, 48, 78.) The following factual account accepts the allegations of the Second

Amended Complaint (Doc. 60-1) (hereinafter “operative complaint”) as true and

draws all reasonable inferences in Rivera-Guadalupe’s favor.

On May 22, 2017, Christopher Valkosak, a close friend of Rivera-Guadalupe,

spent the day with him at his boarding house to offer him protection because he had

been physically assaulted the previous day. (Id. ¶¶ 9, 11–12.) Sometime after 11:00

p.m., Valkosak was standing in the doorway to Rivera-Guadalupe’s room and facing

the common-space hallway when two men appeared in front of him. (Id. ¶¶ 15, 17.)

One of them, a dark-skinned male in a black hoodie, shot Valkosak in the abdomen,

and both subsequently fled. (Id. ¶ 17.) Valkosak was critically injured and eventually

taken to the hospital. (See id. ¶¶ 20, 35.)

Detective Pierce led the shooting investigation. (Id. ¶ 73.) In an interview at

the hospital, Valkosak told Pierce that after he was shot, he saw Rivera-Guadalupe

remove a gun from under the mattress and flee. (Id. ¶ 35.) Valkosak also confided in

Pierce that he had smoked K-2, a psychoactive drug, two hours before the shooting.

(Id. ¶¶ 36–37.)

On May 23, 2017, Pierce procured a search warrant for Rivera-Guadalupe’s

room, where officers discovered marijuana, among other things. (Id. ¶¶ 31–34.) On

May 26, 2017, Pierce applied for an arrest warrant, in a criminal complaint

containing an affidavit of probable cause. (Id. ¶¶ 78, 81; Doc. 79-1.) Rivera-

Guadalupe was arrested that day pursuant to the warrant and was detained until his

trial in December 2018. (Doc. 60-1 ¶¶ 77, 84; Doc. 79-1 at 7.)

At the preliminary hearing on June 8, 2017, the Commonwealth introduced

testimony from three witnesses: Valkosak, Pierce, and Stanley Scales, Valkosak’s

roommate. (See Doc. 77-3 at 2.) Pierce included in his testimony that, despite having

visited Valkosak several times in the hospital, he never took a recorded statement

because Valkosak was “very highly medicated.” (Id. at 62:12–17.).

On August 4, 2017, the Commonwealth filed nine charges against Rivera-

Guadalupe: (1) attempted homicide; (2) unlawful possession of a firearm; (3)

possession of an unlicensed firearm; (4) conspiracy to commit aggravated assault;

(5) robbery; (6) recklessly endangering another person; (7) possession of marijuana;

(8) conspiracy to commit homicide; and (9) conspiracy to commit aggravated

assault.1 (Doc. 60-1 ¶ 48.) Judge Richard A. Lewis of the Dauphin County Court of

Common Pleas presided over the two-day trial in December 2018. “At the outset of

the trial,” the Commonwealth dropped five charges, and the following four

remained: possession of a firearm; possession of a firearm without a license;

robbery; and theft by unlawful taking. (Id. ¶ 50.) On December 12, 2018, the jury

found Rivera-Guadalupe not guilty on all four counts. (Id. ¶ 51.)

In August 2019, Rivera-Guadalupe initiated this action by filing a complaint

against various defendants, including Pierce. (Doc. 1.) In July 2020, upon motion by

the defendants, the court dismissed the complaint in part for failure to state a claim.

(Docs. 11, 12, 30, 31.) After Rivera-Guadalupe filed an amended complaint, Pierce

filed a motion to dismiss based on qualified immunity, and the court denied the

motion on procedural grounds. (Docs. 36, 38, 43, 58–59.) Pierce appealed, and the

Third Circuit remanded for the court to clarify the record by ruling on the qualified

1 The court notes that the operative complaint lists twice the “conspiracy to commit aggravated

assault” charge and appears to have omitted the “theft by unlawful taking” charge on which Rivera-

Guadalupe was eventually tried.

immunity issue on its merits once raised in an appropriate procedural posture. (Docs.

63, 69.) In the meantime, Rivera-Guadalupe filed the operative complaint which

advances three claims against Pierce: (1) a § 1983 malicious prosecution claim under

the Fourth Amendment; (2) a state common law malicious prosecution claim, and

(3) punitive damages. (See Doc. 60-1.) Upon remand, and in accordance with

instructions by this court, Pierce filed the present motion for judgment on the

pleadings, renewing his argument that he is entitled to qualified immunity. (Docs.

72, 73.) The motion has been fully briefed and is ripe for review.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(c), once the pleadings are closed,

but within such time as to not delay trial, a party may move for judgment on the

pleadings. The standard of review is identical to that of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), except that the court reviews not only the

complaint, but also the answer and written instruments attached to the pleadings.

Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991); Lum v. Bank of

Am., 361 F.3d 217, 223 (3d Cir. 2004); Iseley v. Talaber, No. 5-CV-444, 2008 WL

906508, at *2 (M.D. Pa. Mar. 31, 2008) (citing 2 James Wm. Moore et al., Moore’s

Federal Practice—Civil § 12.38). If matters outside the pleadings are presented to

and not excluded by the court, the motion shall be treated as one for summary

judgment and disposed of as provided in Federal Rule of Civil Procedure 56. FED.

R. CIV. P. 12(d). The court should consider the allegations in the pleadings, the

exhibits attached thereto, matters of public record, and “undisputedly authentic”

documents not attached to the pleadings if Plaintiff’s claims are based on such

documents, and may do so without converting the motion to one for summary

judgment. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196–97 (3d Cir. 1993); Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 256

n.5 (3d Cir. 2004). Because a Rule 12(c) “motion calls for an assessment of the

merits of the case at an embryonic stage, the court must view the facts contained in

the pleadings in the light most favorable to the nonmovant and draw all reasonable

inferences therefrom” in the nonmonvant’s favor. R.G. Fin. Corp. v. Vergara-Nunez,

446 F.3d 178, 182 (1st Cir. 2006). Judgment on the pleadings is appropriate only

when the moving party “clearly establishes that no material issue of fact remains to

be resolved and that he is entitled to judgment as a matter of law.” Minn. Lawyers

Mut. Ins. Co. v. Ahrens, 432 F. App’x 143, 147 (3d Cir. 2011).

III. DISCUSSION

A claim under 42 U.S.C. § 1983 requires the plaintiff to demonstrate that (1)

the conduct complained of was committed by a person acting under color of state

law; and (2) the conduct violated a right, privilege, or immunity secured by the

Constitution or laws of the United States. Harvey v. Plains Twp. Police Dep’t, 421

F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

Qualified immunity protects government officials from individual liability for such

claims unless the plaintiff demonstrates “(1) the violation of a constitutional right,

and (2) [that] the law was clearly established at the time of the violation.” Jefferson

v. Lias, 21 F.4th 74, 80 (3d Cir. 2021) (internal citation omitted). Contrary to Pierce’s

contention, he is not entitled to qualified immunity because the operative complaint

adequately alleges a constitutional violation of a clearly established right.2

A. Rivera-Guadalupe adequately alleges a Fourth Amendment malicious

prosecution claim.

To state a claim for malicious prosecution under the Fourth Amendment, a

plaintiff must allege that: (1) the defendant initiated a criminal proceeding; (2) the

criminal proceeding ended in his favor; (3) the defendant initiated the proceeding

without probable cause; (4) the defendant acted maliciously or for a purpose other

than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of

liberty consistent with the concept of seizure as a consequence of a legal proceeding.

Johnson v. Knorr, 477 F.3d 75, 81–82 (3d Cir. 2007). Pierce’s motion argues that

the operative complaint fails on the first and third prongs.

2 Pierce does not argue, nor does the court discern, any separate basis for dismissing Rivera-

Guadalupe’s state law malicious prosecution claim or punitive damages claim. See Corrigan v.

Central Tax Bureau of Pa., Inc., 828 A.2d 502, 505 (Pa. Cmwlth. 2003) (requiring all of the same

substantive elements as a Fourth Amendment malicious prosecution claim, except that the state

claim does not require a plaintiff to prove the final “deprivation of liberty” element); 42 U.S.C.

§§ 1983, 1988; 42 PA. STAT. AND CONS. STAT. ANN. § 8550. For purposes of this motion, these

claims rise and fall with Rivera-Guadalupe’s § 1983 claim.

1. Rivera-Guadalupe adequately alleges that Pierce initiated the criminal

proceeding.

While, as a general rule, it is prosecutors rather than police officers who are

responsible for initiating a criminal proceeding, the Third Circuit has found that a

police officer initiates a proceeding where he arrests a suspect without a warrant,

and then submits an affidavit of probable cause to the magistrate judge, as part of a

criminal complaint, charging the defendant with crimes. See Harvard v. Cesnalis,

973 F.3d 190, 203 (3d Cir. 2020) (citing Pennsylvania Rule of Criminal Procedure

502, which states that a criminal proceeding is instituted by the filing of a written

complaint or by a warrantless arrest under enumerated circumstances). Here, the

operative complaint adequately alleges that Pierce initiated the criminal proceeding

by filing a criminal complaint against Rivera-Guadalupe, complete with an affidavit

of probable cause and application for an arrest warrant, and in fact arresting him.

(Doc. 60-1 ¶¶ 39, 58, 81; Doc. 79-1.)

Moreover, Rivera-Guadalupe has satisfied this element, even to the extent that

he is required to show that Pierce “furnished false information to, or concealed

material information from, prosecuting authorities.” Gallo v. City of Phila., 161 F.3d

217, 220 n.2 (3d Cir. 1998), as amended (Dec. 7, 1998); Halsey v. Pfeiffer, 750 F.3d

273, 297 (3d Cir. 2014) (officers who engage in such conduct may be held liable for

their influence on and participation in the decision to institute criminal proceedings).

The operative complaint avers that Pierce knew and ignored exculpatory evidence

against Rivera-Guadalupe but nevertheless arrested and charged him. (Doc. 60-1 ¶¶

39, 58, 81.) Additionally, Pierce’s affidavit of probable cause for the arrest warrant,

as supplied by Pierce, further supports and expands Rivera-Guadalupe’s contention.3

(Doc. 79-1 at 7–8.) Drawing all reasonable inferences in Rivera-Guadalupe’s favor,

the operative complaint adequately alleges that Pierce’s affidavit recklessly

misrepresented the facts known to him, see infra, which is sufficient to show that

Pierce initiated criminal proceedings against Rivera-Guadalupe.

2. Rivera-Guadalupe adequately alleges a lack of probable cause.

Where an arrest is made pursuant to a warrant, a lack of probable cause can

be established where “the officer, with at least a reckless disregard for the truth,

made false statements or omissions that create[d] a falsehood in applying for a

warrant” if “those assertions or omissions were material, or necessary, to the finding

of probable cause.” Dempsey v. Bucknell Univ., 834 F.3d 457, 468–69 (3d Cir. 2016)

(citing Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000) (quotation marks

3 The court may consider the attached criminal complaint without converting the motion to one for

summary judgment because it is a public record and is integral to the operative complaint. See

McTernan v. City of York, Penn., 577 F.3d 521 (3d Cir. 2009) (citing Lum, 361 F.3d at 222 n.3);

see also Shelley v. Wilson, 339 F. App’x 136, 137 (3d Cir. 2009) (affirming the district court’s

consideration of motion exhibits including a criminal complaint and affidavit of probable cause in

support of an arrest warrant and a state court docket). The court will also consider all other public

records provided by the parties. (Docs. 73-1 (criminal docket), 77-1, 77-2 (criminal trial

transcripts), 77-3 (preliminary hearing transcript).) See Sands v. McCormick, 502 F.3d 263 (3d

Cir. 2007) (affirming the district court’s consideration of a preliminary hearing transcript as a

public record in ruling on a motion to dismiss).

omitted)); Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017). The Third Circuit

has outlined the proper analysis: “First, we assess the evidence the plaintiff asserts

was recklessly omitted from the affidavit. Next, we reconstruct an affidavit that

includes any recklessly omitted information. And finally, we assess the materiality

of the omitted information to the probable cause determination.” Dempsey, 834 F.3d

at 470. An omission is reckless if the affiant “withholds a fact in his ken that ‘[a]ny

reasonable person would have known . . . was the kind of thing the judge would wish

to know.’” Id. (quoting Wilson, 212 F.3d at 788) (citation omitted).

Here, drawing all reasonable inferences in Rivera-Guadalupe’s favor, the

operative complaint adequately alleges that Pierce recklessly omitted facts from the

affidavit. As Rivera-Guadalupe points out, Pierce’s affidavit in support of the arrest

warrant and criminal complaint failed to specify that it was Scales, who was neither

at the shooting nor knew the shooter, who allegedly spotted Rivera-Guadalupe with

the shooter. Without explanation or equivocation, Pierce’s affidavit equated the

“unidentified male” shooter with “the unidentified male” whom Scales observed

with Rivera-Guadalupe shortly after the shooting. (Doc. 79-3 at 7–8.) From this, it

can be reasonably inferred that Pierce overstated the certainty of the identification

and thereby misrepresented the significance of the observation.4 A reasonable person

4 The pleadings do not illuminate any other facts within Pierce’s knowledge from which he could

have reasonably concluded that the two men were the same. The court cannot accept, for the truth

of the matter, Scales’s testimony about the man’s general physical description or infer that Pierce

would have known that a judge would wish to know, as Pierce did, that the person

who allegedly observed Rivera-Guadalupe with the shooter lacked a foundation for

that identification. See Andrews, 853 F.3d at 705 n.17 (finding an affidavit to be

misleading where the officer overstated the confidence of the victim’s positive

identification).

Moreover, the criminal complaint supports Rivera-Guadalupe’s contention

that Pierce recklessly omitted various facts which cast substantial doubt on

Valkosak’s reliability. In the affidavit of probable cause, Pierce failed to mention

that Valkosak had relayed his observations while heavily medicated in the intensive

care unit. He also failed to mention that Valkosak had admitted to Pierce that, at the

time of his alleged observation, he was under the influence of a drug with

psychoactive properties. Even further, a reasonable inference can be drawn that

Pierce misrepresented the sources of his information in the affidavit of probable

cause by stating at the outset that he learned the presented information from

“witnesses,” when the key allegations of Rivera-Guadalupe’s conduct were supplied

to Pierce solely by Valkosak.5

knew at the time that Scales’s description substantively matched several witnesses’ description of

the shooter. (See Doc. 77-3 at 44:5–48:16 (Scales testified at the preliminary hearing that he saw

Rivera-Guadalupe with a young, clean-shaven African-American fellow in dark-colored clothing);

Doc. 60-1 ¶¶ 17, 18, 27 (Valkosak and another witness similarly described the shooter as an

African American male in dark clothes).)

5 In Pierce’s answer to the complaint, he admitted that he relied on Valkosak’s statement that

Rivera-Guadalupe “took a gun from under the mattress and fled.” (Doc. 65 ¶¶ 38, 41.)

A reasonable person would be aware that a judge would want to know these

details, as Valkosak’s compromised state during the interview and at the time of his

initial observations meaningfully impact his credibility and potentially undermine

the believability of his story.6 Observations made under the influence of

psychoactive drugs are less reliable as a matter of course, as are stories relayed by a

heavily medicated patient in the immediate aftermath of suffering a gunshot injury.

It was therefore reckless for Pierce not to disclose Valkosak’s state of mind at the

scene of the crime or during the hospital bedside interview, as was it reckless to

imply that Valkosak was not the sole witness to supply information to support the

complaint’s key allegations. See Dempsey, 834 F.3d at 470 (noting that the complex

circumstances which impact officers’ credibility determinations “underscore how

important it is, where exigencies do not require an immediate arrest, that officers

undertake a careful investigation before making the serious decision to file a criminal

complaint and that they include in the affidavit all information ‘any reasonable

Furthermore, the fact that the Commonwealth did not introduce any other witnesses to testify at

trial that Rivera-Guadalupe possessed a gun or stole money further supports that Valkosak was the

only witness who relayed Rivera-Guadalupe’s alleged conduct to Pierce. (See generally Doc. 77-

1 and 77-2.)

6 Indeed, the record indicates that Pierce was, in fact, cognizant of Valkosak’s diminished state, as

he later testified that he was concerned that Valkosak could not provide a reliable statement in his

medical condition. (Doc. 77-2 at 168:13–24 (trial); Doc. 77-3 at 62:10–21 (preliminary hearing).)

Pierce’s testimony can be considered for its truth because an admission by a party-opponent is

excluded from the definition of hearsay. See Fed. R. Evid. 801(d)(2)(A).

person would know that a judge would want to know’ in making a probable cause

determination”) (internal citation omitted).

Having determined that these omissions were reckless, the court next

reconstructs the affidavit of probable cause to cure the omissions. See Dempsey, 834

F.3d at 470 (requiring courts to perform a word-by-word reconstruction of an

affidavit that contains reckless or intentional misrepresentations). The reconstructed

affidavit follows, and the amendments are bracketed and bold:

On 5/22/2017 about 2335 hours Dauphin County Dispatch received a

call about a shooting which took place at PLAINTIFF’S ADDRESS7 in

the City of Harrisburg. Patrol Officers were directed to apartment B-3

where the victim, VALKOSAK, was located on the floor.

It was discovered that VALKOSAK received a single gun shot to the

stomach area of his person. VALKOSAK was transported to Hershey

Medical Center as a trauma and received Emergency Surgery and

remained in intensive care. I responded to the scene for the

investigation and secured a search warrant for the apartment where

VALKOSAK was located. Several items were seized to include

information verifying that Jorge Rivera-Guadalupe was the renter of the

apartment/room and a small amount of marijuana.

Through the investigation it was learned from witnesses that Jorge was

in some type of a fight days prior and sustained minor injuries to his

person to include a black eye. Jorge, also had knowledge that

VALKOSAK had recently received some form of Worker

Compensation Settlement which only Jorge and his roommate knew

about.

Jorge invited VALKOSAK over to his place of residence for protection

and to get even with the individuals who fought with him previously.

7 Rivera-Guadalupe’s address and Valkosak’s name were redacted from the filed document. (Doc.

79-1 at 7–8.) To clarify which information the court has unredacted, the name or an explanatory

placeholder has been inserted in all capital letters.

An unidentified male arrived and fought with VALKOSAK briefly and

eventually fired two gun shots, however, only one struck VALKOSAK

which was in his stomach area.

After VALKOSAK was shot the unidentified male fled the scene on

foot. [Valkosak informed me of the following:] During the altercation

Jorge was also in possession of a firearm, however, he did not attempt

to protect VALKOSAK and once he was laying on the ground he went

through his pockets taking approximately $400 in U.S. currency and

vehicle keys and then he fled the scene. [Valkosak admitted to me

that, at the time of this observation, he was under the influence of

K-2, a drug with psychoactive properties. Valkosak related his

account to me while he was in the intensive care unit and heavily

medicated. I did not take a formal statement from Valkosak

because I was concerned that Valkosak could not provide a reliable

statement given his medical condition.]

It should be noted that Jorge is not licensed to carry a firearm and he

has previously been convicted of enumerated offenses.

The unidentified male and Jorge were observed together [Stanley

Scales, Valkosak’s roommate who was not present for the shooting,

observed Jorge with an unidentified male] in another area several

minutes after the shooting. With the information provided Jorge is

being charged with numerous charges stemming from this incident. It

should be noted that the investigation is still ongoing.

(See Doc. 79-1 at 7–8.)

The final inquiry is whether, in the context of the reconstructed affidavit, the

omissions were “material, or necessary, to the finding of probable cause” Dempsey,

834 F.3d at 477 (quoting Wilson, 212 F.3d at 787). Probable cause “exists whenever

reasonably trustworthy information or circumstances within a police officer’s

knowledge are sufficient to warrant a person of reasonable caution to conclude that

an offense has been committed by the person being arrested.” Andrews, 853 F.3d at

701 n.13 (3d Cir. 2017) (internal citation omitted). Stated differently, there must be

“a ‘fair probability’ that the person committed the crime at issue.” Wilson, 212 F.3d

at 789 (internal citation omitted).

The Third Circuit has held generally that a victim’s statement alone may

establish probable cause “in the absence of independent exculpatory evidence or

substantial evidence of [a] witness’s own unreliability that outweighs the probable

cause that otherwise exists.” Dempsey, 834 F.3d at 477–78 (quoting Wilson, 212

F.3d at 790) (brackets and internal quotation marks omitted). However, the standard

does not “require that officers correctly resolve conflicting evidence or that their

determinations of credibility, were, in retrospect, accurate,” see Wright v. City of

Phila., 409 F.3d 595, 603 (3d Cir. 2005), and “some ‘unreliability or exculpatory

evidence’ will not ‘fatally undermine[ ]’ probable cause otherwise established.”

Dempsey, 834 F.3d at 478 (quoting Wilson, 212 F.3d at 790). The probable cause

inquiry is fact intensive and generally one for the jury. Id. at 468; Halsey, 750 F.3d

at 300 (cautioning courts from granting a defendant “summary judgment in a

malicious prosecution case when there is a question of whether there was probable

cause for the initiation of the criminal proceeding”). To determine that probable

cause exists as a matter of law, the court must conclude that no reasonable jury could

find that the affidavit lacked probable cause. Dempsey, 834 F.3d at 477.

Here, a jury could reasonably find a lack of probable cause for the two firearm

charges.8 The only support for Rivera-Guadalupe’s possession of a gun in the

affidavit are Valkosak’s statements that Rivera-Guadalupe invited him over to fight

for him and possessed a firearm during the altercation, and Rivera-Guadalupe’s prior

criminal conviction prohibiting him from possessing a gun. Pierce admitted that they

never recovered a gun and that he relied on Valkosak’s statement that Rivera-

Guadalupe “took a gun from under the mattress and fled.” (Doc. 60-1 ¶¶ 38, 41; Doc.

65 ¶¶ 38, 41.) Because of the risk that Valkosak’s drug use and medication

compromised his recall—and considering the absence of any other facts to support

Rivera-Guadalupe’s possession of a firearm—a jury could reasonably find that the

reconstructed affidavit does not establish probable cause for these offenses. 9 See

Dempsey, 834 F.3d at 477–78; see also Andrews, 853 F.3d at 704 (holding that a

witness’s statement containing internal discrepancies, standing alone, did not

establish probable cause as a matter of law); see also Vassallo v. Fox, No. 4-CV-

8 The two firearm charges require a showing that the defendant possessed or controlled (unlawful

possession of a firearm) or carried (unlicensed firearm) a firearm. See 18 PA. STAT. AND CONS.

STAT. § 6105 (“A person who has been convicted of an offense enumerated in subsection (b) . . .

shall not possess, use, control, sell, transfer or manufacture . . . a firearm in this Commonwealth.”);

id. § 6106 (“[A]ny person who carries a firearm in any vehicle or any person who carries a firearm

concealed on or about his person, except in his place of abode or fixed place of business, without

a valid and lawfully issued license under this chapter commits a felony of the third degree.”).

9 Moreover, it may ultimately be shown that Pierce knew Rivera-Guadalupe did not ask Valkosak

to stay with him and that Valkosak instead volunteered his presence, as suggested by Valkosak’s

preliminary hearing testimony. (Doc. 77-3 at 20:11–21:5.)

697, 2004 WL 2827517, at *6 (E.D. Pa. Dec. 9, 2004) (a fact issue precluded

summary judgment where the only affidavit statement identifying the plaintiff as the

perpetrator came from a witness about whom the officer was aware of, but failed to

disclose, various details undermining the witness’s reliability); Brookins v. Cuiffi,

No. 11-CV-784, 2012 WL 1247154, at *7 (W.D. Pa. Mar. 19, 2012), report and

recommendation adopted in relevant part, No. 11-CV-784, 2012 WL 1252796

(W.D. Pa. Apr. 13, 2012) (holding that the officer’s knowledge of circumstances

tainting first witness’s credibility and the officer’s suspicion that the only other

witness was coached could cause a reasonable jury to find a lack of probable cause).

For similar reasons, a reasonable jury could also find a lack of probable cause

for the robbery charge, which is supported by the following affidavit facts:10 (1)

Rivera-Guadalupe knew about Valkosak’s cashed check; (2) he invited Valkosak to

his home; and (3) Valkosak stated that after he was shot, Rivera-Guadalupe stole his

cash. In the context of Valkosak’s and Rivera Guadalupe’s intimate friendship, as

alluded to in the affidavit’s statement about Valkosak’s protective conduct, the first

two facts appear to be innocent facts that, even taken in the totality of the

circumstances, are insufficient for probable cause. Cf. United States v. Cochran, 806

10 Under Pennsylvania law, a person commits this specific robbery offense when “in the course of

committing a theft, he . . . physically takes or removes property from the person of another by

force however slight.” 18 PA. STAT. AND CONS. STAT. § 3701.

F. Supp. 560, 563 (E.D. Pa. 1992) (“[A] set of otherwise innocent facts can, in

combination” give rise to probable cause). Thus, as with the firearm charges,

Valkosak’s statement about Rivera-Guadalupe’s conduct is material to the probable

cause determination, and a jury could reasonably find that the reconstructed affidavit

does not establish probable cause that Rivera-Guadalupe robbed Valkosak.

Finally, a jury could reasonably find a lack of probable cause for the charges

relating to Valkosak’s injury: attempted homicide, conspiracy to commit homicide,

conspiracy to commit aggravated assault, and conspiracy to recklessly endanger

another person.11 To show probable cause for these offenses, the affidavit would

need to establish a fair probability that Rivera-Guadalupe solicited the shooter to

commit the offense, agreed that the shooter would engage in the unlawful conduct

of the offense, or agreed to aid the shooter in planning or committing the offense.12

See 18 PA. STAT. AND CONS. STAT. §§ 306, 903. The affidavit’s only support for

11 Pierce’s affidavit of probable cause does not allege or imply that Rivera-Guadalupe shot

Valkosak or otherwise acted to cause his injury. As such, Rivera-Guadalupe’s liability for

attempted homicide could only be premised on his complicity. Under Pennsylvania law, a person

is liable as an accomplice for another person’s conduct when “with the intent of promoting or

facilitating the commission of an offense,” he “(i) solicits such other person to commit it; or (ii)

aids or agrees or attempts to aid such other person in planning or committing it.” See 18 PA. STAT.

AND CONS. STAT. § 306(b)(3), (c); see also Commonwealth v. Romero, 722 A.2d 1014, 1020

(1999); Commonwealth v. Thompson, 674 A.2d 217, 222–23 (1996).

12 To be guilty of a conspiracy charge, a person must intend to promote or facilitate the underlying

offense, and either “(1) agree[] with such other person or persons that they or one or more of them

will engage in conduct which constitutes such crime or an attempt or solicitation to commit such

crime; or (2) agree[] to aid such other person or persons in the planning or commission of such

crime or of an attempt or solicitation to commit such crime.” 18 PA. STAT. AND CONS. STAT. § 903.

coordination between Rivera-Guadalupe and the shooter are that (1) the attack

occurred after Rivera-Guadalupe invited Valkosak to his home; (2) Valkosak stated

that Rivera-Guadalupe possessed a gun during the attack but fled instead of

defending him; (3) and Scales observed Rivera-Guadalupe with an unidentified male

shortly after the shooting. The first and third facts are purely circumstantial and only

minimally suggestive of any coordination, so here too the probable cause

determination relies in large part on Valkosak’s impeached statement. Under the

totality of the circumstances, the reconstructed affidavit falls far short of establishing

probable cause for these charges as a matter of law.

Because a reasonable jury could find that the amendments to the affidavit

dissolve probable cause for the above charges, Rivera-Guadalupe plausibly alleges

that Pierce instituted criminal proceedings against him without probable cause for

all but one of the charges against him.13

3. Rivera-Guadalupe’s malicious prosecution claim is not defeated by a

finding of probable cause for one charge.

Pierce contends that he is nevertheless entitled to judgment on his malicious

prosecution claim because probable cause existed for at least one of the charges. (See

Doc. 79 at 9). Pierce relies on Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d

13 The only charge for which probable cause exists as a matter of law is possession of marijuana,

given that marijuana was found in Rivera-Guadalupe’s room. See 35 PA. STAT. § 780-113(a)(31)(i)

(criminalizing possession of even small amounts of marijuana for personal use).

Cir. 2005), in which the Third Circuit held that the plaintiff’s malicious prosecution

claim failed because probable cause existed for at least one of the charges, as already

determined in the false arrest context. However, the Third Circuit has also

subsequently applied a seemingly contradictory rule it later established in Johnson

v. Knorr, 477 F.3d 75, 83 (3d Cir. 2007) that “‘[p]robable cause on one charge does

not foreclose a malicious prosecution cause of action’ based on additional charges

for which there was no probable cause.” Dempsey, 834 F.3d at 477 (quoting

Johnson, 477 F.3d at 83); Harvard, 973 F.3d at 199 n.3 (applying Johnson); see also

Kossler v. Crisanti, 564 F.3d 181, 194 (3d Cir. 2009), abrogated on other grounds

by Thompson v. Clark, 142 S. Ct. 1332 (2022) (noting that the holdings in Johnson

and Wright are difficult to reconcile).

The Johnson court, while not discounting Wright’s precedential status, did not

“understand Wright to establish legal precedent of such broad application that it

would ‘insulate’ law enforcement officers from liability for malicious prosecution

in all cases in which they had probable cause to arrest the plaintiff on any one

charge.” Johnson, 477 F.3d at 83 (citing Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.

1991)). By factually distinguishing Wright, Johnson clarified that the Wright court’s

dismissal of a malicious prosecution claim on the identical basis for which it

dismissed the false arrest claim was unique to the facts of the case. Id. at 84–85; see

also Eaton v. Figaski, No. 21-3094, 2022 WL 17831444, at *2 (3d Cir. Dec. 21,

2022) (acknowledging “the narrow confines to which Johnson relegated Wright”).

The Johnson court further reasoned that, “[i]n the case of prosecution, unlike arrest,

unfounded charges ‘almost surely will place an additional burden on the defendant,’

and thus we must consider probable cause as to each of the charges.” Dempsey, 834

F.3d at 477 (citing Johnson, 477 F.3d at 84). The Third Circuit acknowledged that

“analysis of malicious prosecution claims involving multiple charges,” like the

probable cause inquiry itself, “is a fact-intensive one.” Kossler, 564 F.3d at 194

(noting that courts analyzing such malicious prosecution claims must “wrestle with

the approaches set forth in Johnson and Wright to determine which provides the

more appropriate framework to apply to a given set of facts”).

Thus, the court turns to the specific facts of Wright and Johnson. In its

previous decision, the court recounted these cases in some depth and will not repeat

its review here. (See Doc. 58 at 10–15.) In summary, Wright’s malicious prosecution

claim stemmed from an incident in which she broke into a residence, in which she

had just been sexually assaulted, to reclaim her clothing; in addition to her own

belongings, she took some items to purportedly help her identify her perpetrators

and other moderately valuable items with no evidentiary value. Wright, 409 F.3d at

597. During a police interview, she admitted that she broke into the house and took

the property. Id. An officer prepared an affidavit of probable cause and, with an

assistant district attorney’s approval, arrested Wright for criminal trespass, burglary,

and theft. Id. at 598. However, all charges against Wright were dismissed at the

preliminary hearing, nearly two months after her arrest, when the homeowner failed

to appear. Id. The Third Circuit held that, based in part on Wright’s admissions, the

officer-defendant had probable cause as a matter of law to arrest Wright for criminal

trespass, which was fatal to her false arrest claim. Id. at 603. It later concluded—

without citing authority or articulating a legal rule—that probable cause for that

charge also “dispose[d] of her malicious prosecution claims with respect to all of the

charges brought against her, including the burglary,” without analyzing probable

cause for the other charges. Id. at 604.

Two years later, in Johnson, the specific question on appeal was whether a

finding of probable cause to arrest the plaintiff on one charge, without any finding

of probable cause on other charges, defeats a malicious prosecution claim. Johnson,

477 F.3d at 78. The criminal prosecution underlying Johnson involved a physical

altercation in a parole office waiting room between parolee Johnson and several

parole officers. Id. at 78–79. Johnson’s malicious prosecution action alleged that the

defendant-officer provided false information to an investigating officer, who with

the approval of an assistant district attorney, filed a criminal complaint charging

Johnson with simple assault, aggravated assault, terroristic threats, and reckless

endangerment. Id. at 79–81. Johnson was arrested and detained for two days before

posting bail, and a state court judge dismissed Johnson’s charges approximately one

month later, following the preliminary hearing. Id. at 79. In Johnson’s malicious

prosecution action, the district court found probable cause for the terroristic threats

charge and relied on Wright to grant summary judgment to the defendant-officer. Id.

at 81. The Third Circuit reversed and remanded, instructing the district court to

decide whether probable cause existed for each charge. Id. at 85.

Confronted with the divergent facts of Johnson and Wright, the court is here

compelled to apply the rule in Johnson. Pierce’s allegedly reckless

misrepresentations are substantively analogous to the Johnson defendant’s

intentional misrepresentations, and unlike the Wright defendant’s affidavit of

probable cause containing no alleged misrepresentations. Based in part on this very

distinction, the Johnson court did not apply the rule implied from Wright’s holding.

Id. at 84. Following this reasoning, the court will apply Johnson here.14 See Harvard,

973 F.3d at 199 n.3 (applying the Johnson rule in a case involving an affiant-officer’s

reckless omission of facts material to probable cause); Dempsey, 834 F.3d at 477

(same).

Perhaps even more significantly, the facts in this case implicate Johnson’s

concern that drawing a rule of general applicability from Wright would permit

14 Pierce’s argument that Johnson should not be applied to cases involving multiple charges that

relate to a single incident would contravene Harvard. See Harvard, 973 F.3d at 197–98, 199 n.3

(applying the Johnson rule notwithstanding that all charges related to a single incident and were

filed simultaneously).

officers to “tack on more serious, unfounded charges which would support a high

bail or a lengthy detention, knowing that the probable cause on the lesser offense

would insulate him from liability for malicious prosecution on the other offenses.”

Id. at 83 (quoting Posr, 944 F.2d at 100); id. at 81 (quoting the district court’s

acknowledgement that “ideological and philosophical absurdities . . . [could]

accompany the application of [Wright to the facts of this case.]”) (internal citation

omitted). Here, the reconstructed affidavit only establishes probable cause as a

matter of law for a misdemeanor marijuana offense, and Pierce’s alleged

misrepresentations permitted him to pile on many serious charges, including an

attempted homicide offense, which alone exposed Rivera-Guadalupe to up to forty

years of imprisonment. See 18 PA. CONS. STAT. § 1102(c).

Furthermore, given the vast differential between a single misdemeanor charge

and multiple unfounded felony charges, it is reasonable to infer that the unsupported

offenses imposed greater limitations on Rivera-Guadalupe’s liberty, especially

considering he was unable to post bail and spent more than a year and a half in

prison. See Blair v. City of Pittsburgh, 711 F. App’x 98, 103 n.5 (3d Cir. 2017)

(requiring plaintiffs to show that the unfounded charges “resulted in additional

restrictions on his liberty beyond those attributable to the prosecution on the [ ]

charges for which there was probable cause”) (quoting Johnson, 477 F.3d at 86).

The additional charges also unquestionably increased the burden of Rivera-

Guadalupe’s trial defense, as the prosecution maintained all nine charges until “the

outset of trial,” as well as multiple of the charges through to verdict. (Doc. 60-1

¶ 50.) See Johnson, 477 F.3d at 85; contra Wright, 409 F.3d at 598 (charges

dismissed for failure to prosecute within two months of the plaintiff’s arrest).

In conclusion, Rivera-Guadalupe’s allegations present material issues of fact

as to whether Pierce violated his Fourth Amendment right to be free from malicious

prosecution by recklessly omitting material facts from the affidavit of probable

cause, which caused Rivera-Guadalupe to be prosecuted for multiple charges that a

reasonable jury could conclude were not supported by probable cause.

B. Pierce’s alleged conduct violates a clearly established right.

Having determined that Rivera-Guadalupe has alleged a Fourth Amendment

violation, the court turns to whether the right was clearly established at the time of

the alleged violation. In doing so, the court must first “define the right allegedly

violated at the appropriate level of specificity . . . in light of the specific context of

the case.” Jefferson, 21 F.4th at 81 (quoting Peroza-Benitez v. Smith, 994 F.3d 157,

165 (3d Cir. 2021)). Then, the court must examine existing case law to determine

whether the “[t]he contours of the right [are] sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). “Existing precedent is sufficient to place a

constitutional question beyond debate and to defeat qualified immunity only if it is

controlling authority in the relevant jurisdiction, or if a robust consensus of cases of

persuasive authority in the Court of Appeals has settled the question.” Sauers v.

Borough of Nesquehoning, 905 F.3d 711, 719 (3d Cir. 2018) (internal citations,

quotation marks, and brackets omitted).

Based on the nature of Pierce’s alleged conduct, the court need not belabor

this question. Third Circuit precedent unequivocally demonstrates that an officer

violates a clearly established right by submitting an affidavit of probable cause in

which he recklessly disregards the truth. See Lippay v. Christos, 996 F.2d 1490, 1504

(3d Cir. 1993) (“If a police officer submits an affidavit containing statements he

knows to be false or would know are false if he had not recklessly disregarded the

truth, the officer obviously failed to observe a right that was clearly established.

Thus, he is not entitled to qualified immunity.”) (citing Malley v. Briggs, 475 U.S.

335, 345 (1986)); see also Wilson, 212 F.3d at 798 (Pollack, J., concurring in part)

(“The right not to be arrested on the basis of a warrant obtained on the basis of a law

enforcement officer’s representations or omissions made in reckless disregard of the

truth is a clearly established right.”) (citing Lippay, 996 F.2d at 1504); Karnes v.

Skrutski, 62 F.3d 485, 492 n.3 (3d Cir. 1995) (“Lippay provides an example of cases

where proof of the Fourth Amendment violation necessarily proves a lack of

reasonableness as to the existence of that violation.”). Because Pierce’s alleged

conduct violates a clearly established right, Pierce is not entitled to qualified

immunity at this juncture.

IV. CONCLUSION

For the reasons explained above, Defendant Jacob Pierce’s motion for

judgment on the pleadings (Doc. 73) will be denied. An appropriate order shall

follow.

s/ Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge

Dated: March 27, 2023