Opinion

JAMES v. BRANT

Court: District Court, W.D. Pennsylvania
Filed: Jan 2, 2024
Cited by: 0 cases
Authority: More cited than 31.8%

finding that probable cause supported an Aggravated Assault charge where the defendant “pushed [an] officer[,]” “engaged in an altercation with the officer[,]” and “attempted to punch the officer”

How later courts described this case

finding that probable cause supported an Aggravated Assault charge where the defendant “pushed [an] officer[,]” “engaged in an altercation with the officer[,]” and “attempted to punch the officer”
“[T]he criminal proceedings ended in their favor when dismissed][.]”
reasoning that there was “nothing in appellant’s words or conduct from which the jury could infer” intent to cause bodily injury
upholding a defendant's conviction for Terroristic threats where he threatened to kill two police officers

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DANIEL JAMES, Administrator of the ) Case No. 3:22-cv-106

Estate of Harry James, )

)

Plaintiff, ) JUDGE KIM R. GIBSON

)

v. )

)

JOHN MARTIN BRANT and GREGORY __)

ALLAN GARLOCK, )

)

Defendants. )

MEMORANDUM OPINION

Pending before the Court is Defendant Gregory Allan Garlock’s (“Officer Garlock”)

Motion to Dismiss Plaintiff Harry James’s! (“James”) Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). (ECF No. 14). The issues in Officer Garlock’s Motion have been fully briefed,

(ECF Nos. 15, 22, 25), and the Motion is ripe for disposition. For the following reasons, the Court.

GRANTS Officer Garlock’s Motion.

I. Jurisdiction and Venue

The Court has subject-matter jurisdiction over James's 42 U.S.C. § 1983 claims asserted at

Counts I, II, and III of his Complaint because they arise under federal law. See 28 U.S.C. §§ 1331,

1343(a)(3). The Court also has subject-matter jurisdiction over James’s Pennsylvania state law

1 The Court notes that Harry James passed away in April 2023, nearly a year after this suit was filed. (See

ECF No. 40). Daniel James, Harry James’s son and Administrator for his Estate, expressed his desire to

continue with this suit. (Id.). Accordingly, Daniel James was substituted as Plaintiff in this case pursuant to

Federal Rule of Civil Procedure 25(a)(1). (See ECF No. 41).

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claim asserted at Count IV of his Complaint because it arises from the same case or controversy

as his § 1983 claims. See id. § 1367.

Venue is proper under 28 U.S.C. § 1391(b) because a substantial portion of the events

giving rise to this suit occurred in the Western District of Pennsylvania.

II. Background

The following facts are drawn from James’s Complaint and the Exhibit attached thereto?

(ECF No. 1). The Court construes the Complaint in the light most favorable to James, and takes

the factual allegations therein as true, as it must in ruling on a motion to dismiss.

On January 14, 2018, two law enforcement Officers—Sergeant John Martin Brant

(“Sergeant Brant”) and Officer Garlock (collectively, “Defendant Officers”) —were notified of a

911 call from a Dairy Queen in Fayette County, Pennsylvania, explaining that a customer was

acting strange. (Id. { 11). James was the customer. (Id.). The events that followed Defendant

Officers’ arrival resulted in James being sent to the hospital and later charged with numerous

crimes. (Id. {{{ 11-14).

An Affidavit of Probable Cause (alternatively, the “Affidavit”), which was prepared on

January 14, 2018, and signed by Trooper Melinda Churney, described what transpired in the

Dairy Queen from Defendant Officers’ perspective. (Id. 1] 17, 56). The Affidavit, in full, provides:

2 The Court notes that although James’s Complaint is titled “Amended Complaint[,]” (ECF No. 1), James

later clarified that his Complaint was simply “erroneously titled[,]” (ECF No. 22 at 1 n.1). Moreover, the

Court explains below why it properly considers the Exhibit attached to James’s Complaint at this stage of

the proceeding. See infra Section IV.A.

3 As the Court will later explain, the Court can properly consider the Affidavit of Probable Cause, which

was attached as an Exhibit to Officer Garlock’s Motion to Dismiss, at this stage of the proceeding. See infra

Section IV.B. Moreover, the contents of the full Affidavit are relevant to the Court’s eventual analysis of

James’s malicious prosecution claim. See infra Section V.A.3. As such, the Court provides the full text of the

Affidavit in outlining the relevant background.

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On 1/14/18 at approximately 1706 hours, PSP Belle Vernon was forwarded a call from

Fayette County 911 from the Manager at the Dairy Queen, 540 National Pike East,

Brownsville, PA 15417, Redstone Township, Fayette County. The Manager had reported

that there was a male (defendant) in the restaurant acting strange. PSP Belle Vernon

didn’t have any cars in the area; therefore, Redstone Township Police Department was

called to assist until we could get on scene. On 1/14/1[8] at approximately 1715 hours,

John Martin BRANT (victim), who is a Sergeant with the Redstone Township Police

Department and Gregory Allan GARLOCK (victim), who is an Officer with the Luzerne

Township Police Department arrived on scene together.

As Set. BRANT and Ofc. GARLOCK got out of their patrol vehicles, Sgt. BRANT

recognized the male, who he was able to identify as Harry JAMES (defendant) from

having recent dealings with him. Sgt. BRANT saw the male seated near a window seat.

As soon as the defendant saw the Officers, he stood up from a seated position and began

yelling at the Officers and throwing his hands up in the air at them from inside of the

window. As Sgt. BRANT and Ofc. GARLOCK approached the door to enter the

restaurant, the defendant walked towards the door and stood in front of the doorway.

The defendant had his wooden cane up in the air and was yelling at the Officers, “This is

a spiritual war, I am going to kill you guys!” Sgt. BRANT then started calling the

defendant by his name, by saying, “Harry, put the cane down.” Sgt. BRANT related that

he probably told the defendant to put his cane down approximately eight times. Sgt.

BRANT related that the defendant then put his cane to his side, so he thought that he

was going to calm down. Sgt. BRANT related that the defendant then began waiving his

cane around again. Sgt. BRANT related that he then opened the double door and tazed

the defendant because he was not complying with his verbal commands. Sgt. BRANT

related that one tazer probe struck the defendant in his navel area and one struck him in

his stomach. Sgt. BRANT related that the defendant then staggered and fell down on his

side.

Ofc. GARLOCK then attempted to handcuff the defendant as he was lying on his side.

The defendant then began resisting arrest and started grabbing at Ofc. GARLOCK and

kicking him. The defendant was grabbing Ofc. GARLOCK’s gunbelt and was swinging

at him. Set. BRANT attempted to taze the defendant again, but it had no [e]ffect. The

defendant then took his cane and swung it at Ofc. GARLOCK, striking the area of his

right ribs. Ofc. GARLOCK then pepper sprayed the defendant in the area of his eyes,

which had no [e]ffect on the defendant. The defendant continued yelling and grabbing

at the officer’s, saying things like, “This is a war!” Ofc. GARLOCK related that his

glasses fell off during the scuffle and he skinned his left pinky knuckle, causing it to

bleed. Ofc. GARLOCK further related that when the defendant kept going for his belt,

he grabbed his baton and struck the defendant a few times with it on his side, which was

not [e]ffective. Ofc. GARLOCK related that he was finally able to get one cuff around the

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defendant’s wrist and used the other handcuff to hold the defendant down until Officer

RUSSEL with the California Borough Police Department arrived on scene and assisted in

getting the defendant handcuffed.

Your affiant, respectfully request that a warrant be issued for the defendant, who is

currently in Uniontown Hospital.

(ECF No. 15-1).

According to James, Defendant Officers provided all the information contained in the

Affidavit. (ECF No. 1 156). The Affidavit ends with James being detained, but James explains

that he was subsequently treated at a local hospital for injuries he suffered as a result of his

encounter with Defendant Officers, including a broken rib and cuts on his head. (Id. {J 13—

14). James was then transferred to a different facility where he underwent a psychiatric

evaluation. (Id. J 14).

While James received treatment, he was charged on January 14, 2018, with the

following offenses based on the Affidavit of Probable Cause: (1) two counts of Aggravated

Assault in violation of Pa. Cons. Stat. § 2702(a)(3); (2) two counts of Terroristic Threats in

violation of Pa. Cons. Stat. § 2708(a)(1); (3) two counts of Simple Assault in violation of Pa.

Cons. § 2701; (4) three counts of Resisting Arrest in violation of Pa. Cons. Stat. § 5104; (5) one

count of Disorderly Conduct in violation of Pa. Cons. Stat. § 5503(a)(1); and (6) two counts of

Summary Harassment in violation of Pa. Cons. Stat. § 2709(a)(1). (Id. {1 12; ECF No. 1-1 at 2).

Therefore, when James was discharged from the hospital on February 13, 2018, he was

placed in state custody and confined to the Fayette County Prison. (Id. 1 15). James was

released on March 8, 2018, after posting a bond of $35,000 and spending a total of twenty-

three days in jail. (ECF No. 1 { 16).

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On March 20, 2021, in response to a Petition for a Writ of Habeas Corpus James filed,

an Omnibus Pretrial Hearing was held before Judge Wagner at the Fayette County Court of

Common Pleas. (Id. { 28). Sergeant Brant, but not Officer Garlock, testified at the hearing. (Id.

29).4 Further, surveillance camera footage of James’s encounter with Defendant Officers at

the Dairy Queen was played at the hearing. (Id. J 34).

Just over two months after the Omnibus Pretrial Hearing, on May 24, 2021, Judge

Wagner issued an opinion dismissing all charges pending against James. (Id. [J 36, 45). Judge

Wagner first found that, after viewing the video, James was not waving his walking cane

towards Defendant Officers in a threatening manner. (Id. { 36-37). Moreover, Judge Wagner

found that James did not hit or kick Defendant Officer during the encounter. (ECF No. 1-1 at

5). Judge Wagner also indicated that James was sitting down, or beginning to sit down, when

Sergeant Brant entered the Dairy Queen and tased him. (ECF No. 1 { 38). All told, because

Judge Wagner concluded that the Commonwealth failed to establish sufficient probable cause

that James committed the charged offenses, he dismissed all charges. (ECF No. 1-1 at 3, 6).

In part predicated on the facts contained in Judge Wagner’s opinion that contradict

those provided in the Affidavit of Probable Cause, James alleges that the Affidavit “was based

on falsehoods.” (ECF No. 1 { 62). To that end, James also alleges that he did not go for or grab

4 Because only Officer Garlock has moved to dismiss James’s Complaint, the Court does not recount

Sergeant Brant’s testimony at the Omnibus Pretrial Hearing, which has no relevance to the claims as

asserted against Officer Garlock.

5 The Court notes that it only recounts the portions of Judge Wagner’s opinion— which was attached as an

Exhibit to James’s Complaint—that are relevant to James’s claims against Officer Garlock. Like the

Omnibus Pretrial Hearing, portions of the opinion may be relevant to James’s claims against Sergeant

Brant. But because only Officer Garlock has moved to dismiss, the Court only includes the information

relevant to the claims as asserted against him.

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at Officer Garlock’s gun belt, which the Affidavit states was the precursor to Officer Garlock’s

use of his pepper spray and baton. (ECF No. 1 { 36; ECF No. 22 at 3). Relatedly, James also

alleges that he did not strike Officer Garlock with his walking cane, or kick Officer Garlock,

as the Affidavit states.

On June 30, 2022, James filed his Complaint against Defendant Officers in the United

States District Court for the Western District of Pennsylvania. (ECF No. 1). In his Complaint,

James asserts four claims against Defendant Officers in their individual capacities: (1) a Fourth

Amendment malicious prosecution claim pursuant to § 1983 at Count I, (Id. 47-73); (2) a

fabricated evidence claim pursuant to the Due Process Clause of the Fourteenth Amendment

at Count II, (Id. 11 74-83); (3) a § 1983 conspiracy claim at Count IT, (Id. [] 84-92); and (4) a

state law malicious prosecution claim at Count IV, (Id. {| 93-99).

On September 16, 2022, Officer Garlock filed a Rule 12(b)(6) Motion to Dismiss James’s

Complaint for failure to state a claim against him, along with a brief in support of that Motion.

(ECF Nos. 14, 15). On October 6, 2022, James filed a brief in response to Officer Garlock’s

Motion. (ECF No. 22). And on October 24, 2022, Officer Garlock filed a reply to James’s

response to his Motion to Dismiss. (ECF No. 25).

Ill. Legal Standard

A complaint may be dismissed under Rule 12(b)(6) for “failure to state a claim upon which

relief can be granted.” FED. R. CIV. P. 12(b)(6). For a complaint to survive a Rule 12(b)(6) motion

to dismiss, itneed only provide “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting FED. R. □□□□

P. 8(a)(2)).

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Under the pleading regime established by Twombly and Iqbal, a court reviewing the

sufficiency of a complaint must take three steps.® First, the court must “tak[e] note of the elements

[the] plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the

court should identify allegations that, “because they are no more than conclusions, are not

entitled to the assumption of truth.” Id. at 679. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212,

224 (3d Cir. 2011) (“[M]Jere restatements of the elements of [a] claim . . . are not entitled to the

assumption of truth.”) (citation omitted).

Third, “[w]hen there are well-pleaded factual allegations, [the] court should assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal,

556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. See also Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). The plausibility

determination is “a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679.

IV. Scope of the Record

As an initial matter, the parties’ reliance on four items throughout their briefing

warrants the Court’s attention. First, James attached a copy of Judge Wagner’s state court

opinion as an Exhibit to his Complaint. (See ECF No. 1-1). Second, Officer Garlock attached a

copy of the Affidavit of Probable Cause as an Exhibit to his Motion to Dismiss. (See ECF No.

6 Although Iqbal described the process as a “two-pronged approach,” Iqbal, 556 U.S. at 679, the Supreme

Court noted the elements of the pertinent claim before proceeding with that approach. See id. at 675-79.

Thus, the Third Circuit has described the process as a three-step approach. See Connelly v. Lane Const. Corp.,

809 F.3d 780, 787 (3d Cir. 2016); Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir. 2011) (citing

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)).

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15-1). Third, Officer Garlock also attached a copy of the transcript from the Omnibus Pretrial

Hearing to his Motion. (See ECF No. 15-2). And fourth, Officer Garlock attached a copy of the

surveillance video depicting the subject incident to his response to James’s reply. (See ECF

No. 25-1).

When ruling upon a motion to dismiss pursuant to Rule 12(b)(6), the Court must

“generally consider only the allegations in the complaint, exhibits attached to the complaint,

matters of public record, and documents that form the basis of a claim.” Lum v. Bank of Am., 361

F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426

(3d Cir. 1997)). Put differently, the Court “may consider certain narrowly defined types of

material without converting the motion to dismiss to a summary judgment motion, such as a

document that is integral to or explicitly relied upon in the complaint.” Jones v. Middletown Twp.,

253 F. App’x 184, 187 (3d Cir. 2007).

Such materials also include “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.”

Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). These

materials may be considered because “the primary problem raised by looking to documents

outside the complaint—lack of notice to the plaintiff—is dissipated where the plaintiff has actual

notice... and has relied upon [those] documents in framing the complaint.” Schmidt v. Skolas, 770

F.3d 241, 249 (3d Cir. 2004) (internal quotation marks and citation omitted). Where these

requirements are not satisfied, the Court may not consider “extraneous evidence submitted” by

the parties when ruling on a motion to dismiss. Pension Ben. Guar. Corp., 998 F.2d at 1196.

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The Court must now determine whether consideration of these four items is proper at

this stage of the proceeding. The Court addresses each item in turn.

A. Judge Wagner’s Opinion

As previously noted, James attached a copy of Judge Wagner’s opinion dismissing the

charges against him as an Exhibit to his Complaint. The Third Circuit has been clear that

district courts may consider “exhibits attached to the complaint” when ruling upon a motion

to dismiss pursuant to Rule 12(b)(6). Lum, 361 F.3d at 222 n.3. And Federal Rule of Civil

Procedure 10 provides that “an exhibit to a pleading is part of the pleading for all purposes.”

FED. R. Civ. P. 10(c).

Moreover, Judge Wagner’s opinion is not only attached as an Exhibit to James’s

Complaint, it is likewise “integral to [and] explicitly relied upon in” his Complaint. Jones, 253

F. App’x at 187; (See ECF No. 1 {ff 36-46). Accordingly, it is proper for the Court to consider

Judge Wagner’s opinion in deciding Officer Garlock’s Motion to Dismiss.’

B. The Affidavit of Probable Cause

Turning to the Affidavit of Probable Cause, Officer Garlock attached a copy of the

Affidavit to his Motion to Dismiss. (ECF No. 15-1). Again, the Court may consider “an

undisputedly authentic document that a defendant attaches as an exhibit to a motion to

dismiss if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp., 998 F.2d

at 1196.

7 The Court explains further below how it interprets Judge Wagner’s opinion in conjunction with James’s

Complaint. See infra Section V.A.3.ii at 23 n.13.

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Here, neither party disputes the authenticity of the Affidavit attached to Officer

Garlock’s Motion. And there can be no doubt that James’s “claims are based on” the Affidavit.

Id. Indeed, as the Court explains further below, all of James’s claims stem from his allegation

that Officer Garlock provided false information to the affiant of the Affidavit of Probable

Cause. (See, e.g., ECF No. 1 48, 62, 79, 86).

Accordingly, because (1) the authenticity of the Affidavit is not disputed, (2) Officer

Garlock attached a copy of the Affidavit to his Motion, and (3) James’s claims are heavily

based on the Affidavit, the Court properly considers the Affidavit at this stage. See Shelley v.

Wilson, 339 F. App’x 136, 137 n.2 (3d Cir. 2009) (explaining that the district court properly

considered an affidavit of probable cause attached to the defendant’s motion to dismiss where

the affidavit was “referenced in [the plaintiff's] complaint” and “integral” to the plaintiff's

claim).

C. Omnibus Pretrial Hearing Transcript

Officer Garlock also attaches a copy of the transcript of the Omnibus Pretrial Hearing

held before Judge Wagner to his Motion to Dismiss. Because James’s Complaint details the

testimony offered at the Omnibus Pretrial Hearing, it is plausible that the transcript qualifies

as “a document that is integral to or explicitly relied upon in the complaint.” Jones, 253 F.

App’x at 187.

As a practical matter, however, the transcript bears no relevance to the Court’s task at

hand. Only Officer Garlock has moved to dismiss. In his Complaint, James does not allege

that Officer Garlock testified at or was involved in the Omnibus Pretrial Hearing. To the

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contrary, James states that “Defendant Brant was the sole witness that testified on behalf of

the Commonwealth” at the hearing. (ECF No. 1 29).

It appears that Officer Garlock’s intention in attaching the transcript to his Motion was

only to conclusively prove this point. (See ECF No. 15 at 11, 15) (arguing that the “Transcript

establishes that Officer Garlock did not appear for or participate” in the hearing); (arguing

the transcript “further establishes that . . . Officer Garlock also did not appear at James’[s]

hearing”). But, again, James readily admits that fact in his Complaint. (See ECF No. 1 29)

Because Officer Garlock was not involved in the Omnibus Pretrial Hearing, the transcript of

that hearing is of no import in assessing the sufficiency of James’s claims against him.’

Moreover, the Third Circuit has cautioned that “a court that examines a transcript of

a prior proceeding to find facts converts a motion to dismiss into a motion for summary

judgment.” Lum, 361 F.3d at 221 n.3 (citing S. Cross Overseas Agencies, Inc. v. Wah Kwong

Shipping Grp., Ltd., 181 F.3d 410, 427 n.7 (3d Cir. 1999)).? Because the only fact contained in the

transcript relevant to the disposition of Officer Garlock’s Motion—that he did not testify —is

admitted by James in his Complaint, the Court does not consider the Omnibus Pretrial

Transcript in analyzing Officer Garlock’s Motion.

D. The Surveillance Video

8 Of course, the transcript would be squarely relevant were the Court addressing a motion to dismiss on

behalf of Sergeant Brant. But James’s Complaint makes clear that any alleged impropriety on behalf of

Officer Garlock finds its basis in his relaying of information to the affiant of the Affidavit of Probable Cause,

not the Omnibus Pretrial Hearing.

9 The Court notes that, at first blush, there appears to be an inherent tension between its consideration of

Judge Wagner’s opinion and this line of precedent. For a more thorough discussion of the Court's

justification for considering Judge Wagner's opinion in light of this precedent, see infra Section V.A.3.ii at

23 n.13.

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Finally, the Court turns its attention to the surveillance video depicting the encounter

between James and Defendant Officers at the Dairy Queen, which Officer Garlock attached to his

response to James’s reply brief. (See ECF No. 25-1). In James’s reply brief, he requests that the

Court “take judicial notice” of the “video footage[.]” (ECF No. 22 at 2 n.2). But because James

never provided the Court with a copy of that video, Officer Garlock attached to his response “an

undisputed and authentic copy of the video which he obtained from Plaintiff.” (ECF No. 25 at 3)

(emphasis added). Accordingly, no party disputes the authenticity of the surveillance video.

Moreover, the surveillance video is both “integral to [and] explicitly relied upon in

[James’s] complaint.” Jones, 253 F. App’x at 187. For example, James alleges in his Complaint that

he cannot be “seen on video raising his walking cane[.]” (ECF No. 1 137). And, like the Affidavit

of Probable Cause, James’s Complaint relies on the video to show that Officer Garlock provided

allegedly false information to the affiant, which forms the basis of his claims. Therefore, the Court

can properly consider the surveillance video in deciding Officer Garlock’s Motion to Dismiss. See

Wade v. Colaner, No. 3:06-cv-3715, 2009 WL 1738490, at *4.n.1 (D. N.J. June 17, 2009) (explaining

that it was proper to consider a “videotape of the alleged incident” in deciding the defendant's

motion to dismiss because the plaintiff “relied on the existence of a videotape in his Complaint”).

V. Discussion

A. James’s Fourth Amendment Malicious Prosecution Claim Pursuant to § 1983 at Count I

James brings his § 1983 malicious prosecution claim against Officer Garlock under the

Fourth Amendment. (ECF No. 1 at 8). To state such a claim, James must establish:

(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

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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, 82 (3d Cir. 2007).

Here, Officer Garlock primarily argues that James has alleged insufficient facts to

support the first element—that Officer Garlock initiated criminal proceedings against James.

(ECF No. 15 at 11-15). But, in any event, to withstand Officer Garlock’s motion to dismiss,

James “must sufficiently allege all five elements of his malicious prosecution claim.” Bartow

v. Thomas, No. 3:13-cv-271, 2014 WL 2993786, at *8 (W.D. Pa. July 2, 2014). The Court therefore

addresses each element in turn.

1. Officer Garlock Initiated Criminal Proceedings Against James

James alleges that because Officer Garlock “knowingly provided false information for

the Affidavit of Probable Cause[,]” he “can be considered as initiating the subsequent criminal

proceedings against” James. (ECF No. 1 {| 48). Officer Garlock counters that “mere

involvement of a responding and/or assisting police officer in the arrest of an individual who

is later subjected to criminal proceedings generally does not satisfy the ‘initiation’ prong

under relevant federal law.” (ECF No. 15 at 12-13). To that end, Officer Garlock focuses on

the fact that he did not sign the Affidavit of Probable Cause or appear and provide testimony

at James’s pretrial hearing." (Id. at 14).

The Third Circuit has recognized that an Officer’s “submi[ssion of] an affidavit of

probable cause . . . initiate[s] criminal proceedings against” the criminal defendant for the

10 The Court notes that James admits that Sergeant “Brant was the sole witness that testified on behalf of

the Commonwealth” at the hearing, and James does not allege that Officer Garlock signed or submitted

the Affidavit of Probable Cause. (ECF No. 1 J 29, 59).

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purposes of a § 1983 malicious prosecution claim. Jerri v. Harran, 625 F. App’x 574, 582 (3d

Cir. 2015); see also Bircher v. Pierce, 610 F. App’x 194, 197 (3d Cir. 2015). But because Officer

Garlock did not “submit” the Affidavit of Probable Cause in this case, this principle does not

end the Court’s inquiry. (ECF No. 15-1).

By Officer Garlock’s telling, in order to show he initiated criminal proceedings, James

“must establish that Officer Garlock was not merely an assisting officer, but the officer who

completed paperwork such as the Criminal Complaint or Affidavit of Probable Cause, and/or

that he participated in the subsequent criminal hearings against James.” (ECF No. 15 at 13).

In assessing Officer Garlock’s argument on this score, the Court finds the Third Circuit’s

opinion in Halsey v. Pfeiffer particularly instructive. 750 F.3d 273 (3d Cir. 2014).

In Halsey, two Officers investigating a murder obtained what was later discovered to

be a falsified confession from the plaintiff, Halsey. Id. at 284. Based in part on this alleged

confession, the prosecutor decided to charge Halsey. Id. Halsey then sued the investigating

Officers, among other defendants, for malicious prosecution pursuant to the Fourth

Amendment under § 1983. Id. at 286.

At the district court, the investigating Officers argued that Halsey’s malicious

prosecution claim was meritless because it was the prosecutor, not them, who initiated the

criminal proceedings against Halsey. Halsey v. Pfeiffer, No. 09-1138, 2013 WL 646200, at *14 (D.

NJ. Feb. 21, 2013). Agreeing with the Officers, the district court entered summary judgment

in their favor on Halsey’s Fourth Amendment malicious prosecution claim, reasoning that the

prosecutor “used independent judgment in deciding to prosecute[.]” Id. at *15.

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But the Third Circuit, in reversing the district court’s grant of summary judgment to

the defendants, disagreed with this conclusion. Halsey, 750 F.3d at 296. The court began by

recounting, that “[i]t is settled law that ‘officers who conceal and misrepresent material facts

to the district attorney are not insulated from a § 1983 claim for malicious prosecution simply

because the prosecutor, grand jury, trial court, and appellate court all act independently to

facilitate erroneous convictions.” Id. at 297 (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1291

(10th Cir. 2004)).

The Third Circuit explained that “[i]f the officer influenced or participated in the

decision to institute criminal proceedings, they can be liable for malicious prosecution.” Id.

(citing Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010)). The court reasoned that

“Halsey’s malicious prosecution case against [the Officers] therefore should have survived

the causation inquiry” because “a rational jury could decide that [the Officers] tainted the

probable cause inquiry” by providing the confession. Id. at 299. “[W]hen combined with other

information known to” the prosecutor, the court explained, the confession “well might have

been enough to lead him to file the criminal complaint.” Id.

Halsey, therefore, undercuts Officer Garlock’s assertion that “police officers who do

not complete the paperwork associated with criminal proceedings, sign or swear to Affidavits

of Probable Cause, or participate in summary criminal proceedings” do not “initiate” criminal

proceedings under the malicious prosecution inquiry. (ECF No. 15 at 13). The Third Circuit

reasoned that Halsey presented a colorable malicious prosecution claim against the

investigating officers—who neither signed affidavits nor participated in subsequent criminal

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proceedings against Halsey—because “the contents of Halsey’s purported confession

encouraged [the prosecutor] to initiate Halsey’s prosecution.” Halsey, 750 F.3d at 299.

Here, Officer Garlock’s allegedly false averments are contained directly in the

operative document used to initiate the criminal proceedings against James. (ECF No. 15-1).

And allegedly providing false information to the affiant of the Affidavit of Probable Cause

certainly “influence[s] .. . the decision to institute criminal proceedings” by “taint[ing] the

probable cause inquiry|.]” Halsey, 750 F.3d at 297, 299. While the Halsey court inferred that the

information provided by the investigating Officers “might have been enough” to lead the

prosecutor to file the criminal complaint, the Court need not make such an inference here. Id.

at 299. Indeed, James plausibly alleges facts that indicate Officer Garlock provided false

information that was included in the Affidavit of Probable Cause attached to the Police

Criminal Complaint, which initiated the criminal proceedings against James.

Pierce v. Gilchrist, which the Third Circuit cited approvingly in its Halsey opinion, also

bolsters the conclusion that Officer Garlock can “initiate” criminal proceedings against James

even if he did not submit the Affidavit of Probable Cause or participate in the subsequent criminal

proceedings. 359 F.3d 1279 (10th Cir. 2004). There, the Tenth Circuit declined to dismiss the

plaintiff's § 1983 malicious prosecution claim against the Government's forensic analyst because

the plaintiff alleged that the analyst, “with knowing and reckless disregard for the truth, informed

the police and prosecutorial authorities” that certain evidence supported the defendant's

involvement in a crime even though the evidence tended to exonerate him. Id. at 1294-94.

The court explained that “§ 1983, by its terms, applies not only to a person who ‘subjects,’

but also to any person who ‘causes to be subjected . . . any citizen of the United States ... to the

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deprivation of any rights, privileges, or immunities secured by the Constitution and laws.’” Id. at

1292 (quoting 42 U.S.C. § 1983) (emphasis in original). “This suggests,” the court stated, “that

Congress was concerned not just with the officer who formally initiates the process that leads to

an unconstitutional seizure, but to all those who were the ‘cause’ of deprivations of constitutional

rights.” Id. Accordingly, the court held that the forensic analyst could not “hide behind’ the fact

that she neither initiated nor filed the charges against” the plaintiff, and therefore denied the

motion to dismiss the plaintiff's malicious prosecution claim. Id. at 1293.

Here, Officer Garlock suggests that because he did not submit or sign the Affidavit of

Probable Cause in this case, the “independent decision to seek a warrant breaks the causal chain

and insulates” him “from a section 1983 claim based on lack of probable cause for an arrest or

prosecution.” (ECF No. 15 at 12). But like the forensic analyst in Pierce, Officer Garlock cannot

hide behind the fact that he did not sign or submit the Affidavit of Probable Cause. James squarely

alleges that Officer Garlock “knowingly provided false information” to the affiant.1 (ECF No. 1

{ 48). As the Supreme Court has explained, “police [can]not insulate one officer’s deliberate

misstatement merely by relating it through an officer-affiant personally ignorant of its falsity.”

Franks v. Deleware, 438 U.S. 154, 164 n.6 (1978).

To be sure, myriad district courts within this circuit have reached similar conclusions

when faced with malicious prosecution claims launched against Officers who did not sign or

submit an Affidavit of Probable Cause, but provided information contained therein. See, e.g.,

Schultz v. Hughesville Borough, No. 4:10-CV-0262, 2011 WL 3273076, at *57—-59 (M.D. Pa. July 29,

11 The Court notes that, as explained below, see infra Section V.A.3.ii, the legal conclusion in text above is

properly supported by other factual averments James alleges in his Complaint. Accordingly, the Court

accepts this allegation as true throughout its analysis.

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2011) (holding that “a jury could reasonably conclude that [the defendant] Officer [] initiated the

charges” against the plaintiff where, notwithstanding the fact that the Officer did not prepare or

file the affidavit of probable cause, the evidence indicated that the Officer “helped procure the

filing of the affidavit” in part through “his statements to” the affiant); Lennon v. Sharon Hill

Borough, No. 12-cv-6701, 2014 WL 1395038, at *12, *16 (E.D. Pa. Apr. 10, 2014) (holding that the

plaintiff satisfied the initiation prong of his malicious prosecution claim as against defendant

Officers who “provided [the affiant] with allegedly false information that was used in completing

the affidavit of probable cause”); cf. Mason v. Mahon, No. 05-cv-1639, 2006 WL 781724, at *21 (E.D.

Pa. Mar. 23, 2006) (holding that “Plaintiff has not provided any evidence that Defendant [Officer]

initiated criminal proceedings against” him because “Defendant [Officer] did not provide any

information included in the Affidavit of Probable Cause[,]” which was prepared and signed by

other Officers).

Accordingly, the Court finds that because James alleges that Officer Garlock knowingly

provided false information to the affiant of the Affidavit of Probable Cause, which formed the

basis for James’s criminal prosecution, Officer Garlock “initiated” criminal proceedings against

James. James has, therefore, satisfied the first element of his malicious prosecution claim.

2. The Criminal Proceedings Ended in James’s Favor

As to this element, the Supreme Court recently explained that the “favorable termination”

requirement means only “that the criminal prosecution ended without a conviction.” Thompson

v. Clark, 142 S. Ct. 1332, 1341 (2022). Here, James alleges, and the state court opinion reflects, that

the charges against James were dismissed. (ECF No. 1 { 45; ECF No. 1-1 at 6).

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Because James’s criminal prosecution ended without a conviction, he has satisfied the

favorable termination element of his malicious prosecution claim. See, e.g., Harvard v. Cesnalis, 973

F.3d 190, 203 (3d Cir. 2020) (explaining that the proceedings ended in the plaintiffs favor where

one “charge was dismissed after the preliminary hearing, and [the plaintiff] was found not guilty

on the remaining charges”); DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005) (“[T]he

criminal proceedings ended in their favor when dismissed][.]”).

3. Officer Garlock Did Not Initiate the Proceeding Without Probable Cause

As previously noted, the thrust of James’s allegations supporting his malicious

prosecution claim is that Officer “Garlock knowingly provided false information for the Affidavit

of Probable Cause[,]” which was “based on falsehoods and inaccuracies.” (ECF No. 1 {| 48, 62).

“When a plaintiff in a § 1983 [malicious prosecution] action alleges misrepresentation and

omissions in the affidavit of probable cause, the plaintiff must satisfy the two part test developed

in Franks v Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).” Skunda v. Pa. State Police,

47 F. App’x 69, 70-71 (3d Cir. 2002).

22 At this time, the Court clarifies its employment of this standard in two regards. First, the Court recognizes

that Franks dealt with a plaintiff challenging the sufficiency of an affidavit of probable cause in obtaining a

search warrant. Franks, 438 U.S. at 155. In this case, there was no search warrant. Instead, the Affidavit of

Probable Cause sought a warrant for James’s arrest. (ECF No. 15-1). However, the Third Circuit, in both

Skunda and Bircher, applied the Franks standard to the plaintiff's claim that the defendants falsified

information in an affidavit for an arrest warrant, not a search warrant. Skunda, 47 F. App’x at 70-71, Bircher,

610 F. App’x at 197. Thus, the fact that James challenges the accuracy of an affidavit for his arrest warrant,

rather than a search warrant, provides no basis to circumvent Franks’s application here.

Second, in both Skunda and Bircher, the defendant was the Officer who submitted the affidavit of probable

cause. As previously explained, much of Officer Garlock’s argument regarding James’s malicious

prosecution claim against him revolves around the fact that Officer Garlock did not submit or sign the

Affidavit of Probable Cause. However, the Court interprets—and, indeed, Officer Garlock presents —this

argument as going towards the “initiation” prong of James’s malicious prosecution claim, not the probable

cause inquiry. (See ECF No. 15 at 12-13). In any event, however, the Court notes that the Franks analysis it

employs in text comports with the analyses undertaken by the courts in Pierce and Lennon —both cases in

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Under step one, James must show that Officer Garlock “knowingly and deliberately, or

with a reckless disregard for the truth, made false statements or omissions that create a falsehood

in applying for a warrant.” Franks, 438 U.S. at 399. And under step two, James must show “that

such statements or omissions are material, or necessary, to the finding of probable cause.” Id.; see

also Andrews v. Scuilli, 853 F.3d 690, 697-99 (3d Cir. 2017); Bircher v. Pierce, 610 F. App’x 194, 197

(3d Cir. 2015) (citing Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); Franks, 438 U.S. at 155—

56) (applying the same analysis).

i. Consideration of Exhibits During the Probable Cause Inquiry

At this point, the Court pauses to explain how two items attached to the parties’ pleadings

as exhibits—the Affidavit of Probable Cause and the surveillance video of the subject incident—

factor into the following analysis. The Court previously outlined the rules authorizing the Court

to consider both items at the motion to dismiss stage. See supra Sections IV.B, IV.D. The purpose

these rules serve, the Third Circuit has explained, is to “avoid the situation where a plaintiff with

a legally deficient claim that is based on a particular document can avoid dismissal of that claim

which the defendant did not submit an affidavit of probable cause, but rather provided false information

to the affiant or prosecuting authorities. Pierce, 359 F.3d at 1291; Lennon, 2014 WL 1395038 at *15 (particular

defendants did not sign or submit the affidavit of probable cause, but “provided false statements” in it).

The Pierce court cited to Franks in explaining that “the existence of probable cause” is “determined by

setting aside the false information and reviewing the remaining contents of the affidavit.” Pierce, 359 F.3d

at 1293. And the court in Lennon, in analyzing the plaintiffs malicious prosecution claim, rested on its

“discuss[ion] above” to conclude that the plaintiff introduced sufficient evidence to cast doubt on “whether

the account of the incident in the affidavit of probable cause” was “truthful.” Lennon, 2014 WL 1395038 at

*15-16. The “discuss[ion] above” to which the court referred applied Franks to determine whether there

was a lack of probable cause. Id. at *8-12. Therefore, even where, as here, the defendant is not the signatory

of any operative paperwork, but nonetheless is alleged to have provided false information in an affidavit

of probable cause, the Court remains convinced that the Franks standard is the appropriate mechanism

through which to analyze whether probable cause supported the initiation of criminal proceedings against

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by failing to attach the relied upon document.” Lum, 361 F.3d at 221 n.3 (citing Pension Ben. Guar.

Corp., 998 F.2d at 1196).

Put differently, although the Court is generally required to accept the Complaint’s factual

allegations as true, this requirement does not apply where those allegations are contradicted by

the exhibits relied upon by the parties. See Gupta v. Wipro Ltd., 749 F. App’x 94, 97 (3d Cir. 2018)

(citing Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004)). In this context, the Court understands

this principle to mean that James’s factual allegations regarding the alleged falsities in the

Affidavit of Probable Cause, if clearly contradicted by the Affidavit itself or the surveillance

video, cannot form the basis of James’s claim.

This approach is particularly relevant to James’s assertion that “Defendant Officers

provided all of the information for the Affidavit of Probable Cause[,]” especially considering that

only Officer Garlock has moved to dismiss. (ECF No. 1 { 56). In analyzing the authentic copy of

the Affidavit of Probable Cause attached to Officer Garlock’s Motion to Dismiss, the Court notes

that the Affidavit appears to speak in three “voices.” In some areas, the Affidavit reads as though

it is merely recounting facts, ascribing no source to that information. (See, e.g., ECF 15-1) (“Ofc.

_GARLOCK then attempted to handcuff the defendant as he was lying on his side.”). Elsewhere,

information provided in the Affidavit is preceded by either “Sgt. BRANT related that...” or “Ofc.

GARLOCK related that... .” (See id.).

One could reasonably interpret this language to mean that the only information Officer

Garlock “provided” to the affiant are those with this particular precursor. Indeed, Officer Garlock

makes this argument in his Motion to Dismiss. (ECF No. 15 at 10). On the other hand, it is

plausible that, as James appears to allege, Officer Garlock provided information to the affiant that

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served as the basis for a greater portion of the Affidavit than those specific instances that indicate

Officer Garlock “related” the subsequent facts. After all, Officer Garlock was present at the scene

of the events that form the basis of the Affidavit, and there is no indication in the record before

the Court that the affiant, Trooper Churney, was even remotely involved in the subject incident.

However, neither conclusion just offered is made abundantly clear on the Affidavit'’s face.

In other words, reaching either conclusion would require an inference on the Court's part. At the

motion to dismiss stage, the Court is required to “draw[] every reasonable inference in favor of

the nonmoving party[.]” Owner Operator Indep. Drivers Ass’n v. Pa. Tpk. Comm’n, 934 F.3d 283, 290

n.7 (3d Cir. 2019) (citing Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 & n.2 (3d Cir. 2016)).

Accordingly, due to this case’s procedural posture, the Court infers that Officer Garlock’s

contributions to the facts outlined in the Affidavit span further than those portions of the

Affidavit preceded by “Ofc. GARLOCK related... .”

But this inference only goes so far. While an inference is required to determine whether

the portions of the Affidavit that do not begin with “Ofc. GARLOCK related” were informed by

Officer Garlock, the same cannot be said for the portions that begin with “Sgt. BRANT related . .

. .” Instead, it is clear from the face of the Affidavit that those statements are attributable to

Sergeant Brant, not Officer Garlock. And this reading of the Affidavit accords with James’s

allegation that “Defendant Officers provided all of the information for the Affidavit of Probable

Cause[.]” (ECF No. 1 { 56) (emphasis added). James does not allege that Officer Garlock alone

13 The Court notes that the first paragraph of the Affidavit states that the “Redstone Township Police

Department was called to assist until we could get on scene.” (ECF No. 15-1) (emphasis added). However,

the Court stresses that there is no indication in the rest of the Affidavit, or in the party’s pleadings, that the

affiant—Trooper Churney —was present at the Dairy Queen on January 14, 2018, when any of the relevant

events occurred.

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provided all the information, but that he and Sergeant Brant did. Accordingly, when analyzing

the Affidavit at this stage of the proceeding, the Court will infer that the information contained

therein that is not specifically attributed to Sergeant Brant was provided to the affiant by Officer

Garlock.

Moreover, just as the Affidavit of Probable Cause acts as a check on whether the Court

takes James’s factual allegations as true, so too does the surveillance video of the incident. As the

Court will explain further below, some of James’s factual allegations cannot be conclusively

proven or disproven by viewing the video. In such a circumstance, the Court remains obligated

to take James’s factual allegations as true. However, where the surveillance video clearly

contradicts a factual allegation contained in James’s Complaint, the Court is not required to treat

such an allegation as presumptively true.

With this in mind, the Court turns to the portions of the Affidavit of Probable Cause that

James alleges are false.

ii. Allegedly False Statements

In his Complaint, James makes no allegation that Officer Garlock recklessly omitted

material information when relaying facts to the affiant of the Affidavit of Probable Cause. Instead,

James only alleges that the information Officer Garlock to the affiant was false. (ECF No. 1 □□ 48,

42),.14

14 The Court pauses to clarify its reading and analysis of James’s Complaint. As previously mentioned,

James attached the state court opinion dismissing his charges to his Complaint as an exhibit. (See ECF No.

1 { 46) (“Judge Wagner’s Opinion is attached as Exhibit A.”). Pursuant to Federal Rule of Civil Procedure

10(c), because the opinion “is an exhibit to a pleading][,]” it is “part of the pleading for all purposes.” Fed.

R. Civ. P. 10(c). And the Court is further entitled to consider the attached opinion at the motion to dismiss

stage for the reasons outlined above. See supra Section IV.A.

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In assessing what James alleges Officer Garlock to have misrepresented or falsified in the Affidavit of

Probable Cause, the Court therefore looks to both the factual allegations contained in the body of James’s

Complaint, as well as the factual allegations in the state court opinion James incorporates by reference.

After all, the proper inquiry at the 12(b)(6) stage is “whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.” Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)

(emphasis added). It is certainly reasonable to read James’s Complaint as attaching the state court opinion

to reflect what he alleges are the factual inaccuracies contained in the Affidavit of Probable Cause. To be

sure, in James’s reply to Officer Garlock’s Motion to Dismiss, he argues that “these findings” —referencing

those of the state court opinion— “directly contradict” statements made in the Affidavit of Probable Cause.

(ECF No. 22 at 4). A reasonable reading of James’s Complaint therefore shows that he adopts the factual

findings of the state court opinion as his own factual allegations as to what transpired during the subject

incident. Put differently, one can reasonably read James’s Complaint as alleging that the discrepancies

between the facts in the Affidavit of Probable Cause and those contained in the state court opinion form

the basis of his allegation that Officer Garlock “knowingly provided false information for the Affidavit of

Probable Cause.” (ECF No. 1 { 48).

The Court is aware that, at first blush, this approach appears to run afoul of the Third Circuit’s instruction

that “[w]hile a prior judicial opinion constitutes a public record of which a court may take judicial notice,

it may do so on a motion to dismiss only to establish the existence of the opinion, not for the truth of the

facts asserted in the opinion.” Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004) (citing Southern Cross

Overseas Agencies, Inc. v. Wah Kwong Shipping Grp., Ltd., 181 F.3d 410, 427 (3d Cir. 1999)). But, for three

reasons, the Court is convinced that considering the state court opinion in the way just described does not

defy this precedent. First, Lum used this language to explain why the district court below “improperly took

judicial notice of [the plaintiffs] deposition testimony in a prior proceeding that he” understood particular

term of an agreement. Id. At the district court, there was no indication that the plaintiff attached the

deposition to his complaint, and the deposition was not integral to the plaintiffs complaint or relied upon

therein. Lum v. Bank of Am., No. 00-223, 2001 WL 34059378, at *14-15 (D. N.J. Nov. 29, 2001). Instead, the

district court—seemingly on its own initiative—took judicial notice of the plaintiff's deposition testimony

from ten years earlier to refute a factual allegation in the plaintiff's complaint. Id. This is a far cry from the

approach the Court takes in this case. Here, the Court is only incorporating the factual averments of the

state court opinion—which James attached as an exhibit to his Complaint — to bolster the factual allegations

in James’s Complaint, not refute them. And, in doing so, the Court is not introducing a document, like the

deposition in Lum, that neither party intended or even (seemingly) contemplated would be considered by

the Court at the 12(b)(6) stage. Second, as opposed to the deposition in Lum, the state court opinion is not

a “public record” of which the Court is taking judicial notice. Instead, it is both an “exhibit[] attached to the

complaint” and a document that is “integral to or explicitly relied upon in the complaint.” In re Burlington,

114 F.3d at 1426. The Third Circuit has been abundantly clear that a court is entitled to consider such

documents at the motion to dismiss stage. See id.; Lum, 361 F.3d at 221 n.3. And no precedent suggests that

the restrictions of judicially noticing a document espoused in Lum similarly apply to those documents that

are attached to the complaint or integral to the plaintiff's claims. Third, and finally, Officer Garlock makes

no argument, nor points to any principal of law, suggesting that it would be improper for the Court to

consider the state court opinion in the way previously described. Rather, Officer Garlock appears to

acquiesce to the Court’s consideration of the state court opinion by launching arguments tethered to the

opinion itself. (See, e.g., ECF No. 15 at 11) (“Judge Wagner did not hold or opine that the above-referenced

information which Officer Garlock allegedly provided to Trooper Churney was false or erroneous.”).

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In reading James’s Complaint, he alleges several specific falsehoods are contained in the

Affidavit of Probable Cause. The Court addresses each in turn to determine whether Officer

Garlock would have had “obvious reasons to doubt the truth of what he” was asserting at the

time he relayed the information to the affiant. Wilson, 212 F.3d at 783. Additionally, the Court

considers whether any falsehoods allegedly contributable to Officer Garlock are refuted by the

Affidavit or the surveillance video.

First, James alleges that he was not “raising his walking cane, shaking it at the officers or

holding it in a threatening manner as was claimed in the Affidavit of Probable Cause[.]” (ECF

No. 1 137). On this point, the Affidavit reads: “The defendant had his wooden cane up in the air”

while in front of the doorway. (ECF No. 15-1). A review of the surveillance video proves this true,

and therefore undercuts James’s allegation to the contrary. James can clearly be seen approaching

the door after the Officers arrived while holding his cane well off the ground. (See ECF No. 25-1

Moreover, in undertaking this analysis, the Court stresses that it only considers those portions of the state

court opinion that James could reasonably be understood as adopting as a factual allegation. The Court

does not consider any quasi-legal conclusions contained in the state court opinion, such as the finding that

encounter between the officers and the Defendant was escalated by the police without cause.” (ECF

No. 1-1 at 5). Instead, the Court only considers purely factual assertions, such as “the Defendant back[ed]

up to the chair that he had been sitting in previously.” (Id.). Further, the Court is also mindful of the fact

that, in undertaking its probable cause inquiry, it may “look only to the information available to [Officer

Garlock] at the time of the swearing of the affidavit of probable cause.” Dempsey v. Bucknell Univ., 834 F.3d

457, 471 (3d Cir. 2016). To that end, the Court will not consider portions of the state court opinion that bear

a resemblance to the following passage: “No evidence was presented that the Officers informed the

Defendant that he was under arrest[.]” (Id.). The fact that a particular piece of evidence was not disclosed

by Officer Brant at the preliminary hearing that occurred well after the subject incident bears no relation to

what Officer Garlock knew at the time he relayed information to the affiant. The only information Officer

Garlock could allegedly falsify in the Affidavit of Probable Cause is what transpired in the Dairy Queen on

January 14, 2018. For this reason, the Court only considers those portions of the state court opinion that

contain facts— which James’s incorporates and alleges by reference—that relate to what occurred during

the subject incident.

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at 5:14:07-5:14:10). Accordingly, James’s allegation that this portion of the Affidavit is false is

entitled to no deference.

Second, James alleges that he “was sitting down” when Sergeant Brant entered the Dairy

Queen and tased him. (ECF No. 1 J 38).!° The Affidavit, for its part, reads as though James was

standing up when the Officers entered the Diary Queen and Sergeant Brant deployed his taser.

(See ECF No. 15-1) (stating that James “stood up from his seated position and began yelling” and

that after Sergeant Brant tased James he “staggered and fell down on his side”). Again, the

surveillance video proves this to be true. The video clearly depicts that James was standing

upright when the Officers entered and when Sergeant Brant tased him. (See ECF No. 25-1 at

5:14:47). Accordingly, the Court cannot take James’s allegation that the Affidavit falsely indicates

that he was standing as true.

Third, James alleges that he did not “go[] for” or grab at “Defendant Garlock’s gun belt.”

(ECF No. 1 ¥ 26; ECF No. 22 at 3). And, relatedly, James alleges that the Affidavit falsely states

that Officer Garlock struck James with his baton because James kept going for Officer Garlock’s

18 What James’s allegation on this point may ultimately be getting at is the portion of the Affidavit that

reads: “Sgt. BRANT related that the defendant then put his cane to his side, so he thought that he was going

to calm down. Sgt. BRANT related that the defendant then began waiving his cane around again.” (ECF No.

15-1) (emphasis added). As the Court explained above, the Affidavit clearly evidences that this statement

is attributable to Sergeant Brant, not Officer Garlock. Accordingly, because this alleged falsehood is not

attributable to Officer Garlock—-and he is the only Defendant moving to dismiss James’s malicious

prosecution claim—this portion of the Affidavit bears no relation to the Court's analysis.

16 The Court notes that elsewhere in his Complaint James alleges he “was attempting to sit down” when

Sergeant Brant tased him. (ECF No. 1 { 44). But the Affidavit makes no assertion that James was moving

towards Defendant Officers or any similar factual allegation that contradicts James’s contention that he was

attempting to sit down. Again, James does not allege in his Complaint that Officer Garlock omitted material

information from the Affidavit; he only alleges that Officer Garlock “knowingly provided false

information|[.]” (Id. | 48). Because only James’s allegation that he was sitting when Sergeant Brant entered

the Dairy Queen is contradicted by the A ffidavit’s indication that James was standing at that time, the Court

solely addresses that allegation.

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gun belt. (Id.). The Affidavit states that James “was grabbing Ofc. GARLOCK’s gunbelt” and “Ofc.

GARLOCK further related that when the defendant kept going for his belt, he grabbed his baton

and struck the defendant a few times with it on his side.” (ECF No. 15-1). A review of the video,

however, refutes James’s allegation that these portions of the Affidavit are false. During the initial

struggle, James can clearly be seen grabbing at Officer Garlock’s belt. (ECF No. 25-1 at 5:15:02-

5:15:04). And later, the video shows James grabbing at Officer Garlock’s belt again. (Id. at 5:17:12-

5:17:14; 5:17:15-5:17:16). The video then portrays Officer Garlock pushing James’s hand away

from his waist before striking him with his baton. (Id. at 5:17:18-5:17:22). Accordingly, James’s

allegation that he was not grabbing at Officer Garlock’s belt cannot be taken as true in light of the

contrary video evidence.

Fourth, James alleges that he did not strike Officer Garlock with his walking cane. (ECF

No. 1-1 at 5; ECF No. 1 □□ 24; ECF No. 22 at 3). The Affidavit states that James “took his cane and

swung it at Ofc. GARLOCK, striking the area of his right ribs” before Officer Garlock deployed

his pepper spray. (ECF No. 15-1). Again, the video proves this allegation true. When James

initially falls to the ground, his walking cane remains in his right hand. (See ECF No. 25-1 at

5:14:47-5:14:51). The video shows that while James is on the ground, when Officer Garlock

approaches, James swings his cane in his right hand at Officer Garlock, striking him in the

abdomen area. (Id. at 5:14:51-5:14:53). Therefore, the surveillance video refutes James’s allegation

that he did not strike Officer Garlock with his walking cane.

Fifth, and finally, James alleges that he did not kick Officer Garlock as the Affidavit claims.

(ECF No. 1-1 at 5; ECF No. 1 { 23). The Affidavit states that James “began resisting arrest and

started grabbing at Ofc. Garlock and kicking him.” (ECF No. 15-1). Here, the video does not

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provide a clear answer. James can be seen struggling with Officer Garlock on the ground, and his

legs are certainly moving during this struggle. (See ECF No. 22-1 at 5:15:05-5:15:19). But nowhere

in the video can James clearly be seen kicking Officer Garlock. Therefore, because the video does

not refute James’s allegation, the Court will take as true James’s assertion that he did not kick

Officer Garlock.

In sum, the only falsehood remaining that is not contradicted by the surveillance video is

James’s assertion that he did not kick Officer Garlock. Before proceeding to Franks’s second step,

the Court must determine whether Officer Garlock relayed this falsehood to the affiant

“knowingly and deliberately, or with a reckless disregard for the truth[.]” Franks, 438 U.S. at 399.

As the Third Circuit has explained, “assertions are made with reckless disregard for the

truth when an officer has obvious reasons to doubt the truth of what he or she is asserting.” Wilson

v. Russo, 212 F.3d 781, 783 (3d Cir. 2000). And, in analyzing James’s assertion that Officer Garlock

provided false information to the affiant, the Court “look[s] only to the information available to

[Officer Garlock] at the time of the swearing of the affidavit of probable cause.” Dempsey v.

Bucknell Univ., 834 F.3d 457, 471 (3d Cir. 2016).

Here, the Court must take as true James’s allegations that he did not kick Officer Garlock.

It follows, then, that when Officer Garlock allegedly told the affiant that James kicked him, he

had “obvious reasons to doubt the truth of what he” was asserting. Wilson, 212 F.3d at 783. And

because any kick inflicted on Officer Garlock would have occurred during the subject incident,

he would have known the falsity of his statement at the time he relayed it to the affiant later that

same day. (ECF No. 15-1). Therefore, James has sufficiently pled that Officer Garlock “knowingly

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and deliberately, or with a reckless disregard for the truth, made [a] false statement[]” to the

affiant, and Franks’s first step is satisfied.

iii. Reconstructed Affidavit

Because the Court has determined that the Affidavit of Probable Cause contains a

“reckless misrepresentation[,]” the Court must now “excise the offending inaccurac[y]’ . . . from

the affidavit and assess whether the reconstructed affidavit would establish probable cause.”

Dempsey, 834 F.3d at 470 (citing Wilson, 212 F.3d at 789). The Third Circuit has “clarif[ied] that

when a court determines that information was asserted .. . in an affidavit of probable cause with

at least reckless disregard for the truth, it must perform a word-by-word reconstruction of the

affidavit.” Id. Therefore, here, the Court removes the falsehood James adequately alleges the

Affidavit contains—that he kicked Officer Garlock—and reconstructs the Affidavit accordingly.

The Affidavit reconstructed to omit these alleged falsehoods would read: