Donahue v. Gavin

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

2-7-2002

Donahue v. Gavin

Precedential or Non-Precedential:

Docket 0-2082

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Filed February 7, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-2082

CHRISTOPHER F. DONAHUE,

Appellant

v.

JAMES GAVIN; GEORGE YATRON; MICHAEL MARINO;

JEFFREY HAWBECKER; PAUL EVANKO; RICHARD

PATTON; JAMES GIRARD; GREGORY PEASE; JOHN

SHANAHAN; ROBERT SCHWARZ; BERKS COUNTY; FIRST

SAVINGS BANK OF PERKASIE; BELL ATLANTIC, INC.

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Civ. No. 98-cv-01602)

District Judge: Hon. Thomas N. O'Neill, Jr.

Argued: January 8, 2001

Before: MANSMANN, McKEE and AMBRO, Circuit Jud ges

(Opinion filed: February 7, 2002)

JORDAN B. YEAGER, ESQ. (Argued)

Boockvar & Yeager

714 Main Street

Bethlehem, PA 18018

Attorney for Appellant

D. MICHAEL FISHER, ESQ.

Attorney General of the

Commonwealth of Pennsylvania

JOHN O. J. SHELLENBERGER,

ESQ. (Argued)

Chief Deputy Attorney General

CALVIN R. KOONS, ESQ.

Senior Deputy Attorney General

JOHN G. KNORR, III, ESQ.

Chief Deputy Attorney General

Chief, Appellate Division

Office of the Attorney General

21 S. 12th Street, 3rd Floor

Philadelphia, PA 19107

Attorneys for Appellees,

James Girard and Gregory Pease

BARRY W. SAWTELLE, ESQ.

(Argued)

Kozloff Stoudt, P. C.

The Berkshire, 6th Floor

501 Washington Street

P. O. Box 877

Reading, PA 19603

Attorneys for Appellees,

James Gavin, George Yatron and

Berks County

OPINION OF THE COURT

McKEE, Circuit Judge.

Christopher F. Donahue appeals the district court's grant

of summary judgment in favor of the defendants and

against Donahue in his civil rights action under 42 U.S.C.

S 1983. The district court based its ruling on its

determination that each of the defendants had either

qualified or absolute immunity. The suit arises from the

investigation and prosecution of a marijuana distribution

conspiracy involving Donahue. He alleges a civil rights

claim based upon defendants' purported malicious

2

prosecution of him in violation of the Fourth Amendment.1

For the reasons that follow, we will affirm.2

I. FACTS

In late 1990, State Troopers Pease and Girard were the

lead officers in an investigation of a marijuana distribution

ring involving a Berks County resident named "Erwin

Bieber." In June of that year, Pease learned that a

marijuana dealer in Albuquerque, New Mexico was

regularly placing telephone calls from Albuquerque to

southeastern Pennsylvania. The telephone numbers he was

calling were listed to a telephone in Montgomery County

and one in Berks County. The Berks County number was

assigned to a business called "Guitars East." Erwin Bieber

received mail at the address listed for that business.

Pease responded by acquiring information that included

Bieber's telephone toll records. Meanwhile, the Albuquerque

Police Department placed a pen register on the New Mexico

dealer's telephone line.3 A pen register was also installed on

the Montgomery County telephone that the New Mexico

dealer was calling. Pease also learned that another

telephone was registered to Bieber at the address of

"Guitars East." The Montgomery County telephone involved

in calls to and from Albuquerque was also frequently being

used in making calls to and from Bieber's telephones.

_________________________________________________________________

1. For the sake of simplicity, we will refer to Donahue's claim as arising

only under the Fourth Amendment even though the Fourth Amendment

applies to the defendants via the Fourteenth Amendment. See Karnes v.

Skrutski, 62 F.3d 485, 488 n.1 (3rd Cir. 1995).

2. Although we are affirming, we do so on grounds that are different from

the analysis of the district court. See Brumfield v. Sanders, 232 F.3d

376, 399 n.2 (3rd Cir. 2000) ("An appellate court may affirm a result

reached by the District Court on different reasons .. . as long as the

record supports the judgment.").

3. "A pen register is a `device which records or decodes electronic or

other impulses which identify the numbers dialed or otherwise

transmitted on the telephone line to which such device is attached.' "

United States v. Riddick 156 F.3d 505, 510 n.5 (3rd Cir. 1998)(citations

omitted).

3

In late 1990, the Berks County District Attorney's Office

was asked to assist in the ongoing investigation the

Pennsylvania State Police were conducting into this

marijuana distribution ring, and Troopers Pease and Girard

informed the Berks County District Attorney's Office of the

information they had received from the Albuquerque Police

Department. Yatron was then the Berks County District

Attorney and James Gavin was an Assistant District

Attorney. On October 2, 1990, the State Police installed pen

registers on the two telephone lines registered to Bieber and

Guitars East pursuant to authorizations obtained from the

Berks County Court of Common Pleas.

Yatron and Gavin eventually filed two applications with

the Pennsylvania Superior Court seeking authorization to

conduct non-consensual electronic surveillance on Bieber's

two telephone lines.4 The application included an affidavit

signed by Troopers Pease and Girard. The Superior Court

granted the application and entered orders authorizing

interception of wire and oral communications on Bieber's

two telephone lines.

Trooper Pacelli installed and activated monitoring

equipment on Bieber's telephone lines pursuant to those

authorizations.5 Thereafter, from October 12, to November

17, 1990, Pease, Girard, and other Troopers working with

them listened to the telephone calls to and from Bieber's

two telephones.6 The monitored conversations included

discussions between Bieber and Donahue.

State Police had not been aware of Donahue before they

began monitoring Bieber's telephone conversations.

_________________________________________________________________

4. Unlike the pen registers that only recorded numbers dialed from

Bieber's two phones, the October 12 request sought authorization to

actually listen to (i.e., "seize") the contents of conversations on those

phones.

5. Trooper Pacelli held a class "B" certification under the applicable

Pennsylvania regulations, and that authorized him to perform such

installations. He was trained and experienced in the installation and use

of the monitoring equipment.

6. All of the troopers working with Pease and Girard had Class "A"

certifications under the applicable Pennsylvania regulations for

monitoring telephone calls.

4

However, once they began monitoring those calls, the State

Police heard and recorded a number of conversations

between Bieber and a "Christopher Donahue" residing at

1503 Callowhill Road in Perkasie, Pennsylvania.

We need not reiterate the rather involved chronology of

the investigation that followed, the content of the many

conversations that police recorded between Bieber and

Donahue, or the results of the surveillance the police

conducted while monitoring those calls. For our purposes,

it is sufficient to note that the numerous discussions

between Bieber and Donahue implicated both of them in a

large conspiracy to distribute substantial quantities of

marijuana in and around Berks County, Pennsylvania.

Eventually, police learned that Bieber was receiving

marijuana from sources in California and New Mexico and

distributing it to several people in Pennsylvania, including

Donahue.

On November 17, 1990, police followed Bieber to

Philadelphia International Airport where he met two other

men with suitcases. Police followed the trio from the airport

to 1503 Callowhill Road, Donahue's residence. Police

maintained surveillance as Bieber and his companions then

drove to a trailer home owned by Steve Hartman. Police

arrested the trio along with Hartman shortly after they left

Hartman's trailer.

Bieber began to talk to the police almost immediately. He

told Trooper Pease that he recently received 16 pounds of

marijuana from suppliers in California and that he had

delivered all 16 pounds to Donahue on November 7, 1990.

Police arrested Donahue after additional investigation, and

charged him with conspiracy to distribute marijuana,

conspiracy to participate in a corrupt organization, and

possession of marijuana with the intent to distribute. The

arrest warrant for Donahue was based upon a criminal

complaint that incorporated an affidavit of probable cause

that Pease and Girard signed.

Donahue filed a suppression motion prior to trial. He

argued that the electronic surveillance had been initiated

and maintained in a manner that violated the Pennsylvania

Wiretapping and Electronic Surveillance Control Act, 18 PA.

5

CONST. STAT. ANN. SS 5701-5748. After the suppression

motion was denied, Donahue proceeded to trial before a

jury.

Bieber was one of the prosecution witnesses at that trial.

He testified about his extensive drug dealings with

Donahue, including the aforementioned delivery of 16

pounds of marijuana on November 7, 1990. The jury

convicted Donahue of all the charges against him.

On direct appeal, the Pennsylvania Superior Court

reversed and ordered a new trial. That court held that,

given Bieber's testimony, the trial court committed

reversible error in not giving a "corrupt source" jury

instruction. Commonwealth v. Donahue, 630 A.2d 1238,

1246-47 (Pa. Super. 1993).7 However, the court rejected all

of Donahue's other arguments, including his argument that

his suppression motion should have been granted because

the electronic surveillance was contrary to law. Id. at 278-

281.8 Donahue's Petition for Allowance of Appeal to the

Pennsylvania Supreme Court was denied. Donahue v.

Commonwealth, 645 A.2d 1316 (Pa. 1994).

In January of 1997, the Berks County Court of Common

Pleas dismissed the corrupt organizations charges against

Donahue based upon intervening changes in the applicable

case law. At that point, Donahue had already spent more

than two and one-half years in prison on his sentence. The

Berks County District Attorney concluded that Donahue

would not receive any additional incarceration if he were to

be convicted in a retrial pursuant to the Superior Court's

_________________________________________________________________

7. The Superior Court held that "It is reversible error for a trial court

not

to give an accomplice charge if the evidence permits an inference that a

witness was an accomplice." 630 A.2d at 1247 (citation omitted).

8. In its opinion, the Superior Court noted that Donahue alleged in his

appeal that the violations of the Wiretap Act were constitutional

violations. However, the Superior Court found that"no constitutional

claims were preserved in post-verdict motions. We therefore deem any

constitutional claims in this regard to be waived for our review." 630

A.2d at 1248. Consequently, "grounds for suppression . . . are limited to

incriminating evidence resulting from a wiretap based on an interception

which was unlawful or otherwise conducted in contravention of judicial

order, or because the judicial order was insufficient on its face." Id.

6

remand. Accordingly, the Assistant District Attorney who

was then assigned to the case asked the trial court to enter

a nolle prosequi ("nol pros"), thereby terminating the

prosecution. The state court granted that request, and

those charges that remained after the remand were

dismissed.

II. DISTRICT COURT PROCEEDINGS

A. The 1995 Action.

In April of 1995, Donahue filed a two-count complaint in

the district court pursuant to 42 U.S.C. S 1983. He sought

monetary damages against Berks County as well as Yatron,

Gavin, Pease, and Girard, based upon the electronic

surveillance that had been conducted during the 1990-91

investigation and prosecution. In Count I of his complaint,

he alleged an illegal search and seizure in violation of the

Fourth, Fifth and Fourteenth Amendments. Count II alleged

violations of the Pennsylvania Wiretapping and Electronic

Surveillance Act, 18 PA. CONST. STAT. ANN. SS 5701-5748.

The defendants moved for summary judgment or

dismissal under Fed. R. Civ. P. Rule 12(b)(6), based upon

the applicable statutes of limitations. The district court

agreed, and entered orders dismissing the suit on January

4, 1996. Donahue did not appeal.

B. The 1998 Action.

In 1998, Donahue filed another civil action based upon

the aforementioned investigation and prosecution. The

complaint asserted: a S 1983 Fourth Amendment claim for

malicious prosecution against Berks County, Yatron, Gavin,

Pease and Girard (Count 1); a S 1983 Fourth Amendment

illegal search and seizure claim against D.A. Gavin,

Assistant D.A. Yatron, several Troopers involved in the

electronic monitoring, including Pease and Girard,

Pennsylvania Deputy Attorney General Richard Patton,

First Savings Bank of Perkasie, First Savings employee

Robert Schwartz and Berks County (Count II);9 a S 1983

_________________________________________________________________

9. Donahue sued the bank and its employee because the bank gave the

state police information about Donahue's bank accounts during the

investigation.

7

deprivation of property claim against Patton, Schwartz and

First Savings (Count III);10 claims for a violation of the Right

to Financial Privacy Act, 12 U. S. C. SS 3401-3422, against

First Savings and Loan and an employee of that bank 11

(Count IV); and various claims of violations of the

Pennsylvania Wiretapping and Electronic Control Act

against Gavin, Yatron, Pease, Patton, Trooper Jeffrey

Hawbecker and Montgomery County District Attorney

Michael Marino (Counts V-VIII).

The defendants filed various motions to dismiss under

Fed. R. Civ. P. 12(b)(6) and for judgment on the pleadings

under Fed. R. Civ. P. 12(c). By Memoranda and Orders

dated December 8, 1998 and March 12, 1999, the district

court dismissed all but one claim and most of the

defendants. See Donahue v. Gavin, 1999 WL 165700 (E. D.

Pa. 1999). The court held that all federal claims for

unlawful search and seizure against Berks County, Yatron,

Gavin, Pease and Girard were precluded both by the

judgment in the 1995 action and by the applicable statutes

of limitations. It also ruled that all claims under the

Pennsylvania Wiretapping and Electronic Surveillance

Control Act were barred by the statute of limitations.

As a result of that ruling, the only claim remaining was

Count I - the S 1983 claim for malicious prosecution under

the Fourth Amendment. However, the district court ruled

that that claim could only be asserted against Berks

County, Yatron, Gavin (the "County Defendants") and Pease

and Girard (the "State Defendants"), and the suit proceeded

to discovery. At the close of discovery, all of the remaining

defendants moved for summary judgment. The County

Defendants argued that they had either absolute or

qualified immunity. The State Defendants argued that

Donahue could not establish a Fourth Amendment violation

as a matter of law, and that even if he could, they were also

entitled to qualified immunity.

Donahue opposed the defendants' summary judgment

_________________________________________________________________

10. Donahue ultimately withdrew Count III.

11. Police obtained financial information about Donahue from the bank

during the course of the investigation.

8

motions and also filed a motion to suppress all of the

evidence derived from the electronic surveillance. He argued

that suppression was required because the wiretap

evidence was obtained in violation of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 18

U.S.C. SS 2510-2520. The district court granted each of the

defendants' motions for summary judgment. The court held

that the County Defendants had absolute immunity and

that the State Defendants had qualified immunity. Donahue

v. Gavin, 2000 WL 772819 (E. D. Pa. 2000).

This appeal followed. Donahue only appeals the grant of

summary judgment in favor of the State and County

Defendants on the S 1983 malicious prosecution claim.12 No

other issues are before us.

III. DISCUSSION

A.

The essence of Donahue's S 1983 malicious prosecution

suit against the State Defendants is that Pease and Girard

lacked probable cause to initiate the criminal proceedings

against him. Similarly, the essence of his S 1983 malicious

prosecution claim against the County Defendants is that

Yatron and Gavin did not have probable cause to prosecute

him. As noted, both the County Defendants and the State

Defendants asserted qualified immunity.13

Donahue attempts to establish this absence of probable

cause in a unique manner. He asks the court to suppress

the very evidence that would be relevant to determining if

the defendants had probable cause. He argues that the

suppression remedy contained in Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, 18 U.S.C.

_________________________________________________________________

12. Our review of the district court's grant of summary judgment is

plenary. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998).

13. The County Defendants also raised the defense of absolute immunity

to all acts undertaken in their decision to prosecute Donahue and to all

acts taken in preparation necessary to present their case. See 2000 WL

772819 at * 3.

9

SS 2510-2520,14 is not restricted to criminal prosecutions.

See Br. of Appellant, 17-20. Accordingly, Donahue claims

that the district court should have ruled on his suppression

motion before determining whether defendants were

protected by any form of immunity. He argues:

The motion to suppress should have been ruled upon

-- and granted -- first. The Court should not have

considered the wiretap evidence in ruling on the

summary judgment motions because Defendants

obtained and used this material illegally.

Id. at 16.

B.

Government officials exercising discretionary functions

have qualified immunity from suits seeking damages under

S 1983 "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v.

Fitzgerald, 457 U. S. 800, 818 (1982); see also Wilson v.

Russo, 212 F.3d 781, 786 (3d Cir. 2000) ("According to the

doctrine of qualified immunity, law enforcement officers

acting within their professional capacity are generally

immune from trial insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.")(citations

and internal quotations omitted).15

_________________________________________________________________

14. For example, Donahue argues: "[d]espite . . . assertions contained in

their applications and supporting affidavits that there was probable

cause to support the approval of the proposed wiretap order, Pease has

since admitted the lack of probable cause." Appellant's Br. at 4.

"Defendants falsely stated that Pease and Girard were qualified to

conduct the wiretaps, when they were not." Id. "Pease and Girard falsely

swore that all conventional investigative techniques (such as physical

surveillance) had been either exhausted or were impossible to use. . . .

In fact, they were had not even attempted to use any conventional

investigative techniques." Id. Donahue also claims that "Gavin played a

large role in supporting and directing the investigation, . . . ." Id. at

6.

15. In Imbler v. Pachtman, 424 U. S. 409, 430 (1976), the Supreme Court

extended absolute immunity to prosecutors when their"activities were

10

As noted above, the district court decided this case on

grounds of the defendants' immunity and concluded that it

did not need to address the applicability of Title III's

suppression remedy. Although we agree that the defendants

are entitled to judgment, we conclude that the district court

should not have reached the issue of the defendants'

qualified immunity without first addressing whether

Donahue even alleged a civil rights claim. The Supreme

Court has held that courts must "determine first whether

the plaintiff has alleged a deprivation of a constitutional

right at all" when a government official raises qualified

immunity as a defense to an action under S 1983. County

of Sacramento v. Lewis, 523 U. S. 833, 842 n.5 (1998).

_________________________________________________________________

intimately associated with the judicial phase of the criminal process."

More specifically, the Court held that "in initiating a prosecution and in

presenting the State's case, the prosecutor is immune from a civil suit

for damages under S 1983." Id. at 431. Therefore, a prosecutor is

absolutely immune when acting as an advocate in judicial proceedings.

Kalina v. Fletcher, 522 U. S. 118, 125 (1997). However, "a prosecutor

acting in an investigative or administrative capacity is protected only by

qualified immunity." Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir.

1992)(citations omitted). "In determining whether absolute immunity is

available for particular actions, the courts engage in a `functional

analysis' of each alleged activity." Id. (citations omitted). "The

decision to

initiate a prosecution is at the core of a prosecutor's judicial role."

Id.

Thus, "[a] prosecutor is absolutely immune when making this decision,

even where he acts without a good faith belief that any wrongdoing has

occurred." Id.

Donahue concedes that the County Defendants have absolute

immunity with regard to their actions during the judicial phase of his

prosecution. However, he attempts to circumvent that immunity by

alleging that they engaged in misconduct in the investigative phase.

More particularly, he points to their roles in gathering evidence, his

allegation that they fabricated evidence, his allegations of false

swearing

on an arrest warrant, his allegations of their covering up the illegal

wiretaps and his allegations that they made false statements in press

conferences they held. "Evidence obtained at or after the filing is likely

to be connected with an existing prosecution, and is absolutely

protected." Kulwicki, 969 F.2d at 1465. However, a prosecutor is not

entitled to absolute immunity when holding a press conference, or when

he allegedly fabricated evidence concerning an unsolved crime. Kalina,

522 U.S. at 126.

11

Accordingly, in Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir.

1997), we stated:

Where a defendant asserts a qualified immunity

defense in a motion for summary judgment, the

plaintiff bears the initial burden of showing that the

defendant's conduct violated some clearly established

statutory or constitutional right. Only if the plaintiff

carries this initial burden must the defendant then

demonstrate that no genuine issue of material fact

remains as to the objective reasonableness of the

defendant's belief in the lawfulness of his actions. This

procedure eliminates the needless expenditure of

money and time by one who justifiably asserts a

qualified immunity defense from suit.

Id. at 399 (citations omitted, and internal quotation marks

omitted)(emphasis added).

Determining whether plaintiff has alleged a violation of a

statutory or constitutional right is, therefore, the threshold

issue, and the Supreme Court has clearly instructed that

we must not "assum[e], without deciding, this preliminary

issue." Seigert v. Gilley, 500 U. S. 226, 232 (1991). Thus,

the district court should only have considered the

defendants' claim of immunity if Donahue first established

that their conduct violated a clearly established statutory or

constitutional right. Wilson v. Russo, 212 F.2d at 786

(courts "should . . . proceed to determine whether that right

was clearly established at the time of the alleged

violation."). Accordingly, "we begin [our analysis] with the

predicate question of whether [Donahue's] allegations are

sufficient to establish a violation of a constitutional right at

all." Sherwood,113 F.3d at 399 (citations and internal

quotations omitted).

C.

Prior to 1994, we allowed plaintiffs to bring malicious

prosecution claims under S 1983 by alleging the common

law elements of the tort. See Lee v. Mihalich , 847 F.2d 66,

69-70 (3d Cir. 1988). In order to prove malicious

prosecution under Pennsylvania law the plaintiff had to

prove: (1) the defendants initiated a criminal proceeding; (2)

12

the criminal proceeding ended in plaintiff 's favor; (3) the

proceeding was initiated without probable cause; and (4)

the defendants acted maliciously or for a purpose other

than bringing the plaintiff to justice. Hilfirty v. Shipman, 91

F.3d 573, 579 (3d Cir. 1996)(citing Haefner v. Burkey, 626

A.2d 519, 521 (Pa. 1993)). We had always assumed that by

proving a violation of the common law tort, the plaintiff

proved a violation of substantive due process that would

support a S 1983 claim for malicious prosecution suit. See

Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.

1998)(citing Lippay v. Christos, 996 F.2d 1490, 1502 (3d

Cir. 1993)).

However, the Supreme Court's decision in Albright v.

Oliver, 510 U. S. 266 (1994), significantly changed that

legal landscape. There, Albright was released on bail after

surrendering on an outstanding arrest warrant. The

criminal prosecution was ultimately dismissed because the

charges did not constitute an offense under state law.

Thereafter, Albright filed a S 1983 action against Oliver, the

police officer who had obtained the arrest warrant. Albright

claimed that Oliver had deprived him of his Fourteenth

Amendment substantive due process right to be "free from

criminal prosecution except upon probable cause." Id. at

269.

Chief Justice Rehnquist, writing for a plurality of four

justices, noted that Albright's claim was "a very limited one"

that did not raise procedural due process or Fourth

Amendment claims. Id. at 271. The plurality then

commented that "as a general matter, the Court has always

been reluctant to expand the concept of substantive due

process, preferring, instead, to limit substantive due

process protections to matters relating to marriage, family,

procreation, and the right to bodily integrity." Id. at 271-72.

Consequently, the plurality believed that Albright's claim

"to be free from prosecution except on the basis of probable

cause is markedly different" from the generally recognized

type of substantive due process protections" and held that

"[w]here a particular amendment provides an explicit

textual source of constitutional protection against a

particular sort of government behavior, that Amendment,

not the more generalized notion of substantive due process,

13

must be the guide for analyzing these claims." Id. at 272,

273.

Accordingly, the plurality held that "substantive due

process, with its scarce and open-ended guideposts,"

provided no relief. Id. at 275. However, while the plurality

"express[ed] no view" as to whether the Fourth Amendment

would provide relief to Albright, it intimated that Albright

could have obtained some relief under the Fourth

Amendment had he raised that issue. Id. at 274. Other

members of the Court agreed. Id. at 814-817 (Ginsburg, J.,

concurring in judgment); id. at 281 (Kennedy, J.,

concurring in judgment and joined by Thomas, J.); id. at

288-89 (Souter, J., concurring in judgment).

In Gallo v. City of Philadelphia, supra, we had our first

opportunity to consider Albright's impact upon our S 1983

malicious prosecution jurisprudence. There, a federal grand

jury indicted Gallo for arson. "He never was arrested,

detained, or handcuffed" following indictment, but certain

restrictions were imposed upon him in lieu of bail. 161 F.3d

at 219. Gallo subsequently discovered that the local fire

marshal had altered his original report so as to suggest

that a fire at Gallo's warehouse had been caused by arson

rather than a faulty electrical appliance. The fire marshal

had also changed his report to corroborate that accusation.

Gallo was acquitted after his defense counsel vigorously

cross-examined the fire marshal about the discrepancies in

his report. Following his acquittal, Gallo brought aS 1983

civil rights action against the fire marshal and others who

had been involved in his prosecution. He alleged that the

defendants "had caused the federal government to

prosecute him without probable cause." 161 F3d at 220.

The district court construed Gallo's S 1983 action as one

for malicious prosecution and held that, under Albright,

Gallo must show a Fourth Amendment violation in order to

prove the malicious prosecution constituted a

constitutional injury. However, inasmuch as Gallo was

never detained on the charges, he could not establish a

constitutional injury.

On Gallo's appeal, we noted that the Court in Albright

"left open the possibility that Albright could have succeeded

14

if he had relied on the Fourth Amendment." 161 F.3d at

222. We then wrote that

[b]y stating that `the accused is not entitled to judicial

oversight or review of the decision to prosecute,'

Albright implies that prosecution without probable

cause is not, in and of itself, a constitutional tort.

Instead, the constitutional violation is the deprivation of

liberty accompanying the prosecution. Thus, . . . a

plaintiff asserting a malicious prosecution claim must

show some deprivation of liberty consistent with the

concept of seizure.

Id. (citations and certain internal quotations

omitted)(emphasis added). Continuing our analysis, we

noted that because "under the common law, the tort of

malicious prosecution concerns perversion of legal

procedures," Gallo was required to "show that he suffered

a seizure as a consequence of a legal proceeding." Id. We

concluded that the post-indictment restrictions placed on

Gallo's liberty constituted a seizure. Consequently, we

reversed the district court and remanded for further

proceedings.16 Id. at 225.

Eight days after we decided Gallo, we once again had

occasion to view a S 1983 malicious prosecution suit

through the lens of Albright. In Torres v. McLaughlin, 163

F.3d 169 (3d Cir. 1998), we held, inter alia, that post-

conviction incarceration is not a seizure within the meaning

of the Fourth Amendment and, therefore, post-conviction

incarceration cannot constitute a Fourth Amendment

violation. Id. at 173-175.

Officer McLaughlin arrested Torres after the officer

claimed to have seen Torres selling cocaine. The next day,

the district attorney issued a criminal complaint charging

Torres with unlawful possession of cocaine with intent to

deliver. McLaughlin was the only prosecution witness at

trial. Torres testified on his own behalf, denied the charges

_________________________________________________________________

16. We remanded because the district court did not rule on whether

Gallo had satisfied the common law elements of a malicious prosecution

claim or whether certain of the defendants were entitled to qualified

immunity. 161 F.3d at 220.

15

and argued that McLaughlin should not be believed. The

jury believed McLaughlin and Torres was convicted, and

sentenced to three to six years in prison.

About seven and one-half months later, Torres moved for

a new trial. The state did not oppose the motion and told

the court that if a new trial was granted, the state would

ask the court to enter a nol pros and terminate the case.

The change of heart resulted from information that

suggested that McLaughlin lied in obtaining a search

warrant in an unrelated case. The state had since learned

that McLaughlin was a "rogue cop" and had moved to nol

pros 53 other cases in which McLaughlin had been an

essential witness. The court granted Torres' motion, and

the charges were dismissed pursuant to the nol pros that

the court entered pursuant to the prosecution's request.

Thereafter, Torres filed a S 1983 action in the district

court. His suit included a claim that the conduct of

McLaughlin and others constituted malicious prosecution

in violation of the Fourth Amendment. McLaughlin argued

that he was entitled to qualified immunity on theS 1983

claim and moved for summary judgment. The district court

denied the motion, and McLaughlin appealed.17 McLaughlin

argued to us that Torres' prosecution did not amount to a

constitutional violation, or, in the alternative, that he was

entitled to qualified immunity for any violation that may

have occurred.

The only issue before us was Torres' Fourth Amendment

claim, which we characterized "as a claim based on

McLaughlin's role in initiating the prosecution by conveying

false information to the prosecutor." Torres, at 172. We

stressed that "[t]he harm resulting from this action is

Torres's incarceration after the jury found him guilty." Id.

We then inquired into whether "Torres's post-conviction

incarceration was a Fourth Amendment seizure." Id. at

173-74 (emphasis added). After discussing Albright and

related cases, we concluded that:

_________________________________________________________________

17. "[A]n order rejecting the defense of qualified immunity at either the

dismissal stage or the summary judgment stage is a`final' judgment

subject to immediate appeal." Behrens v. Pelletier, 516 U. S. 299, 307

(1996).

16

the limits of Fourth Amendment protection relate to the

boundary between arrest and pretrial detention. At

most, there may be some circumstances during pre-

trial detention that implicate Fourth Amendment

rights; however, we refer to the Fourth Amendment as

applying to those actions which occur between arrest

and pre-trial detention. See United States v. Johnstone,

107 F.3d 200, 206-07 (3d Cir.1997) (commenting that

"[w]here the seizure ends and pre-trial detention begins

is a difficult question"). Therefore, consistent with our

language in Johnstone, we conclude that post-

conviction incarceration cannot be a seizure within the

meaning of the Fourth Amendment, and Torres's

incarceration did not violate his Fourth Amendment

rights.

Id. at 174 (emphasis added).

It was not appropriate to inquire into qualified or

absolute immunity because Torres had not alleged a Fourth

Amendment violation. Id. at 174-75. Accordingly, we

reversed and directed the district court to enter summary

judgment in favor of McLaughlin on Torres's Fourth

Amendment claim for malicious prosecution. Id. at 175.

That is precisely the situation posed by Donahue'sS 1983

claim for malicious prosecution.

Albright, Gallo and Torres are clearly implicated here

because Donahue's S 1983 malicious prosecution action is

grounded in the Fourth Amendment. His complaint alleges:

"[t]he defendants Berks County, Yatron, Gavin, Girard and

Pease violated Donahue's right to be free of malicious

prosecution by state actors under color of law pursuant to

the 4th Amendment." Complaint, P 165. However, Donahue

is attempting to recover for post-conviction losses. The

district court properly noted:

[p]laintiff alleges in his complaint that"defendants

Berks County, Yatron, Gavin, Girard, and Pease

violated his right to be free of malicious prosecution ...

pursuant to the Fourth Amendment." Compl. P 165. He

seeks damages for, among other items, the two years

and nine months he was incarcerated in state prison

after his conviction. Id. at P 174.

17

2000 WL 772819, *3 (emphasis added). However, damages

for post-conviction injuries are not within the purview of

the Fourth Amendment.

Donahue's brief cites neither Torres nor Gallo, and his

only mention of Albright offers little support for his position

in view of the holdings in those cases. He refers to Albright

only by way of arguing its "doctrinal shift . . . in the law of

malicious prosecution." He argues "[b]efore Albright,

malicious prosecution claims were regularly understood to

be grounded in the Fourteenth Amendment Due Process

Clause . . . Since Albright . . . malicious prosecution claims

have been most often understood as Fourth Amendment

violations." Appellant's Br. at 23. However, he does not

begin to establish the required nexus between the alleged

Fourth Amendment violation and the damages he alleges.

After noting that Donahue is attempting to recover for

post-conviction injuries, the district court correctly stated:

"[Donahue] is unable to recover damages for post-conviction

incarceration based upon any alleged Fourth Amendment

violation." (citing Torres, 163 F.3d at 173-74). 2000 WL at

*3. We agree. In fact, we need only substitute the names of

the plaintiffs to show how neatly Donahue's claim is refuted

under the holding in Torres. In Torres, we stated: "[t]his

case, however, concerns the other end of the Fourth

Amendment continuum -- post-conviction incarceration.

Although Fourth Amendment seizure principles may in

some circumstances have implications in the period

between arrest and trial, we conclude that [Donahue's]

posttrial incarceration does not qualify as a Fourth

Amendment seizure." Torres, 163 F.3d at 174.

Donahue alleges he became

ill emotionally and physically by the defendants'

egregious misconduct -- he has lost his reputation, his

family, his home, his savings, and other property, the

respect and confidence of the community in which he

lives, his investment in his education, and his business

and career (he has lost future earnings in excess of

$2,000,000) and was forced to spend over 2 years and

9 months in prison only to find that he incurred debt

beyond his control due to the defendants' unlawful

conduct.

18

Complaint at P 174 (emphasis added).

Like Gallo, Donahue can establish a Fourth Amendment

seizure, and he may have incurred some "injury" as a result

of that seizure. However, even at this late date, he makes

no attempt to distinguish between damages that may have

been caused by that "seizure", and damages that are the

result of his trial, conviction and sentence. Consequently,

he has not even attempted to establish the Fourth

Amendment violation that is the condition precedent to

establishing his malicious prosecution claim.

We realize, of course, that modern rules of pleading do

not require a great deal of specificity. See Frazier v.

Southeastern Pennsylvania Transportation Authority, 785

F.2d 65, 68 (3rd Cir. 1986) (discussing "the specificity

requirement in civil rights cases" for purposes of Fed. R.

Civ. P. 8.). However, the defect in Donahue's complaint is

not that he has pled a cause of action with inadequate

specificity. Rather, it is that the specificity he has pled

reveals that he is trying to recover for injuries that are

unrelated to the constitutional guarantee his claim is

predicated upon. See Torres, 163 F.3d at 174.

Accordingly, we are constrained to hold that Donahue

has not met his burden of demonstrating that the

defendants' "conduct violated some clearly established

statutory or constitutional right." Sherwood , at 399. The

district court noted this defect and stated: "[s]ince I need

not decide the issue, . . .[ ] I express no view as to whether

plaintiff 's post-conviction incarceration violates some other

constitutional provision, such as the procedural component

of the Due Process clause[ ]." 2000 WL 772819. However,

Donahue's S 1983 action is limited to a Fourth Amendment

violation based upon malicious prosecution. We need go no

further.18

_________________________________________________________________

18. In Torres, we read Albright as "standing for the broader proposition

that a section 1983 claim may be based on a constitutional provision

other than the Fourth Amendment," including "procedural due process

or other explicit text of the Constitution." 163 F.3d 172, 173. However,

because Donahue's S 1983 malicious prosecution claim is based only on

the Fourth Amendment it ought not to be analyzed under procedural due

process notions, or on any other explicit constitutional guarantee.

19

However, even if we overlook this defect in Donahue's

cause of action and assume arguendo that some

unidentified (and unidentifiable) quantum of his damage

claim results solely from his seizure and pretrial detention,

we would still be constrained to find that he has not

established the tort of malicious prosecution. "One element

that must be alleged and proved in a malicious prosecution

action is the termination of the prior criminal proceeding in

favor of the accused." Heck v. Humphrey, 512 U.S. 477, 512

(1994).19

Section 659 of the RESTATEMENT (SECOND) OF TORTS (1976)

provides: "[c]riminal proceedings are terminated in favor of

the accused by

(a) a discharge by a magistrate at a preliminary

hearing, or

(b) the refusal of a grand jury to indict, or

(c) the formal abandonment of the proceedings by the

public prosecutor, or

(d) the quashing of an indictment or information, or

(e) an acquittal, or

(f) a final order in favor of the accused by a trial or

appellate court.

(emphasis added).20 "The usual method by which a public

prosecutor signifies the formal abandonment of criminal

proceedings is by the entry of a nolle prosequi. " Id. S 659,

com. c, illus. e. As noted above, the trial court entered a nol

pros here. However, while "a grant of nolle prosequi can be

sufficient to satisfy the favorable termination requirement

for malicious prosecution, not all cases where the

prosecutor abandons criminal charges are considered to

have terminated favorably." Hilfirty v. Shipman, 91 F.3d at

579-580. A nol pros signifies termination of charges in favor

of the accused "only when their final disposition is such as

to indicate the innocence of the accused" Id. S 660, cmt. a

_________________________________________________________________

19. Heck was decided just four months after Albright.

20. The Pennsylvania Supreme Court adopted S 659 in Haefner v.

Burkey, 626 A.2d 519, 521 (Pa. 1993).

20

(emphasis added) Accordingly, in Hector v. Watt , 235 F.3d

154, 156 (3d Cir. 2000), we stated that a S 1983 malicious

prosecution plaintiff "must be innocent of the crime

charged in the underlying prosecution."

As noted above, the charges against Donahue were

dismissed pursuant to a nol pros in part because of a

change in the law of corrupt organizations. The state had

the option of retrying Donahue on the remaining drug

distribution and conspiracy charges but elected not to. The

Berks County District Attorney filed a motion which stated:

In an opinion dated August 27, 1993, the Superior

Court reversed the judgment of sentence and

remanded for a new trial due to the failure of the .. .

trial judge . . . to give a "corrupt and polluted source"

charge to the jury. Upon remand for the new trial, all

seized drugs which relate to the corrupt organization

charges became irrelevant to the remaining charges of

possession of marijuana and possession of marijuana

with intent to deliver and criminal conspiracy because

of a subsequent decision of the Supreme Court of

Pennsylvania which required the trial court to dismiss

the corrupt organization charges. Certain intercepted

conversations then became irrelevant because they did

not pertain to the remaining charges. In addition, the

defendant has already served approximately 2 years, 7

months and 23 days, and if convicted, the defendant

would most likely not receive any additional jail time.

Therefore, in the interest of judicial economy and to

preserve scarce judicial resources, the Commonwealth of

Pennsylvania, in exercising its prosecutorial discretion,

requests entry of a Nolle Prosequi Order.

App. at 1308 (emphasis added).

It is clear from even a cursory reading of the request for

a nol pros that the resulting dismissal can hardly be

described as "indicat[ing] the innocence of the accused."

The prosecutor simply reasoned that Donahue was not

likely to receive any additional jail time if convicted in a

retrial, and concluded that further prosecution was

therefore not an appropriate use of limited resources. Far

from indicating Donahue's innocence, the nol pros merely

21

reflected an informed and reasoned exercise of

prosecutorial discretion as to how best to use those limited

resources. It does not suggest that Donahue was innocent

of the remaining criminal charges. Accordingly, there is no

way that Donahue can establish the malicious prosecution

that is necessary to establishing the constitutional violation

he has alleged as the basis of his S 1983 civil rights claim,

and the defendants are entitled to judgment for that

reason.

IV.

For all of the above reasons, we will affirm the judgment

of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

22