Johnson v. Knorr

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

2-14-2007

Johnson v. Knorr

Precedential or Non-Precedential: Precedential

Docket No. 05-5029

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 05-5029 and 05-5139

GAMAL JOHNSON,

Appellant in No. 05-5029

v.

PAROLE AGENT DAVID KNORR, INDIVIDUALLY & AS A

PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;

PAROLE AGENT WILLIAM JONES INDIVIDUALLY & AS A

PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;

COMMONWEALTH OF PENNA. DEPT. OF PROBATION

& PAROLE; POLICE OFFICER JOHN DOE

INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY

OF PHILADELPHIA; POLICE OFFICER RICHARD ROE

INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY

OF PHILADELPHIA; CITY OF PHILADELPHIA

GAMAL JOHNSON

v.

PAROLE AGENT DAVID M. KNORR, INDIVIDUALLY & AS A

PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;

PAROLE AGENT WILLIAM JONES, INDIVIDUALLY & AS A

PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;

COMMONWEALTH OF PENNSYLVANIA DEPT.

OF PROBATION AND PAROLE; POLICE OFFICER JOHN DOE,

INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY

OF PHILADELPHIA; POLICE OFFICER RICHARD ROE,

INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY

OF PHILADELPHIA; CITY OF PHILADELPHIA

David Knorr,

Appellant in No. 05-5139

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 01-03418)

Honorable Legrome D. Davis, District Judge

Argued November 9, 2006

BEFORE: SLOVITER, CHAGARES, and

GREENBERG, Circuit Judges

(Filed: February 14, 2007)

Martin Stanshine (argued)

Stanshine & Sigal

1528 Walnut Street

Suite 700

Philadelphia, PA 19102

Attorneys for Appellant in No. 05-5029

and Appellee in No. 05-5139

Thomas W. Corbett, Jr.

Attorney General

John G. Knorr, III (argued)

Chief Deputy Attorney General

Chief, Appellate Litigation Sector

Patrick J. McMonagle

Deputy Attorney General

Office of the Attorney General of

Pennsylvania

Department of Justice

Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellant in No. 05-5139

and Appellee in No. 05-5029

2

Mia Carpiniello

City of Philadelphia

Law Department

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Attorney for City of Philadelphia

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before the court on an appeal and cross-

appeal from a district court order entered on October 31, 2005, in

which the court granted summary judgment in favor of David Knorr,

an agent of the Pennsylvania Board of Probation and Parole (“the

Board”), in this action that a parolee subject to the Board’s

supervision, Gamal Johnson, brought against him. See Johnson v.

Knorr, Civ. No. 01-3418, 2005 WL 3021080 (E.D. Pa. Oct 31, 2005).

The incident giving rise to this case occurred on September 6, 2000,

when there was an altercation in the Board’s Philadelphia office

between Johnson and Knorr.1 At that time Board agents arrested

Johnson in the office following which they took him to a district

police station in Philadelphia for processing. On the basis of

information that Knorr supplied to him, the investigating detective,

Ronald Dove, with the approval of a Philadelphia assistant district

attorney, filed a complaint against Johnson charging him with simple

assault, aggravated assault, making terroristic threats, and reckless

endangerment, all arising out of the altercation at the Board’s office.

1

We are not certain whether the persons being served in the office

were on probation or parole or both, but the distinction is not material for

our purposes. Thus, we will refer to all the individuals as parolees. We

do note, however, that in Johnson v. Knorr, Civ. No. 01-3418, 2003 WL

22657125, at *1 (E.D. Pa. Oct. 28, 2003), the court indicated that the

sentence imposed on Johnson was a three-year term of probation. Yet

in Johnson v. Knorr, 2005 WL 3021080, at *1, the court referred to

Johnson as a “parolee.”

3

Subsequently, however, a state court dismissed the charges

following which Johnson initiated civil proceedings arising from the

incident in the Philadelphia County Court of Common Pleas under 42

U.S.C. § 1983 and under state law against Knorr and certain other

defendants who no longer are parties to this litigation. Initially

Johnson charged Knorr under section 1983 with violation of his rights

under the Fourth, Fifth and Fourteenth Amendments, and under state

law on theories of false arrest, false imprisonment, and assault and

battery, though not with malicious prosecution under either federal or

state law. The defendants removed the case to the district court which

ultimately granted Knorr summary judgment dismissing Johnson’s

claims, holding, inter alia, that the agents had probable cause to arrest

Johnson for making terroristic threats though it did not make a

probable cause finding on their other bases for Johnson’s arrest. On

Johnson’s appeal, though we upheld the dismissal of Johnson’s

original claims and expressly upheld the finding with respect to

probable cause for Johnson’s arrest for making terroristic threats, we

nevertheless reversed the order of the district court to the extent that

we remanded the case to the district court to allow Johnson to assert

claims for malicious prosecution. See Johnson v. Knorr, 130 Fed.

Appx. 552 (3d Cir. 2005).

On the remand Johnson amended his complaint to advance

claims for malicious prosecution under section 1983 predicated on the

Fourth Amendment and under state law. Subsequently, Knorr again

moved for summary judgment. In the disposition of that motion the

district court, after noting that on the first appeal we upheld its finding

that Knorr had probable cause to believe that Johnson had committed

the crime of making terrorists threats, dismissed Johnson’s malicious

prosecution claim under section 1983 as the finding of probable cause

barred the malicious prosecution claims for prosecution of all the

criminal charges. The court, however, after rejecting Knorr’s

sovereign immunity defense to the state law claims, remanded those

claims to the common pleas court as it declined to exercise

supplemental jurisdiction over them. Johnson then appealed and

Knorr cross-appealed as he challenged the district court’s action in

rejecting his sovereign immunity defense to the state law claims even

though it was remanding those claims to the state court. Thus,

Knorr’s appeal raises a procedural and jurisdictional rather than a

substantive issue.

The principal issue on these appeals is whether the finding that

the agents had probable cause to arrest Johnson on a charge of making

4

terroristic threats without findings that they also had probable cause

for his arrest on the other charges made against him defeats Johnson’s

cause of action for malicious prosecution on the remaining charges.

In this regard Johnson argues that the district court improperly applied

Wright v. City of Philadelphia, 409 F.3d 595 (3d Cir. 2005), to hold

that “once an officer has probable cause to arrest for one offense, all

possible malicious prosecution claims related to that arrest must also

fail.” Appellant-cross appellee’s br. at 28. Because we believe that

Johnson is correct, we will reverse the order of the district court on

Johnson’s appeal and will remand the case to the district court so that

he may proceed on his malicious prosecution claims in the district

court. Accordingly, we will direct the district court to vacate its order

remanding Johnson’s state law claims to the state court. Therefore,

for the reasons we will set forth below, Knorr’s cross-appeal is moot

and we will dismiss it.

II. FACT AND PROCEDURAL HISTORY

Inasmuch as the district court resolved this case by granting

Knorr’s motion for summary judgment, we consider the facts in the

light most favorable to Johnson, though we do not doubt that Knorr’s

version of the events is different. See Gallo v. City of Philadelphia,

161 F.3d 217, 219 (3d Cir. 1998).2 On September 6, 2000, Johnson,

when on parole supervision transferred from Virginia to Pennsylvania,

arrived at the waiting room at the office of the Board of Probation and

Parole in Philadelphia to meet with his parole officer. At that time

there were approximately 15 other parolees in the waiting room.

While Johnson was in the waiting room, he heard another parolee who

Johnson believed was having a seizure fall to the floor. At that point

Johnson and at least two other parolees went to where the parolee had

fallen to assist him. The fallen parolee was bleeding from his head

and foaming from his mouth, and his eyes were rolled back in his

2

As we have indicated, in its opinion granting Knorr summary

judgment the district court rejected Knorr’s sovereign immunity defense

to Johnson’s state law claims, and to that extent Knorr has cross-

appealed. This procedural status suggests that with respect to the cross-

appeal we should not consider the facts most favorably to Johnson. We,

however, need not linger on this point as we are disposing of the cross-

appeal on legal grounds and the facts material to our disposition are not

in dispute.

5

head.

Approximately ten to 20 seconds later, Johnson observed

Knorr and another agent standing in the doorway of the waiting room.

Johnson implored Knorr to render aid to the fallen parolee, but Knorr

did not do so. Instead, Knorr approached Johnson, and cursed at him

and pushed him. There was then a verbal altercation between Knorr

and Johnson, and, when Knorr motioned toward Johnson, Johnson

told Knorr “not to put his hands on [Johnson] again . . . [and that] he

better call some other people out of the back or something,” app. at

231, language that Knorr “[t]ook . . . as a direct threat.” Id. at 268.

Knorr then ordered Johnson to leave the waiting room and pushed

Johnson into the door, which swung open and struck another agent,

William Jones. When several agents attempted to apprehend Johnson

physically, he resisted. The agents eventually subdued Johnson, and

handcuffed and arrested him in the office. Johnson remained in a

detention room at the office for approximately one hour before the

agents transported him to the district police station. As we have

indicated, Detective Dove filed a complaint against Johnson charging

him with simple assault, aggravated assault, making terroristic threats,

and reckless endangerment, Jones being the victim of the alleged

assault. Johnson remained in a cell at the police station for

approximately two days until he was able to “make bail.”3 App. at 17,

392. Following a preliminary hearing on October 18, 2000, a state

court dismissed the charges against Johnson.

On May 29, 2001, Johnson filed a civil complaint in the Court

of Common Pleas of Philadelphia County against Knorr, Jones, the

Commonwealth of Pennsylvania, the City of Philadelphia

(collectively “defendants”), and two unnamed Philadelphia police

officers whom Johnson never has identified and who thus have not

been served with process or participated in this case.4 Johnson

alleged, inter alia, that he had been unlawfully searched and seized,

arrested, and imprisoned, and that the defendants violated his due

process rights as protected under the Fourth, Fifth, and Fourteenth

3

In his deposition, Johnson could not recall whether he was in the

cell for two or three days. In his civil complaint, Johnson claims that “he

was held in a cell for approximately two (2) days.” App. at 17. The bail

amount was set at $6,000.

4

In the circumstances, we are not treating the unidentified officers

as parties to this litigation.

6

Amendments of the United States Constitution and under state law.

Johnson asserted his claims against Knorr and Jones both individually

and in their official capacities. The named defendants removed the

case to the district court.

On the defendants’ motions the district court dismissed the

action against the Commonwealth of Pennsylvania, the City of

Philadelphia, and Knorr and Jones in their official capacities,

dispositions not at issue on this appeal. At the close of discovery,

Knorr and Jones moved for summary judgment in their individual

capacities. The court, however, denied their motion following which

they filed a joint motion seeking reconsideration of the order denying

the motions. The motion for reconsideration was partially successful

as the district court granted summary judgment to Jones, though it

continued to deny summary judgment to Knorr. In denying summary

judgment to Knorr, the court found that, although there was a

“sufficient basis for arresting [Johnson] for the offense of terroristic

threats . . . Johnson has presented a sufficient factual basis on the

limited question of whether Agent Knorr fabricated the assault upon

Parole Agent Jones.” Johnson v. Knorr, Civ. No. 01-CV-3418, 2003

WL 22657125, at *5-6 (E.D. Pa. Oct. 28, 2003). The court, however,

did not say that Knorr did not have probable cause to arrest Johnson

for the other offenses. Rather, there was a dispute of fact on that

point.

Yet Knorr’s attempts to terminate the action against him on

motion prior to trial were not ended for on March 16, 2004, the court

ordered Knorr to submit a supplemental summary judgment motion

“on the discrete issue of whether if probable cause exists as to one

offense, it exists for any offense that could be charged under the

circumstances.” App. at 507.1. After Knorr submitted that motion,

Johnson filed an answer to it seeking its denial, and, alternatively,

seeking to amend his complaint, arguing for the first time that he had

a cause of action under section 1983 for malicious prosecution on the

charges of aggravated assault and recklessly endangering another

person. On June 11, 2004, the district court granted Knorr’s

supplemental summary judgment motion with respect to Johnson’s

claim of false arrest pursuant to Barna v. City of Perth Amboy, 42

F.3d 809 (3d Cir. 1994), in which we held that to avoid liability a

defendant did not need probable cause for each and every charge but

rather needed probable cause “as to any offense that could be charged

under the circumstances.” App. at 579 (quoting Barna, 42 F.3d at

819). At the same time the district court denied Johnson’s motion to

7

amend his complaint to assert a claim of malicious prosecution.5

Johnson then filed a timely appeal.

On Johnson’s appeal challenging the dismissal of his false

arrest charges, we affirmed in part and reversed in part. Johnson, 130

Fed. Appx. at 553. First, we affirmed the district court’s order for

summary judgment with respect to Johnson’s claims for false arrest,

explaining that “Johnson’s statement to Knorr that he ‘better call

some other people out of the back or something’ provided probable

cause to believe that Johnson had uttered a terroristic threat.” Id. at

554. We, however, reversed the district court’s order denying

Johnson’s request to amend his complaint to assert constitutional

violations based on a malicious prosecution theory, as we concluded

that Knorr failed to specify how “allowing the amendment would be

prejudicial to him.” Id. at 555. Thus, we remanded the case so that

Johnson could file an amended complaint predicated on malicious

prosecution. At that point Johnson’s original charges no longer were

in the case as all the defendants had judgments in their favor on all the

initial federal and state charges against them. Nevertheless, Knorr

still was subject to the malicious prosecution claims that Johnson

originally had not advanced.

On the remand, on May 26, 2005, Johnson filed an amended

complaint against Knorr in which he reasserted the causes of action

from his original complaint but added a cause of action alleging

constitutional and state law malicious prosecution. App. at 600-05.

Johnson claimed that Knorr “provid[ed] knowingly false information

to the Philadelphia police, thus resulting in [Johnson’s] malicious

prosecution for several offenses, including aggravated assault[,]

terroristic threats, recklessly endangering another person[,] and simple

assault[,] despite the fact that [Knorr] knew or should have known

5

In his complaint, Johnson did not set forth a claim of malicious

prosecution. Nevertheless, according to Johnson, as he asserted in his

brief opposing Knorr’s motion for summary judgment, the complaint and

the subsequent motions “clearly advise[d] [Agent Knorr] of all of the

facts of a constitutional violation based on malicious prosecution.” App.

at 573. Johnson nonetheless requested to amend his complaint “in the

event that it is believed that placing the words ‘malicious prosecution’

in the complaint is necessary.” App. at 533.

8

that [Johnson] had committed none of these offenses.”6 App. at 604.

Knorr again moved for summary judgment following which on

October 31, 2005, the district court granted his motion with respect to

Johnson’s claim alleging unconstitutional malicious prosecution. In

doing so, the district court principally relied on Wright v. City of

Philadelphia, despite the court’s belief that “ideological and

philosophical absurdities . . . [could] accompany the application of

[Wright to the facts of this case.]” Johnson, 2005 WL 3021080, at *8.

The court, however, denied Knorr’s motion for summary judgment

with respect to Johnson’s restated state law causes of action to the

extent that Knorr advanced a defense on sovereign immunity grounds,

and instead remanded Johnson’s state law claims to the Philadelphia

County Court of Common Pleas. Johnson filed an appeal, and Knorr

filed a cross-appeal challenging the district court’s denial of summary

judgment on Johnson’s state law claims on procedural and

jurisdictional grounds contending that inasmuch as the district court

was remanding those claims to the state court it should not have

considered a defense to them.

III. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C. §§ 1331,

1367, and 1441, and 1343, and we have jurisdiction under 28 U.S.C. §

1291. Our standard of review is plenary over a grant of a motion for

summary judgment. Dilworth v. Metro. Life Ins. Co., 418 F.3d 345,

349 (3d Cir. 2005). We will affirm the district court’s grant of

summary judgment in favor of Knorr if it appears that “there is no

genuine issue as to any material fact and that [he] is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

IV. DISCUSSION

A. Malicious Prosecution

6

The district court has treated the malicious prosecution claims

involved on this appeal as arising solely under the Fourth Amendment.

We note that Johnson also charged the defendants with assault and

battery but we are not concerned with that claim as he made it only under

state law.

9

We initiate our discussion of the merits of the case by setting

forth germane principles of law. Knorr indicates in his brief that the

issue on Johnson’s appeal is whether his “malicious prosecution claim

is foreclosed by the fact that his arrest was supported by probable

cause.” Appellee-cross-appellant’s br. at 2. Johnson states the issue

in much the same way, though he somewhat expands on Knorr’s

formulation by contending that in addition to causing him to be

arrested for terroristic threats, a charge for which there was probable

cause, Knorr caused Johnson to be arrested at the same time for

charges for which there was not probable cause and fabricated

evidence that Johnson had assaulted him to support those groundless

charges.

To prove malicious prosecution under section 19837 when the

claim is under the Fourth Amendment, a plaintiff must show that: (1)

the defendant initiated a criminal proceeding; (2) the criminal

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

proceeding without probable cause; (4) the defendant acted

maliciously or for a purpose other than bringing the plaintiff to

justice; and (5) the plaintiff suffered deprivation of liberty consistent

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

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).8

Malicious prosecution differs from false arrest inasmuch as “[a] claim

7

42 U.S.C. § 1983 provides in part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress . . . .

8

The deprivation of liberty requirement is applicable where the

malicious prosecution claim is under the Fourth Amendment. See infra

n.15. But a constitutional malicious prosecution claim might be brought

raising a First Amendment claim and not implicate liberty issues.

Indeed, that was the situation in the Bivens action of Hartman v. Moore,

126 S.Ct. 1695 (2006).

10

for false arrest, unlike a claim for malicious prosecution, covers

damages only for the time of detention until the issuance of process or

arraignment, and not more.” Montgomery v. De Simone, 159 F.3d

120, 126 (3d Cir. 1998); see also Heck v. Humphrey, 512 U.S. 477,

484, 114 S.Ct. 2364, 2371 (1994) (“[U]nlike the related cause of

action for false arrest or imprisonment, [malicious prosecution]

permits damages for confinement imposed pursuant to legal

process.”); Montgomery, 159 F.3d at 128-29 (Roth, J., dissenting)

(“[A] false arrest claim, in which a person may have been illegally

arrested even though guilty of the prosecuted offense, is very different

from a malicious prosecution claim where the propriety of the

prosecution itself depends on it being initiated with probable cause.”).

In Wright, 409 F.3d at 603-04, an appeal that involved section

1983 claims for both false arrest and malicious prosecution, we

explained that under Barna v. City of Perth Amboy the plaintiff’s

claim of false arrest would fail because there was probable cause for

her arrest for one of the offenses for which she had been arrested. We

further concluded that the existence of probable cause with respect to

one offense for which the plaintiff was arrested similarly “disposes of

her malicious prosecution claims with respect to all of the charges

brought against her.” 409 F.3d at 604 (emphasis added). We

explained that “[t]o prevail on [a malicious prosecution] claim, [the

plaintiff] must show that the officers lacked probable cause to arrest

her.” Id. 9

9

We observe that we adjudicated the issue relating to malicious

prosecution in Wright in a single paragraph without citation of any

precedent. This circumstance, however, does not diminish the

precedential status of that case. We also observe that in light of the facts

of that case, where the circumstances leading to the arrest and

prosecution were totally intertwined, the result was reasonable because

there the officers took their actions by the time of the arrest and thus

before the prosecution. Here, however, Knorr’s conduct was bifurcated

in the sense that the agents first arrested Johnson and then, after the

arrest, Knorr took steps by supplying information to Detective Dove that

led to Johnson’s prosecution. Indeed, in our opinion on the first appeal

in this case, we took note of that point by indicating that Johnson argued

“that he had stated a claim under a malicious prosecution theory,

grounded not in the probation office confrontation, but in Knorr’s

statements about the incident made to Philadelphia police which led to

[his] prosecution.” Johnson, 130 Fed. Appx. at 554.

11

The Court of Appeals for the Second Circuit has held,

however, that probable cause on one charge does not foreclose a

malicious prosecution cause of action against a defendant for having

brought criminal charges involving different elements. Posr v.

Doherty, 944 F.2d 91, 100 (2d Cir. 1991). In Posr, the plaintiff

asserted, inter alia, false arrest and malicious prosecution claims

against two New York City Police Officers claiming that he was

“unconstitutionally and unlawfully accosted, beaten, arrested, and

jailed for forty hours, until he was able to post bail, on charges that

were ultimately dropped.” Id. at 93. In response to a jury question

during deliberations, the district court instructed the jury that “if the

jury found probable cause supporting any of the three charges of [1]

disorderly conduct, [2] resisting arrest and [3] assault lodged against

[the plaintiff], no liability for malicious prosecution could be found as

to any of the charges filed.” Id. at 100 (emphasis added). The jury

ultimately found the defendant10 not liable on the charge of malicious

prosecution. Id. In concluding that the plaintiff was entitled to a new

trial on the malicious prosecution cause of action, the court of appeals

explained:

If the rule were the one followed by the district court,

an officer with probable cause as to a lesser offense

could tack on more serious, unfounded charges which

would support a high bail or a lengthy detention,

knowing that the probable cause on the lesser offense

would insulate him from liability for malicious

prosecution on the other offenses.

Id.

In Luthe v. City of Cape May, 49 F. Supp. 2d 380, 394 (D.N.J.

1999), a case that the district court decided before we decided Wright,

409 F.3d 595, the court explained that “[t]he Third Circuit ha[d] not

decided ‘[w]hether and in what circumstances a plaintiff may

maintain a malicious prosecution action based on one groundless

accusation, when probable cause existed for one or more other

accusations made concurrently . . . .’” (quoting Rivera-Marcano v.

Normeat Royal Dane Quality A/S, 998 F.2d 34, 38 (1st Cir. 1993)).11

10

The plaintiff in Posr asserted a malicious prosecution cause of

action against only one of the defendants. 944 F.2d at 94-95.

11

Rivera-Marcano was concerned with the law of Puerto Rico.

12

The court then applied the rule that the Court of Appeals for the

Second Circuit set forth in Posr, 944 F.2d 91, and held that “the

existence of probable cause to arrest [the plaintiff] on the charges of

harassment and criminal mischief does not prevent her from

maintaining a cause of action for malicious prosecution on the

baseless charge of burglary.” Luthe, 49 F. Supp. 2d at 396.

On this appeal, Johnson argues that the district court in this

case erred in relying on Wright to dismiss his claim of malicious

prosecution. In particular, Johnson urges that we limit Wright’s

application to cases “in which the only evidence of malicious

prosecution is lack of probable cause for certain offenses.” Appellant-

cross-appellee’s br. at 18. According to Johnson, Wright is

distinguishable from the present matter “in which fabrication of

evidence and perversion of our system of justice is involved.” Id.

We agree with Johnson to the extent that we do not understand

Wright to establish legal precedent of such broad application that it

would “insulate” law enforcement officers from liability for malicious

prosecution in all cases in which they had probable cause for the arrest

of the plaintiff on any one charge. See Posr, 944 F.2d at 100. As was

true of the result reached by the district court in Posr, the result

reached by the district court here would allow law enforcement

officers to “tack on more serious, unfounded charges” for which there

was not probable cause either for the arrest or for the initiation of

criminal proceedings merely because there was probable cause for the

arrest on any charge. See id. This result seems unprincipled to us as

there is a distinction on the one hand between a simultaneous arrest on

multiple charges where, in a sense the significance of the charges for

which there was not probable cause for arrest is limited as the plaintiff

in the ensuing civil action could have been lawfully arrested and thus

seized on at least one charge and, on the other hand, prosecution for

multiple charges where the additional charges for which probable

cause is absent almost surely will place an additional burden on the

defendant.

We also point out that this case is distinguishable from Wright

for there a defendant police officer merely “prepared an affidavit of

probable cause for [the plaintiff’s] arrest,” 409 F.3d at 598, and then,

after an assistant district attorney approved the affidavit, arrested the

plaintiff. Moreover, in Wright the defendants had probable cause to

arrest the plaintiff in the first place, and their involvement apparently

ended at the time of the arrest. In this case, however, according to

13

Johnson, Knorr, after the arrest at Knorr’s office, “advised

Philadelphia Police Detective Ronald Dove that he had been

threatened and an assault had been committed upon Agent Jones.”

App. at 486. In his deposition, Knorr answered in the affirmative

when asked if he wanted Johnson “to be charged,” although “[i]f [the

detectives] would have said we’re not charging him, [he] wouldn’t

have argued the fact.” Id. at 275. Knorr also stated that he “was a bit

agitated” with Johnson based on their confrontation in the waiting

room. Id. Therefore, Johnson’s allegations against Knorr extend

beyond his arrest and relate to Knorr’s statements and conduct in

supplying information to Dove leading to the initiation of criminal

proceedings.

Furthermore, unlike the plaintiff in Wright, who did not make

similar allegations, Johnson alleges that Knorr intentionally

misrepresented the events that took place in the waiting room, see

appellant-cross-appellee’s br. at 11 (“In order to substantiate criminal

charges being brought against Mr. Johnson, Agent Knorr fabricated,

to Detective Dove, a set of facts which were known to be untrue and

which led to Mr. Johnson’s arrest by the Philadelphia police and

prosecution by the District Attorney’s office.”), and Johnson alleges

that Knorr intentionally and fraudulently fabricated the charges

against him. Therefore, unlike the conduct of the defendants in

Wright, Knorr’s involvement in both the arrest and the initiation of

criminal proceedings against Johnson was more extensive and lasted

beyond the issuing of an affidavit of probable cause for his arrest and

the arrest itself. In the circumstances, for both the legal and factual

reasons we have set forth, we will not apply Wright to this case and

thereby insulate Knorr from liability for the alleged fraudulent

fabrication of baseless charges against Johnson.12

Our result is not inconsistent with the principle that, in

analyzing false arrest claims, a court to insulate a defendant from

liability need find only that “[p]robable cause . . . . exist[ed] as to any

offense that could be charged under the circumstances.” Barna v. City

of Perth Amboy, 42 F.3d at 819. Thus, we do not question the rule

that there need not have been probable cause supporting charges for

12

We reiterate that in view of the procedural posture of the case

we are taking the facts in the light most favorable to Johnson. For all

that we know, it may be Johnson’s allegations in this case, rather than

Knorr’s version of the September 6, 2000 incident, that may be baseless

and fabricated.

14

every offense for which an officer arrested a plaintiff for the arresting

officer to defeat a claim of false arrest. See Wright, 409 F.3d at 602-

04. The rationale of this rule is that “[t]he existence of probable cause

[for one offense] . . . justifie[s] the arrest-and defeats [the plaintiff’s]

claim of false arrest-even if there was insufficient cause to arrest on

the [second offense] alone.” Edwards v. City of Philadelphia, 860

F.2d 568, 576 (3d Cir. 1988). However, a cause of action for

malicious prosecution may be based on the prosecution of more than

one charge, and the validity of the prosecution for each charge comes

into question inasmuch as the plaintiff was subject to prosecution on

each individual charge which, as we have noted, is likely to have

placed an additional burden on the plaintiff.

Overall, we are satisfied that notwithstanding the rule when a

plaintiff is pursuing false arrest charges, a defendant initiating

criminal proceedings on multiple charges is not necessarily insulated

in a malicious prosecution case merely because the prosecution of one

of the charges was justified. As the Court of Appeals for the Second

Circuit explained in Posr, courts “need to separately analyze the

charges claimed to have been maliciously prosecuted.” Posr, 944

F.2d at 100. Accordingly, although the district court properly

dismissed Johnson’s claim of false arrest based on the existence of

probable cause to arrest Johnson for terroristic threats, the court erred

in dismissing his claim of malicious prosecution inasmuch as the

court did not consider whether there was probable cause to initiate the

criminal proceedings with respect to the remaining offenses.

Therefore, we will reverse the order for summary judgment13 and will

remand the case to the district court for further proceedings on

Johnson’s malicious prosecution claims except any claim relating to

terroristic threats as there was probable cause for the terroristic threat

charges.14

13

Though we are reversing the district court we nevertheless

praise it for its faithful adherence to our precedent in Wright. After all,

the court attempted to follow Wright even though it thought that

applying Wright would lead to an absurd result.

14

We note that Johnson’s detention in the cell at the police station

for approximately two days until he could “make bail,” constitutes a

“deprivation of liberty consistent with the concept of seizure as a

consequence of a legal proceeding.” See Estate of Smith, 318 F.3d at

521. Where the malicious prosecution claim sounds in the Fourth

Amendment, the plaintiff “must show some deprivation of liberty

15

B. State Law Claims

consistent with the concept of ‘seizure.’” Gallo, 161 F.3d at 222

(citation omitted). In Gallo, the court found a seizure where the plaintiff

“had to post a $10,000 bond, he had to attend all court hearings

including his trial and arraignment, he was required to contact Pretrial

Services on a weekly basis, and he was prohibited from traveling outside

New Jersey and Pennsylvania.” Id. We found Justice Ginsburg’s

concurrence in Albright v. Oliver, 510 U.S. 266, 276, 114 S.Ct. 807, 814

(1994), “compelling and supported by Supreme Court case law,” Gallo,

161 F.3d at 223, in which she stated that a defendant who is released on

bail “is scarcely at liberty; he remains apprehended, arrested in his

movements, indeed ‘seized’ for trial, so long as he is bound to appear in

court and answer the state’s charges.” 510 U.S. at 279, 114 S.Ct. at 816.

Similarly, in DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d

Cir. 2005), we recognized that “[p]retrial custody and some onerous

types of pretrial, non-custodial restrictions constitute a Fourth

Amendment seizure,” though we nonetheless concluded that the

plaintiffs’ “attendance at trial did not [itself] qualify as a Fourth

Amendment seizure.” See also Torres v. McLaughlin, 163 F.3d 169,

174 (3d Cir.1998) (“[T]he limits of Fourth Amendment protection relate

to the boundary between arrest and pretrial detention.”)

Here, Johnson was detained in a cell at the police station for

approximately two days prior to being released when he could “make

bail,” and he was ordered to appear approximately six weeks later at a

preliminary hearing. Johnson’s pretrial custody for approximately two

days, the requirement that he make bail, and the fact that he was ordered

to return in approximately six weeks for a hearing constitute a

deprivation of liberty consistent with the concept of “seizure.”

It is appropriate for us to make some points regarding the

proceedings on the remand. First, on the remand Johnson will have the

burden to “show that the criminal action was begun without probable

cause for charging the crime the first place.” Hartman v. Moore, 126

S.Ct. 1695, 1702 (2006). Moreover, the remand is without prejudice to

Knorr contending in the district court, as he contended in this court, that

Johnson cannot establish a Fourth Amendment malicious prosecution

case because the prosecution for the additional charges for which there

might not have been probable cause in no way resulted in additional

restrictions on his liberty beyond those attributable to the prosecution on

the terroristic threats charges for which there was probable cause.

16

On his cross-appeal, Knorr challenges the portion of the

district court’s order in which it dismissed Johnson’s state law claims

because it would not exercise supplemental jurisdiction over them, yet

nonetheless addressed the merits of, and rejected Knorr’s state law

defense that he is immune from suit based on the principles of

sovereign immunity. Knorr argues that the “[t]he district court erred

by attempting simultaneously to assert and decline jurisdiction over

Johnson’s state law claims.” Appellee-cross-appellant’s br. at 12.

Inasmuch as we are reversing the district court’s order for summary

judgment with respect to Johnson’s section 1983 claim of malicious

prosecution, we will vacate the district court’s remand of his

supplemental state law claims to the state court, and the district court

on the remand should reinstate those claims.15 See Estate of Smith,

318 F.3d at 522.

On the remand the district court will be exercising jurisdiction

over Johnson’s state law claims and consequently will be free to make

substantive orders with respect to them. Thus, the district court on the

remand may revisit all aspects of those claims and the defenses to

them which is exactly what it would have done if we held that it erred

in considering Knorr’s sovereign immunity defense even though it

was remanding the state law claims to the state court.16 In the

circumstances, Knorr’s contention that the court erred in considering

Johnson’s state law claims on the merits is moot because Knorr on his

appeal contends only that the court should not have reached the merits

of those claims and, in light of our disposition of this appeal, now it

should do so. Of course, we cannot consider the merits of Knorr’s

sovereign immunity defense because he does not contend that the

district court substantively erred in its decision rejecting the defense

and, accordingly, has not briefed the substantive issue raised by the

defense. Therefore, we will dismiss his appeal.

15

28 U.S.C. § 1367(c)(3) provides that a district court may

decline to exercise supplemental jurisdiction over state law claims if the

court has dismissed all of the claims over which it had original

jurisdiction.

16

Under Fed. R. Civ. P. 54(b) in a case in which a final judgment

has not been entered, which in light of our disposition of the appeal is

the situation here, any order “is subject to revision at any time before the

entry of judgment adjudicating all the claims and the rights and liabilities

of all the parties.”

17

V. CONCLUSION

For the foregoing reasons on Johnson’s appeal at No. 05-5029

we will reverse the order of October 31, 2005, and will remand this

case to the district court for further proceedings consistent with this

opinion. In particular, Johnson’s malicious prosecution claims will be

reinstated, the order remanding his state law claims to the district

court will be vacated and Johnson will be able to pursue his section

1983 malicious prosecution claims and the supplemental state law

claims in the district court. We, however, do not preclude the district

court from declining to exercise jurisdiction over the supplemental

state law claims should it again dismiss Johnson’s section 1983

claims. Knorr’s appeal at No. 05-5139 is dismissed as moot. The

parties will bear their own costs on this appeal.

18