Dwayne Harvard v. Christopher Cesnalis

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-1012

DWAYNE HARVARD

Appellant

v.

CHRISTOPHER J. CESNALIS; DANIEL L.

BEATTY

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No.: 2-17-cv-00505)

District Judge: Honorable Joy Flowers Conti

Argued July 2, 2020

(Opinion Filed: September 1, 2020)

Before: GREENAWAY, JR., SHWARTZ, and RENDELL,

Circuit Judges.

Massimo Terzigni (Argued)

Joel S. Sansone

Law Offices of Joel Sansone

603 Stanwix Street

Two Gateway Center, Suite 1290

Pittsburgh, PA 15222

Counsel for Appellant

Michael J. Scarinci (Argued)

Daniel B. Mullen

Office of the Attorney General of Pennsylvania

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

Counsel for Appellees

O P I N I O N

RENDELL, Circuit Judge:

This case involves a series of troubling events resulting

in Appellant Dwayne Harvard being arrested and charged with

six state crimes ranging from reckless endangerment to driving

under the influence. Harvard brought an action under 42

U.S.C. § 1983 against the involved police officers in the United

States District Court for the Western District of Pennsylvania

claiming false arrest, false imprisonment, malicious

prosecution, violation of his right to Equal Protection, reckless

investigation, and civil conspiracy. The District Court granted

summary judgment for the defendant police officers,

2

concluding inter alia that no reasonable juror could conclude

that the officers lacked probable cause to arrest Harvard for the

crimes charged. We disagree. We will vacate the District

Court’s grant of summary judgment for defendant state trooper

Christopher Cesnalis as to the false arrest, false imprisonment,

malicious prosecution and Equal Protection claims. We will

affirm the District Court’s grant of summary judgment in favor

of Cesnalis as to the remaining claims. We will also affirm the

District Court’s grant of summary judgment in favor of

defendant state trooper Daniel Beatty on all claims.

I. BACKGROUND

A. Factual Background

This incident began with an offer of a ride home. After

leaving a sports bar in New Kensington, Pennsylvania where

he had spent two hours watching sports, eating food, and

drinking two beers, Harvard was flagged down by a stranger,

Anna Mazzetti, who was standing outside a convenience store.

Mazzetti asked Harvard for a ride home. She told Harvard that

she was afraid of her boyfriend, who had been drinking and

was physically abusive. Harvard agreed to give Mazzetti a ride

home.

Upon arrival, Mazzetti’s boyfriend, Steven Sutton,

approached Harvard’s vehicle and began yelling at Mazzetti,

making threats, and trying to get Mazzetti out of the vehicle.

Sutton, a White male, used racial slurs against Harvard, a Black

male. Sutton attempted to enter Harvard’s vehicle, but the

doors were locked. Sutton then proceeded to pick up a cinder

block and cocked his arm back as if to throw the cinder block

through the vehicle’s windshield. Sutton threatened to kill

both Harvard and Mazzetti multiple times. Sutton brandished

a large kitchen knife and told Mazzetti that he would “chop her

3

up.” App. 57. He also threatened to shoot Harvard. Sutton

then told Harvard to “stay right there” because he “got

something for [him].” App. 283. Sutton then returned to the

house.

Believing Sutton to be a threat, Harvard called 911 to

inform the police of the situation and ask what he should do.

Harvard, afraid for both his and Mazzetti’s safety, proceeded

to exit the driveway while Mazzetti was still in the vehicle with

Harvard. Sutton re-emerged from the house and jumped onto

the hood of Harvard’s moving vehicle, a Ford Explorer SUV.

Harvard slowed his vehicle multiple times to allow Sutton to

remove himself from the vehicle’s hood. Rather than remove

himself, Sutton began pounding on the hood of the vehicle and

continued to threaten to kill Harvard. Sutton also continued to

use racial slurs against Harvard and told Harvard that he would

kill Harvard as soon as he stopped driving. Harvard noticed a

bulge in Sutton’s waistband, which Harvard believed to be a

firearm. Sutton was still carrying the large kitchen knife.

Harvard, still on the phone with 911, informed the operator that

Sutton was on the hood of the vehicle and was threatening to

kill him and Mazzetti.

With Sutton still on the hood, and while still on the

phone with 911, Harvard drove onto the highway, where he

drove around or above the speed limit. Before Harvard entered

the highway, Sutton discarded his knife. Once on the highway,

Sutton ripped the windshield wipers off Harvard’s vehicle.

Harvard remained on the phone with the 911 operator and

requested assistance from law enforcement officers. The 911

operator instructed Harvard to take a specific exit from the

highway, where law enforcement officers would be waiting.

While exiting the highway, Harvard observed Sutton discard

what he believed to be the firearm hidden in his waistband.

4

Following the 911 operator’s instructions, Harvard

exited the highway and reached the police roadblock, where

the officers present had their firearms drawn. At that point,

Harvard had traveled approximately ten miles with Sutton on

the hood of his vehicle. The officers ordered Sutton to get on

the ground and ordered Harvard and Mazzetti to exit the

vehicle with their hands in the air. Sutton was handcuffed and

placed into the back of a patrol car.

Defendant state trooper Cesnalis arrived on the scene

shortly thereafter. Prior to arriving, Cesnalis was informed that

Harvard had been driving on the highway with a man on the

hood of his vehicle. Cesnalis was also informed that Harvard

had contacted 911 and reported that he feared for his safety.

Cesnalis first interviewed Harvard. Harvard informed Cesnalis

of Sutton’s violent and threatening behavior and told Cesnalis

that he was afraid for his life. Harvard also said that Sutton

had been holding a large knife and had continued to reach

towards his waistband, where Harvard believed Sutton carried

a firearm. Cesnalis did not respond to Harvard’s explanation

and made no effort to locate the knife or the firearm.

Instead, Cesnalis asked whether Harvard had been

drinking. Harvard responded that he had consumed two beers

approximately four hours earlier. Cesnalis noted that he

smelled a “moderate” odor of alcohol and that Harvard was

speaking rapidly and appeared sweaty. App. 384. Based on

these observations, Cesnalis asked Harvard to take a

Breathalyzer test, to which Harvard agreed. Harvard initially

had difficulty completing the test. During his attempts,

Cesnalis threatened to handcuff Harvard and said: “You

understand me boy, I want you to blow into the Breathalyzer.”

App. 46 (emphasis omitted). After six tries, Harvard

completed the Breathalyzer test, which indicated that his blood

5

alcohol content (BAC) was 0.064%, below the legal limit of

0.08%. Cesnalis nonetheless inferred that Harvard was under

the influence of stimulants or narcotics because he was sweaty,

speaking rapidly, and not directly answering questions.

Harvard was handcuffed and taken to the police station for

“safety reasons.” App. 46.

Cesnalis interviewed Sutton next. At the time of the

interview, Cesnalis was aware that Sutton had a criminal

record and had prior encounters with the police. Sutton told

Cesnalis that Harvard had hit him with a Ford Explorer SUV

and that Sutton had then landed on the hood of the SUV.

Cesnalis did not think Sutton’s explanation for how he ended

up on top of the SUV after being hit made sense. Cesnalis also

did not observe any injuries to Sutton which would indicate

that he had just been hit by an SUV. Nonetheless, Cesnalis did

not ask any follow up questions to probe Sutton’s explanation.

Despite his incredible statement and Harvard’s account of the

incident, Sutton was not arrested or charged with any crimes.

Cesnalis then interviewed Mazzetti. Prior to

interviewing Mazzetti, Cesnalis testified that he had already

decided to arrest Harvard. Mazzetti corroborated Harvard’s

statements regarding Sutton’s threatening and violent

behavior. Specifically, Mazzetti told Cesnalis that Sutton was

“crazy” and had threatened to throw a cinder block through the

windshield. App. 423. She also said that she was afraid to get

out of the vehicle and that Harvard slowed his vehicle to give

Sutton the opportunity to remove himself from the hood, but

Sutton refused to do so. She also “tried to tell [the officers]

about the butcher’s knife” and stated that Sutton was drunk and

currently on probation. App. 258.

Cesnalis arrested Harvard and transported him to the

police station for further investigation. Harvard again tried to

6

explain that Sutton had a weapon and had been threatening

Harvard and Mazzetti, but Cesnalis ignored these statements.

Cesnalis then informed defendant state trooper Daniel Beatty,

a Drug Recognition Expert, that Harvard had driven with a man

on the hood of his vehicle. Cesnalis also told Beatty that

Harvard had “admitted to drinking several beers” and that

Harvard was “very talkative and sweaty.” App. 540. Cesnalis

further informed Beatty that Sutton had witnessed Harvard

smoking crack cocaine while driving. No evidence supports

this accusation.

Based on the information Cesnalis provided, Beatty ran

a series of tests to determine whether Harvard was under the

influence of drugs or alcohol. Harvard’s BAC at the time of

the examination was 0.051%. Beatty completed a Drug

Recognition Evaluation (DRE), in which he reported that

Harvard was cooperative, his coordination seemed poor, his

face was sweaty, he was very talkative, his eyes were bloodshot

and watery, his pulse was substantially higher than normal, and

there was a lack of smooth pursuit during the horizontal gaze

nystagmus. Beatty detected no distinct odors. Beatty’s DRE

concluded that Harvard was “under the influence of CNS

Depressants and CNS Stimulants,” which “impaired his ability

to safely drive, operate or be in actual physical control of a

motor vehicle.” App. 545-46. Beatty requested that Harvard

consent to a blood test, to which Harvard agreed. The blood

test later returned negative results for all tested drugs and

indicated that Harvard’s BAC was 0.016%.

Cesnalis filed an affidavit of probable cause with the

magistrate judge, charging Harvard with: (1) recklessly

endangering another person (18 Pa. Cons. Stat. § 2705); (2)

reckless driving (75 Pa. Cons. Stat. § 3736(a)); (3) simple

assault (18 Pa. Cons. Stat. § 2701(a)(3)); (4) aggravated assault

7

(18 Pa. Cons. Stat. § 2702(a)(1)); (5) disorderly conduct (18

Pa. Cons. Stat. § 5503(a)(4)); and (6) driving under the

influence of a controlled substance (75 Pa. Cons. Stat.

§ 3802(d)(2)).1 In the affidavit, Cesnalis referred to Sutton as

“the victim” and entirely credited Sutton’s version of events.

For example, Cesnalis indicated that Harvard hit Sutton with

his vehicle; Sutton landed on the hood of the vehicle; and

Harvard continued driving and refused to stop, leaving Sutton

“hanging onto the hood of the vehicle for his life” until Harvard

1

A person is guilty of recklessly endangering another person

if he “recklessly engages in conduct which places or may place

another person in danger of death or serious bodily injury.” 18

Pa. Cons. Stat. § 2705.

A person is guilty of reckless driving if he “drives any vehicle

in willful or wanton disregard for the safety of persons or

property.” 75 Pa. Cons. Stat. § 3736(a).

A person is guilty of simple assault if he “attempts by physical

menace to put another in fear of imminent serious bodily

injury.” 18 Pa. Cons. Stat. § 2701(a)(3).

A person is guilty of aggravated assault if he “attempts to cause

serious bodily injury to another.” 18 Pa. Cons. Stat. §

2702(a)(1).

A person is guilty of disorderly conduct if he “creates a

hazardous or physically offensive condition by any act which

serves no legitimate purpose of the actor.” 18 Pa. Cons. Stat.

§ 5503(a)(4).

A person is guilty of driving under the influence of alcohol or

a controlled substance if he was “under the influence of a drug

or combination of drugs to a degree which impairs the

individual’s ability to safely drive, operate or be in actual

physical control of the movement of the vehicle.” 75 Pa. Cons.

Stat. § 3802(d)(2).

8

was eventually stopped by local police officers. App. 133.

Cesnalis indicated that he believed Sutton’s version of events

because of Harvard’s “reputation for criminal activity,” App.

132, despite there being no evidence that Harvard has a

criminal background. Cesnalis also omitted several

exculpatory facts from the affidavit. For example, Cesnalis did

not include that Harvard initiated the 911 call because he feared

for his safety or that he followed the 911 operator’s

instructions, which guided him to the police blockade. Further,

he did not include statements from either Harvard or Mazzetti

indicating that Sutton was violent and aggressive, that Sutton

had a weapon, that Sutton threatened to kill them, or that

Harvard slowed down his vehicle to allow Sutton to get off the

hood, which Sutton refused to do. Cesnalis also failed to note

that Harvard completed a Breathalyzer test and his BAC was

below the legal limit.

After a preliminary hearing, the magistrate judge

dismissed the DUI charge. A bench trial was held on the

remaining charges and Harvard was found not guilty on all

charges.

B. Procedural History

Harvard brought a § 1983 claim against Cesnalis and

Beatty alleging: false arrest, false imprisonment, malicious

prosecution, violation of the Equal Protection clause, reckless

investigation, and civil conspiracy to deprive him of his rights

under the Fourth Amendment.2 The defendants filed a motion

for summary judgment, arguing that Harvard failed to assert

any viable claims under § 1983.

2

Harvard also asserted various state law claims, but later

withdrew them at summary judgment.

9

The District Court granted summary judgment for the

defendants on all claims. For the false arrest, false

imprisonment, and malicious prosecution claims, the District

Court concluded that no reasonable juror could find probable

cause lacking. For the Equal Protection claim, the District

Court ruled that Harvard failed to identify a similarly situated

person who was treated differently because of race. For the

reckless investigation claim, the District Court determined that

our Circuit has never recognized such a claim under § 1983,

and even if such a claim were recognized in this case, the

officers would be entitled to qualified immunity. For the civil

conspiracy claim, the District Court granted summary

judgment for the defendants because there was no underlying

violation of Harvard’s constitutional rights, based on its

assessment of the other claims. This appeal followed.

II JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §

1331 and we have jurisdiction under 28 U.S.C. § 1291. We

exercise plenary review of a district court’s grant of summary

judgment. Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir.

2010). We may affirm the District Court’s grant of summary

judgment only if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). When assessing a summary judgment

ruling, we must view all facts “in the light most favorable to

the non-moving party, who is ‘entitled to every reasonable

inference that can be drawn from the record.’” Reedy, 615 F.3d

at 210 (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d

782, 788 (3d Cir. 2000)). We may only affirm a district court’s

grant of summary judgment if “the evidence, viewed most

favorably to [the nonmoving party], reasonably would not

10

support a contrary factual finding.” Dempsey v. Bucknell

Univ., 834 F.3d 457, 468 (3d Cir. 2016) (alteration in original)

(citation omitted).

III. DISCUSSION

Harvard challenges the District Court’s Order granting

summary judgment for the defendants on all claims. Harvard

argues that his claims should have proceeded to trial because

the defendants led a racially biased investigation against him;

arrested, imprisoned, and charged him without probable cause;

and conspired to deprive him of his constitutional rights. We

will address each claim in turn.

A. False Arrest

To bring a claim for false arrest, a plaintiff must

establish “(1) that there was an arrest; and (2) that the arrest

was made without probable cause.” James v. City of Wilkes-

Barre, 700 F.3d 675, 680 (3d Cir. 2012). The parties agree that

Cesnalis arrested Harvard at the scene but disagree on whether

Cesnalis had probable cause to arrest him. False arrest and

false imprisonment claims will “necessarily fail if probable

cause existed for any one of the crimes charged against the

arrestee.” Dempsey, 834 F.3d at 477. Thus, summary

judgment for false arrest and false imprisonment is proper only

if no reasonable juror could find a lack of probable cause for

any of the charged crimes.3 We must therefore assess the

requirements for all of the crimes charged to determine

3

For malicious prosecution, probable cause on one charge

“does not foreclose a malicious prosecution cause of action” as

to a separate charge which lacks probable cause. Johnson v.

Knorr, 477 F.3d 75, 83 (3d Cir. 2007).

11

whether any reasonable juror could find that Cesnalis lacked

probable cause to arrest Harvard. Harvard was arrested for six

separate crimes and, as we outlined in footnote 1, supra, each

of the six crimes has a different requisite mental state. We will

therefore assess whether any reasonable juror could find that

Harvard lacked the requisite mental state for each of the crimes

charged.

“Probable cause exists if there is a ‘fair probability’ that

the person committed the crime at issue.” Wilson v. Russo, 212

F.3d 781, 789 (3d Cir. 2000) (citation omitted). An officer has

probable cause to arrest a person “when the facts and

circumstances within the arresting officer’s knowledge are

sufficient in themselves to warrant a reasonable person to

believe that an offense has been or is being committed by the

person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d

480, 483 (3d Cir. 1995). In determining probable cause,

arresting officers must consider plainly exculpatory evidence

in addition to inculpatory evidence. Wilson, 212 F.3d at 790.

This is true “even if substantial inculpatory evidence (standing

by itself) suggests that probable cause exists.” Id. (quoting

Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999)).

Because we are evaluating probable cause at the

summary judgment stage, we must assess probable cause based

upon the “totality-of-the-circumstances” available to the

arresting officer and view those circumstances in the light most

favorable to Harvard. Dempsey, 834 F.3d at 467-68 (citation

omitted). As part of this assessment, we must determine

whether the plainly exculpatory evidence available to the

arresting officer “outweighs the probable cause otherwise

established” through inculpatory evidence. Id. at 478, 490

(alteration, internal quotation marks, and citation omitted).

This totality-of-the-circumstances inquiry is “necessarily fact-

12

intensive” and thus “it will usually be appropriate for a jury to

determine whether probable cause existed.” Id. at 468; see also

Merkle, 211 F.3d at 788 (“Generally, the question

of probable cause in a section 1983 damage suit is one for the

jury.” (internal quotation marks and citation omitted)). We

undertake our analysis on a crime-by-crime basis.

First, a person is guilty of recklessly endangering

another person if he “recklessly engages in conduct which

places or may place another person in danger of death or

serious bodily injury.” 18 Pa. Cons. Stat. § 2705. Driving with

a man on the hood of a vehicle undoubtedly places the person

on the hood in danger of serious bodily injury. Thus, the actus

reus requirement for reckless endangerment is satisfied, as no

reasonable juror could find otherwise. But we are not so sure

for the mens rea requirement, namely, whether Harvard acted

recklessly in light of the totality of the circumstances.

Under Pennsylvania law, a person acts recklessly when

he “consciously disregards a substantial and unjustifiable risk.”

18 Pa. Cons. Stat. § 302(b)(3). Viewing the facts in the light

most favorable to Harvard, a reasonable juror could find that

Harvard acted as a good Samaritan by agreeing to give

Mazzetti—standing alone and afraid of her boyfriend,

Sutton—a ride home. Once Sutton emerged from the house,

aggressive, violent, and threatening, and then jumped onto the

hood of his vehicle, a juror could find that Harvard’s decision

to drive with Sutton on the hood of his vehicle was a justifiable

risk to protect himself and Mazzetti from Sutton’s abhorrent

behavior. This is particularly true because Harvard slowed his

vehicle multiple times to allow Sutton to remove himself from

the hood, but Sutton refused to do so and instead pounded on

the hood of the vehicle and threatened to kill Harvard and

Mazzetti as soon as Harvard stopped driving. Moreover,

13

Harvard contacted 911 for help and followed the 911

operator’s instructions throughout the entire incident. We

therefore conclude that, viewing all of the facts in the light

most favorable to Harvard, a reasonable juror could find that

Harvard was not consciously disregarding an unjustifiable risk

and could find a lack of probable cause for the crime of

recklessly endangering another person.

Second, a person is guilty of reckless driving if he

“drives any vehicle in willful or wanton disregard for the safety

of persons or property.” 75 Pa. Cons. Stat. § 3736(a). “Willful

or wanton” within the context of reckless driving “means the

driver grossly deviates from ordinary prudence and creates a

substantial risk of injury.” Commonwealth v. Carroll, 936

A.2d 1148, 1151 (Pa. Super. 2007) (emphasis omitted),

abrogated on other grounds by Commonwealth v. Karetny, 880

A.2d 505 (Pa. 2005). Like the crime of reckless endangerment,

a juror could find that Harvard’s decision to drive with Sutton

on the hood of his vehicle did not demonstrate a callous

disregard for Sutton’s life, but rather, was a justifiable risk to

protect himself and Mazzetti.

Third, a person is guilty of simple assault if he “attempts

by physical menace to put another in fear of imminent serious

bodily injury.” 18 Pa. Cons. Stat. § 2701(a)(3). Considering

the exculpatory facts, a reasonable juror could find that

Harvard did not intend to put Sutton in fear of serious bodily

injury. In fact, the evidence suggests that Harvard attempted

to de-escalate the situation to avoid causing harm to Sutton.

For example, after Sutton jumped onto the hood, Harvard

slowed his vehicle multiple times and asked Sutton to remove

himself from the hood, yet Sutton refused. Further, Sutton, not

Harvard, continued his aggressive and threatening behavior

towards Harvard and Mazzetti. Also, Harvard followed the

14

911 operator’s instructions to get off the highway at a particular

exit, where law enforcement would be waiting. Accordingly,

a reasonable juror could find that Harvard did not have the

requisite intent for simple assault.

Fourth, a person is guilty of aggravated assault if he

“attempts to cause serious bodily injury to another.” 18 Pa.

Cons. Stat. § 2702(a)(1). Because a reasonable juror could find

a lack of probable cause for simple assault, we similarly find

that a reasonable juror could find a lack of probable cause for

the more serious crime of aggravated assault.

Fifth, a person is guilty of disorderly conduct if he acts

“with intent to cause public inconvenience, annoyance or

alarm, or recklessly creating a risk thereof” and “creates a

hazardous or physically offensive condition by any act which

serves no legitimate purpose of the actor.” 18 Pa. Cons. Stat.

§ 5503(a)(4). As discussed for the above crimes, a juror could

find that the evidence available to Cesnalis showed that

Harvard drove with Sutton on the hood of his vehicle because

he feared for the safety of himself and Mazzetti, not because

he intended to cause public inconvenience, annoyance or

alarm. Accordingly, we conclude that a reasonable juror could

find that there was no probable cause for disorderly conduct.

Finally, sixth, a person is guilty of driving under the

influence if he was “under the influence of a drug or

combination of drugs to a degree which impairs the

individual’s ability to safely drive, operate or be in actual

physical control of the movement of the vehicle.” 75 Pa. Cons.

Stat. § 3802(d)(2). For the DUI charge, Cesnalis determined

there was probable cause to arrest Harvard because he smelled

alcohol on Harvard’s breath and because Harvard was sweaty

15

and speaking rapidly.4 Although we must consider these

observations as part of our probable cause inquiry, we must

consider them in the light most favorable to Harvard. See

Dempsey, 834 F.3d at 468. Here, a juror could find that a

reasonable officer would have interpreted Harvard’s sweaty

appearance and rapid speech as a natural reaction to the

traumatic events he had just experienced. Indeed, Cesnalis

testified during his deposition that Harvard’s rapid speech and

sweaty appearance was likely a result of this recent trauma.

Further, although Cesnalis smelled a moderate amount of

alcohol on Harvard’s breath, Harvard informed Cesnalis that

he had consumed two beers four hours before the incident,

which is consistent with the results of the Breathalyzer test

indicating that his BAC was below the legal limit. Under

Pennsylvania law, a person’s BAC need not be above the legal

limit for a DUI charge, however, we note that Cesnalis could

observe that Harvard was a large man. Standing 5 feet 10

inches tall and weighing 345 pounds at the time of arrest, a

juror could find that it was unreasonable for Cesnalis to believe

that two beers consumed four hours beforehand could render

Harvard incapable of safely operating his vehicle.

Based on the information Cesnalis knew at the time of

arrest and the horrific events Harvard had just experienced, a

juror could find that Cesnalis did not have probable cause to

arrest Harvard for DUI. Thus, we conclude that the District

4

Cesnalis arrested Harvard before Beatty conducted the DRE,

and therefore the information within Beatty’s report cannot be

considered in evaluating the false arrest claim. See Hunter v.

Bryant, 502 U.S. 224, 228 (1991) (holding that probable cause

is assessed in relation to the facts possessed by the arresting

officer at the time he made the warrantless arrest).

16

Court erred in determining, as a matter of law, that Cesnalis

had probable cause to arrest Harvard for the crime of DUI.

Accordingly, we will vacate the District Court’s grant

of summary judgment for Cesnalis as to the false arrest claim.5

B. False Imprisonment

“[W]here the police lack probable cause to make an

arrest, the arrestee has a claim under § 1983 for false

imprisonment based on a detention pursuant to that arrest.”

Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir.

1995). “To state a claim for false imprisonment, a plaintiff

must establish: (1) that [he] was detained; and (2) that the

detention was unlawful.” James, 700 F.3d at 682-83. Like his

arrest, Harvard argues that he was imprisoned without probable

cause. Specifically, Harvard alleges that he was unlawfully

detained at the police barracks, where defendant Beatty

required him to undergo a series of tests, and was later

transported to the Allegheny County Jail, where he was

imprisoned.

Our probable cause analysis for false imprisonment is

largely the same as our probable cause analysis for false arrest.

Because a juror could find that Cesnalis lacked probable cause

to arrest Harvard, it follows that a juror could “find that

[Harvard] suffered a violation of his constitutional rights by

virtue of his detention pursuant to that arrest.” Groman, 47

F.3d at 636. The only addition to our probable cause inquiry

under false imprisonment is Beatty’s drug evaluation. Beatty

conducted a DRE, in which he concluded that Harvard was

5

Because Beatty was not involved in Harvard’s arrest, we will

affirm the District Court’s grant of summary judgment for

Beatty on the false arrest claim.

17

“under the influence of CNS Depressants and CNS

Stimulants,” which “impaired his ability to safely drive,

operate or be in actual physical control of a motor vehicle.”

App. 545-46. Although this could be enough to support

probable cause on a DUI charge, his evaluation relied on

erroneous and incomplete information provided by Cesnalis.

Cesnalis informed Beatty that Harvard had driven on the

highway with a man on the hood of his vehicle but did not

provide any other context for Harvard’s actions, including

Sutton’s alleged threatening and violent behavior. Further,

Cesnalis told Beatty that Sutton saw Harvard smoking crack

cocaine while driving, a fact unsupported anywhere else in the

record. Beatty then relied on this unverified, incomplete

information from an unreliable source to draw inferences about

Harvard’s potential drug use. Because Beatty’s DRE was

based on incomplete and potentially falsified information, a

juror could find that the DRE was unreliable and therefore

should not be considered in determining probable cause. Thus,

we will not consider Beatty’s evaluation as part of our probable

cause inquiry for false imprisonment and conclude that a juror

could find that Cesnalis unlawfully detained Harvard.

Accordingly, we will vacate the District Court’s grant

of summary judgment for Cesnalis as to the false imprisonment

claim. We will affirm the District Court’s grant of summary

judgment for Beatty on the false imprisonment claim because

his DRE, and thus his role in the detention, was based on

Cesnalis’s incomplete and potentially falsified information.

C. Malicious Prosecution

To prevail on a malicious prosecution claim, a plaintiff

must demonstrate that: “(1) the defendants initiated a criminal

proceeding; (2) the criminal proceeding ended in [the]

plaintiff’s favor; (3) the proceeding was initiated without

18

probable cause; (4) the defendants 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). Harvard argues that the defendants unlawfully

initiated criminal proceedings against him by “knowingly

providing false and misleading evidence to prosecuting

authorities.” Appellant Br. 30. The defendants argue that the

malicious prosecution claim fails because the criminal

proceedings were initiated with probable cause. We will

address each requirement in turn.

For the first prong, Cesnalis initiated a criminal

proceeding against Harvard when he arrested Harvard without

a warrant and then submitted an affidavit of probable cause to

the magistrate judge as part of the criminal complaint charging

Harvard with six different crimes. See Pa. R. Crim. Pro. 502.

In his affidavit, Cesnalis requested that Harvard “come before

[the magistrate judge’s] court to answer to the [] charges.”

App. 133. Second, these proceedings ended in Harvard’s

favor. The DUI charge was dismissed after the preliminary

hearing, and Harvard was found not guilty on the remaining

charges. Third, a reasonable juror could find that there was a

lack of probable cause for the criminal proceedings initiated

against Harvard. We reach this conclusion for the same

reasons discussed above in our probable cause inquiry for false

arrest and false imprisonment.

Fourth, we must determine whether a reasonable juror

could, viewing the facts in the light most favorable to Harvard,

find that the defendants acted with malice or for a purpose

other than bringing Harvard to justice. Considering Cesnalis’s

behavior, the answer is yes. Cesnalis mischaracterized the

19

events and chose to omit crucial exculpatory information in the

affidavit of probable cause he submitted to the magistrate

judge. 6 In the affidavit, Cesnalis consistently referred to

6

In the affidavit, Cesnalis described the incident as follows:

This incident occurred at 756 McKinley St

Harwick PA, Springdale Twp Allegheny County

when the victim related that his girlfriend and the

DEFENDANT were in his 2002 Ford Explorer

already driving through the yard at 756

McKinley. The VICTIM related that he ran out

into the yard in front of the vehicle and that is

when the DEFENDANT hit the VICTIM with

his vehicle. The VICITM [sic] then landed onto

the hood of the vehicle and the DEFENDANT

continued to drive through the yard. The

VICTIM then stated that he was hanging onto the

hood of the vehicle for his life because the

DEFENDANT wouldn’t stop the vehicle. The

DEFENDANT then drove through Springdale

Twp into Harmar Twp down towards the river

and got onto Freeport Rd and continued South on

Freeport Rd through HARMAR Twp and made

a right onto SR 910 and traveled onto Exit 11 on

Ramp to travel North on SR 28. Then

DEFENDANT then begin to travel at a high rate

of speed on SR 28 as the victim was holding on

for dear life and that is when the windshield

wipers were ripped off the vehicle. The

DEFENDANT drove North on SR 28 through

Harmar Twp, Springdale Twp, Frazer Twp, East

Deer Twp, Tarentum Borough, Fawn Twp, into

20

Sutton as “the victim” and entirely credited Sutton’s

statements. Cesnalis did not mention any of the credibility

issues with Sutton’s version of events, namely, that he knew

Sutton had a criminal history, that Sutton had no visible

injuries, or that his version of events was incredible on its face.

Moreover, Cesnalis indicated that he believed Sutton’s

statement because of Harvard’s “reputation for criminal

activity,” even though there is no evidence in the record to

support this accusation. App. 132. Cesnalis also

misrepresented the facts to make it seem as though Harvard

had to be stopped by law enforcement, despite knowing that

Harvard called 911 because he feared for his safety and that

Harrsion Twp where the DEFENDANT was

stopped by local police. That is when the

VICTIM got off the vehicle and was placed into

the rear of a Harrison Twp police vehicle and the

DEFENDANT was standing on Burtner Rd upon

my arrival.

After the DEFENDANT was on station Trooper

Daniel BEATTY performed a DRE evaluation

which determined that the DEFENDANT was

under the influence of a controlled substance.

It is this affiant’s opinion that the defendant,

Dwayne Milton HARVARD was under the

influence of an [sic] controlled substance and

due to the fact that the DEFENDANT did travel

on the SR 28 with the VICITM [sic] on his hood

of vehicle. Therefore, I request that the defendant

come before your court to answer to the

following charges being brought against him.

App. 133.

21

Harvard followed the 911 operator’s instructions to get off the

highway at a particular exit where police would be waiting.

Furthermore, Cesnalis did not include any relevant exculpatory

facts, including Harvard and Mazzetti’s consistent statements

that Sutton was violent and aggressive and threatened them

with a cinderblock and knife, or that Harvard slowed his

vehicle multiple times in order to allow Sutton to remove

himself from the hood. Cesnalis also omitted any reference to

the results of Harvard’s Breathalyzer tests.

A juror could find that Cesnalis omitted crucial

information from the affidavit and misrepresented the facts in

order to portray Sutton as the victim and Harvard as the

criminal. A juror could further find that no reasonable officer

would omit such crucial information, which, as discussed

above, creates serious doubts as to whether Harvard had the

requisite mental state for the crimes charged. Cesnalis has

offered no explanation for why he chose to credit Sutton’s

statements over Harvard and Mazzetti’s statements, and we can

think of no valid reason for why Cesnalis would include such

grave misrepresentations and falsehoods in the affidavit. For

these reasons, we conclude that a juror could find that Cesnalis

initiated proceedings against Harvard maliciously or for a

reason other than bringing him to justice.

Finally, for the fifth prong, Harvard was detained in

Allegheny County Jail, and therefore suffered “post-indictment

restrictions placed on [Harvard’s] liberty [that] constituted a

seizure.” Donahue v. Gavin, 280 F.3d 371, 380 (3d Cir. 2002).

22

Accordingly, we will vacate the District Court’s grant

of summary judgment for Cesnalis as to the malicious

prosecution claim.7

D. Equal Protection

Harvard argues that the District Court erred in granting

summary judgment for the defendants on his Equal Protection

claim. Harvard brings a selective enforcement claim,

contending that he was treated differently because of his race.

Specifically, Harvard asserts that Sutton, a White male, was

not arrested or charged with any crimes despite his violent and

aggressive behavior and yet Harvard, a Black male, was

unlawfully arrested, imprisoned, and charged despite being the

victim of Sutton’s unlawful behavior.

To establish a selective enforcement claim under the

Equal Protection clause of the Fourteenth Amendment, a

plaintiff must demonstrate that he was (1) treated differently

from other, similarly situated persons and (2) “that this

selective treatment was based on an unjustifiable standard,

such as race, or religion, or some other arbitrary factor or to

prevent the exercise of a fundamental right.” Jewish Home of

E. Pa. v. Ctrs. for Medicare & Medicaid Servs., 693 F.3d 359,

363 (3d Cir. 2012) (alteration, internal quotation marks, and

citation omitted). Persons are similarly situated under the

Equal Protection clause when they are alike “in all relevant

respects.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

Notably, we have held that “similarly situated” does not mean

7

We will affirm the District Court’s grant of summary

judgment for Beatty as to the malicious prosecution claim

because Harvard has not established that Beatty participated in

initiating criminal proceedings against him or that Beatty acted

with the requisite intent.

23

“identically situated.” Bennun v. Rutgers State Univ., 941 F.2d

154, 178 (3d Cir. 1991), abrogated on other grounds by St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515-16 (1993). Our

sister circuits have also emphasized that courts conducting the

“similarly situated” inquiry “should not demand exact

correlation, but should instead seek relevant similarity.”

Stimmel v. Sessions, 879 F.3d 198, 212 (6th Cir. 2018) (citation

omitted); see also Barrington Cove Ltd. P’ship v. R.I. Hous. &

Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001) (“Exact

correlation is neither likely nor necessary, but the cases must

be fair congeners.”).

The District Court held that Harvard failed to identify a

similarly situated person because he cannot “point to any

caucasian drivers who drove at highway speeds with someone

on the hood of the vehicle, but were not charged with crimes.”

App. 12. We find this definition of “similarly situated” overly

restrictive. The District Court’s application of “similarly

situated” essentially requires that the comparator be identically

situated to Harvard for the Equal Protection claim to succeed.

We have previously rejected this requirement and do so again

here. See Bennun, 941 F.2d at 178.

Requiring a valid comparator to have taken the exact

same actions as the plaintiff would effectively bar equal

protection claims in unique situations such as this. Cesnalis

noted that he had never encountered such a strange situation

during his time as a police officer, and we note that it would be

almost impossible for a plaintiff to identify an identically

situated person in a situation such as this. Instead, we must re-

frame the question not as whether the two individuals’ actions

were identical, but whether a juror, “looking objectively at the

incidents, would think them roughly equivalent and the

24

protagonists similarly situated.” Barrington Cove, 246 F.3d at

8.

Here, Harvard and Sutton’s actions occurred during the

same incident and could therefore be easily compared side-by-

side. Indeed, Cesnalis had the opportunity to do just that when

he interviewed Harvard and Sutton at the same time in the same

location. Cesnalis also had evidence that both Sutton and

Harvard engaged in behavior that threatened the safety of

another person. At a minimum, Harvard and Sutton each

alleged that the other person was engaged in violent behavior

and wielded dangerous weapons: Harvard alleged that Sutton

attempted to throw a cinder block towards him, jumped onto

Harvard’s vehicle while holding a large kitchen knife and

threatened to kill him, and possessed a firearm; and Sutton

alleged that Harvard struck him with his vehicle. Viewing

Sutton and Harvard as two persons who engaged in allegedly

threatening and violent behavior with a dangerous weapon,

whose actions occurred during the same incident, and whose

actions (if true) could potentially give rise to similar criminal

charges, we find that a reasonable juror could determine they

are similarly situated.

A juror could also find that there was no rational basis

for disparate treatment towards Harvard except upon the basis

of Harvard’s race. Cesnalis chose to ignore overwhelming

evidence that Sutton was the aggressor who acted unlawfully

in this situation and decided to credit Sutton’s incredible

statements. According to Harvard, Cesnalis repeatedly

referred to Harvard as “boy” while demanding that Harvard

complete a Breathalyzer test. App. 46 (“You understand me

boy, I want you to blow into the Breathalyzer.” (emphasis

omitted)). Harvard was 46 years old at the time of the incident.

Because of the long history of “boy” as a slur against Black

25

men, a juror could, under the circumstances, interpret this term

as evidence of racial animus. See Ash v. Tyson Foods, Inc.,

546 U.S. 454, 456 (2006) (noting that use of the term “boy”

was a potential indicator of racial animus). Cesnalis also

insinuated that Harvard had been smoking crack cocaine even

though there is no evidence whatsoever in the record to support

this accusation. A juror could find that this is further evidence

of racial animus based on the historical associations of crack

cocaine use with Black communities. See Richard Dvorak,

Cracking the Code: “De-Coding” Colorblind Slurs During the

Congressional Crack Cocaine Debates, 5 MICH. J. RACE & L.

611, 648 (2000) (discussing how this association with Black

communities contributed to the controversial federal crack

cocaine legislation of the 1980s). This underlying racial

animus is further corroborated by Cesnalis’s affidavit of

probable cause, in which he consistently referred to Sutton as

“the victim.” Cesnalis’s deliberate omissions from the

affidavit and potentially falsified information suggesting that

Harvard had a prior criminal history all lend support to

Harvard’s allegation that Cesnalis’s actions were motivated by

a prohibited reason, in this case, racial animus.

A juror could find that Cesnalis’s racial slurs against

Harvard, combined with his unreasonable decision to credit

Sutton’s testimony and omit vital exculpatory facts from the

affidavit, indicate that Cesnalis’s actions were racially

motivated. Accordingly, we will vacate the District Court’s

grant of summary judgment for Cesnalis as to Harvard’s Equal

Protection claim.8

8

Harvard has not demonstrated that Beatty was involved in this

disparate treatment. Thus, we will affirm the District Court’s

26

E. Reckless Investigation

Harvard argues that the District Court erred in granting

summary judgment for the defendants on the reckless

investigation claim. Harvard asserts that his rights under the

Fourteenth Amendment were violated because the officers

intentionally chose not to investigate Sutton’s violent attack

against Harvard.

We have never recognized an independent due process

right to be free from a reckless investigation. See Geness v.

Cox, 902 F.3d 344, 354 n.5 (3d Cir. 2018) (expressing “doubts”

as to the viability of a reckless investigation claim). We have

also held that, even if such a claim were cognizable, it “could

only arise under the Fourth Amendment.” Id. We will

therefore affirm the District Court’s grant of summary

judgment for the defendants as to the reckless investigation

claim.9

F. Civil Conspiracy

grant of summary judgment for Beatty on the Equal Protection

claim.

9

Even if Harvard had brought the reckless investigation claim

under the Fourth Amendment, the officers would nevertheless

be entitled to qualified immunity because this right was not

clearly established at the time of the investigation. See id.

(“Whatever doubts we may harbor as to the viability of such a

[reckless investigation] claim, however, we have no occasion

to resolve them today. First, no such constitutional right was

‘clearly established’ at the relevant time, as required to

overcome qualified immunity.” (citations omitted)).

27

Harvard argues that the District Court erred in granting

summary judgment for the defendants for his civil conspiracy

claim. “To prevail on a conspiracy claim under § 1983, a

plaintiff must prove that persons acting under color of state law

reached an understanding to deprive him of his constitutional

rights.” Jutrowski v. Township of Riverdale, 904 F.3d 280,

293-94 (3d Cir. 2018) (internal quotation marks and citation

omitted). This requires that the state actors took “concerted

action” based on an “agreement” to deprive the plaintiff of his

constitutional rights, and that there was an actual underlying

constitutional violation of the plaintiff’s rights. Id. at 295.

The District Court granted summary judgment because

it determined there was no underlying violation of Harvard’s

constitutional rights. Although we conclude that a jury could

determine that Harvard’s constitutional rights were violated,

Harvard has not demonstrated that Cesnalis and Beatty agreed

to deprive him of his constitutional rights. According to

Harvard, Cesnalis’s suspicion that Harvard was under the

influence led Beatty to subject Harvard to a series of tests to

confirm that suspicion. But, as discussed above, Beatty’s

involvement in this case was limited to performing the DRE

and his evaluation was based on inaccurate and incomplete

information supplied by Cesnalis. There is no indication that

Beatty knew about Cesnalis’s misrepresentations or that he

entered into an understanding with Cesnalis to falsely conclude

that Harvard was under the influence.10 Accordingly, we will

10

Harvard also argues that Beatty furthered the conspiracy

when he “contrived a story” that Mazzetti was a prostitute and

that she was trying to steal Harvard’s money. Appellant Br.

35. Even if Beatty did fabricate this story, this took place after

Harvard’s criminal case was terminated and the charges were

dismissed. Therefore, it does not support Harvard’s claim that

28

affirm the District Court’s grant of summary judgment for the

defendants as to the civil conspiracy claim.

IV. CONCLUSION

For the foregoing reasons, we will vacate the District

Court’s grant of summary judgment for Cesnalis as to the false

arrest, false imprisonment, malicious prosecution and Equal

Protection claims. We will affirm the District Court’s grant of

summary judgment for Cesnalis on the reckless investigation

and civil conspiracy claims. We will affirm the District

Court’s grant of summary judgment for Beatty on all claims.

Cesnalis and Beatty conspired to deprive him of his

constitutional rights.

29