NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3951
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KALILAH BRANTLEY,
Appellant
v.
KEYE A. WYSOCKI, Individually and in his capacity as Corporal for the
Pennsylvania State Police; KEITH HAGAN, Individually and in his capacity
as trooper for the Pennsylvania State Police; RENEE BURROWS, Individually
and in her official capacity as shift manager for American Airlines Group, Inc.;
AMERICAN AIRLINES GROUP INC, S/I/I/T US Airways Group, Inc.;
JOHN DOES 1-10
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(E.D. Pa. No. 2-14-cv-04185)
District Judge: Honorable Mark A. Kearney
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Submitted Under Third Circuit L.A.R. 34.1(a)
September 16, 2016
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Before: CHAGARES, GREENAWAY, JR. and RESTREPO, Circuit Judges.
(Filed: October 26, 2016)
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OPINION*
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.
Appellant Kalilah Brantley filed this civil rights action under 42 U.S.C. § 1983.
Brantley alleges two claims against Appellee Pennsylvania State Police Corporal Keye
Wysocki1—malicious prosecution in violation of the Fourth Amendment and retaliatory
prosecution in violation of her First Amendment right to free speech. The District Court
dismissed the malicious prosecution claim on Rule 12(b)(6) grounds and granted
summary judgment for Wysocki on the First Amendment claim on qualified immunity
grounds.2 We will affirm.
I
Brantley worked for a private employer at the Philadelphia International Airport,
where she was supervised by Rene Burrows. Around Christmas 2010, the two had a
dispute over mandatory overtime. Brantley alleged that Burrows was violating union
overtime policy. Burrows denied this. Burrows, furthermore, believed that Brantley had
committed a workplace infraction by clocking out of a mandatory overtime shift without
authorization.
On December 30, 2010, Brantley, Burrows, a union representative and another
employee held a heated “coaching” meeting in an airport conference room to discuss
Brantley’s alleged infraction. App. 548. Brantley’s cell phone was on the table during
1
Brantley previously raised claims against other defendants dismissed by the
District Court. Her appeal is limited to her claims against Wysocki.
2
Brantley also alleged a malicious prosecution claim under Pennsylvania state
law, but concedes that this claim is barred by Pennsylvania’s sovereign immunity statute,
1 Pa. Cons. Stat. § 2310. See also 42 Pa. Cons. Stat. § 8522 (exceptions to sovereign
immunity inapplicable).
2
the meeting. Midway through the meeting, Burrows became suspicious that Brantley was
recording the meeting on her cell phone. Burrows confronted Brantley, who admitted
that she was recording.
Sometime after the December 30, 2010 meeting, Brantley posted a public letter in
an employee break room criticizing Burrows. Burrows was admittedly “disgusted” by
the letter. App. 246.
Burrows spoke with her husband, a police officer in New Jersey, and with a
corporate security officer. Based upon these conversations, she concluded that Brantley
had violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act
(“Wiretap Act”), 18 Pa. Cons. Stat. § 5703. Burrows enlisted the aid of Appellee
Wysocki, who often worked at the airport. Burrows told Wysocki that Brantley had
illegally recorded the “coaching” meeting.
On January 18, 2011, Wysocki accompanied Burrows to a Philadelphia Police
Department station inside the airport, where Burrows filed a complaint against Brantley.
The police, however, brushed off Burrows by telling her to obtain a copy of the recording
herself. Burrows told Wysocki, who thought the officer who took her complaint was
being “lazy.” App. 307, 309. Wysocki began to investigate Burrows’ complaint himself,
with permission from his supervisor and a deputy district attorney.
On February 1, 2011, Wysocki interviewed Burrows at the airport. Burrows told
Wysocki that Brantley recorded the “coaching” meeting without her knowledge. She told
him that she ended the meeting as soon as she learned that Brantley was recording it. She
also told him that she reported “the possible recording” to a supervisor. App. 534.
3
On February 8, 2011, Wysocki confronted Brantley at work and demanded her cell
phone. Wysocki admittedly told Brantley that if she did not give him the phone, he
would “physically take it from [her] hand.” App. 328. Brantley complied. Wysocki
escorted her into a break room where he copied the recording onto his own phone.
Brantley admitted to Wysocki that she had recorded Burrows without her knowledge or
consent, but maintained that this was not illegal or against company policy.
Wysocki personally signed a criminal complaint, charging Brantley with a
Wiretap Act violation. Brantley received a summons by mail and was prosecuted in state
court. She filed a suppression motion. The trial court granted the motion and the
Superior Court affirmed on interlocutory appeal. Commonwealth v. Brantley, No. 376
EDA 2012, 2013 WL 11288850 (Pa. Super. Ct. Jan. 11, 2013). The Commonwealth
nolle prossed the case.
This civil rights action followed. The District Court dismissed Brantley’s Fourth
Amendment malicious prosecution claim under Federal Rule of Civil Procedure 12(b)(6).
The District Court granted summary judgment for Wysocki on the First Amendment
retaliatory prosecution claim on qualified immunity grounds.
II
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review over the grant of a motion to dismiss under Rule
12(b)(6). Kaymark v. Bank of Am., 783 F.3d 168, 174 (3d Cir. 2015). We accept as true
all well-pled factual allegations and construe all inferences in the light most favorable to
4
plaintiff. Id. We also exercise plenary review over a grant of a motion for summary
judgment. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007). We will affirm 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). We may affirm on any grounds supported by the
record. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc).
III
A
The District Court dismissed Brantley’s Fourth Amendment malicious prosecution
claim under Rule 12(b)(6). Brantley’s notice of appeal does not specify that she is
appealing this order. However, she argues the merits of her Fourth Amendment
malicious prosecution claim in her brief. Therefore, we must first address the scope of
our jurisdiction.
Rule 3(c) of the Federal Rules of Appellate Procedure requires that a notice of
appeal “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P.
3(c)(1)(B). Nevertheless, we construe notices of appeal liberally. Polonski v. Trump Taj
Mahal Assocs., 137 F.3d 139, 144 (3d Cir. 1998). We have repeatedly recognized an
exception to Rule 3 that allows us to “review earlier non-final orders not specified in the
notice of appeal where (1) there is a connection between the specified and unspecified
order; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing
party is not prejudiced and has a full opportunity to brief the issues.” Gen. Motors Corp.
v. New A.C. Chevrolet, Inc., 263 F.3d 296, 311 n.3 (3d Cir. 2001); see also Polonski, 137
5
F.3d at 144. As these requirements are met here, we will review the District Court’s
order dismissing Brantley’s Fourth Amendment malicious prosecution claim.
A Fourth Amendment malicious prosecution claim requires a plaintiff to plead
these elements:
(1) the defendant[] initiated a criminal proceeding;
(2) the criminal proceeding ended in plaintiff’s favor;
(3) the proceeding was initiated 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.
Kossler, 564 F.3d at 186 (quotation marks omitted) (quoting Estate of Smith v. Marasco,
318 F.3d 497, 521 (3d Cir. 2003)). The District Court properly dismissed Brantley’s
Fourth Amendment malicious prosecution claim because she did not allege the fifth
element, a deprivation of liberty.
“[P]retrial custody and some onerous types of pretrial, non-custodial restrictions
constitute a Fourth Amendment seizure” for a malicious prosecution claim. Black v.
Montgomery Cty., No. 15-3399, 2016 WL 4525230, at *6 (3d Cir. Aug. 30, 2016)
(quoting DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005)). To
determine whether there was a deprivation of liberty, we may consider, inter alia,
whether a plaintiff was incarcerated, was detained in the police station, posted bond, was
required to contact pretrial services, was prohibited from travelling or was required to
travel to attend court. Id. at *6-7.
Brantley’s Second Amended Complaint alleges none of these facts. Rather, she
alleges only that she “received a police summons by mail” and that the trial court held a
6
two-day suppression hearing. App. 50. These facts alone do not amount to a deprivation
of liberty. DiBella, 407 F.3d at 603. Thus, the District Court properly dismissed the
Fourth Amendment malicious prosecution claim.
B
Brantley also raises a claim of retaliatory prosecution in violation of her First
Amendment right to free speech. The District Court granted summary judgment for
Wysocki on qualified immunity grounds. The District Court found that there was a
constitutional violation, but that the right was not clearly established. We will affirm on
alternative grounds, finding no constitutional violation and not reaching the question
whether the right was clearly established.
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).
“A Government official’s conduct violates clearly established law when, at the time of
the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is doing violates that right.’” Id.
at 741 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
7
As is within our discretion, we address the first prong of the qualified immunity
analysis, whether there was a constitutional violation. Pearson v. Callahan, 555 U.S.
223, 242 (2009). This is the most “fair and efficient disposition” of this case. Id.3
“[A]s a general matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including criminal prosecutions, for
speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006) (citation omitted). To
establish a First Amendment retaliation claim, a plaintiff “‘must prove (1) that [s]he
engaged in constitutionally-protected activity; (2) that the government responded with
retaliation; and (3) that the protected activity caused the retaliation.’” George v. Rehiel,
738 F.3d 562, 585 (3d Cir. 2013) (quoting Eichenlaub v. Twp. of Indiana, 385 F.3d 274,
282 (3d Cir. 2004)). Wysocki argues that summary judgment was proper because
Brantley failed to prove causation.
Causation in this context is defined as “but-for causation, without which the
adverse action would not have been taken.” Hartman, 547 U.S. at 260. Ordinarily,
“upon a prima facie showing of retaliatory harm, the burden shifts to the defendant
official to demonstrate that even without the impetus to retaliate he would have taken the
action complained of (such as firing the employee).” Id. However, under Hartman,
where the plaintiff alleges that the particular act of retaliation is criminal prosecution,
causation requires a special method of proof—the plaintiff must plead and prove the
absence of probable cause. Id. at 265-66. This requirement applies whether the
3
For reasons of constitutional avoidance, we will often begin by determining
whether a right was clearly established, although beginning with the constitutional
question was more efficient here. Camreta v. Greene, 563 U.S. 692, 705-07 (2011).
8
defendant induced another person to file charges, as in Hartman, or initiated the
prosecution himself, as Wysocki did. See Miller v. Mitchell, 598 F.3d 139, 154 (3d Cir.
2010).
In its analysis, the District Court did not address the Hartman requirement that
Brantley prove the absence of probable cause. Rather, the District Court concluded that a
jury could find causation based upon the “temporal proximity” between Brantley’s
“protests” regarding union policy and her criminal prosecution. App. 11. We exercise
our discretion to apply Hartman for the first time on appeal. Singleton v. Wulff, 428 U.S.
106, 121 (1976). We turn then to the ultimate issue—whether Brantley has proven for
summary judgment purposes that Wysocki arrested her without probable cause.
“[P]robable cause to arrest exists 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 applying “this practical
and common-sensical standard, we have consistently looked to the totality of the
circumstances.” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013). We “reject[] rigid
rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-
considered approach.” Id. (citing Illinois v. Gates, 462 U.S. 213 (1983)).
The existence of probable case is ordinarily a factual issue. Halsey v. Pfeiffer, 750
F.3d 273, 300 (3d Cir. 2014). Summary judgment is not appropriate if there are factual
disputes “bearing on the issue or if ‘reasonable minds could differ’” as to whether there
was probable cause. Id. (citation omitted). Conversely, we may grant summary
9
judgment if “no genuine issue of material fact exists as to whether” there was probable
cause. Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).
In Brantley’s case, the statute at issue is Section 5703 of the Wiretap Act, which
provides: “a person is guilty of a felony of the third degree if he: . . . intentionally
intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to
intercept any wire, electronic or oral communication . . . .” 18 Pa. Cons. Stat. § 5703(1).
An oral communication is “[a]ny oral communication uttered by a person possessing an
expectation that such communication is not subject to interception under circumstances
justifying such expectation. The term does not include any electronic communication.”
18 Pa. Cons. Stat. § 5702.
Under Pennsylvania law, a Wiretap Act violation for interception of an oral
communication requires proof:
(1) that [the claimant] engaged in a communication; (2) that
[s]he possessed an expectation that the communication would
not be intercepted; (3) that [her] expectation was justifiable
under the circumstances; and (4) that the defendant attempted
to, or successfully intercepted the communication, or
encouraged another to do so.
Kelly v. Carlisle, 622 F.3d 248, 257 (3d Cir. 2010) (quoting Agnew v. Dupler, 717 A.2d
519, 522 (Pa. 1998)).
We examine the expectation of non-interception “in accordance with the principles
surrounding the right of privacy.” Agnew, 717 A.2d at 523. We ask whether the claimant
had an expectation of privacy and “whether that expectation is one that society is
prepared to recognize as reasonable.” Id. The Pennsylvania Supreme Court has relied
10
upon several facts “belying” a justifiable expectation of non-interception. Kelly, 622
F.3d at 258. These include that “‘oral interrogations of suspects by the police are
generally recorded’”; that a participant is taking notes; that third parties are present and
that others can overhear the conversation. Id. at 258 (quoting Commonwealth v. Henlen,
564 A.2d 905, 906 (Pa. 1989)); id. at 257 (citing Agnew, 717 A.2d at 524).
In the instant case, there was probable cause to conclude that Brantley violated the
Wiretap Act. Burrows told Wysocki that Brantley recorded the “coaching” meeting
without her knowledge. She told him that she ended the meeting immediately after she
learned that Brantley was recording it.4 She also told him that she reported the recording
to a supervisor. There is no evidence that other “coaching” meetings at Brantley’s
private employer were ever recorded. Wysocki also conducted a separate interview of
Brantley, who admitted that she recorded the meeting without the knowledge or consent
of Burrows. In addition, Wysocki obtained a copy of the recording.
In response, Brantley contends that there was no probable cause because Wysocki
lacked evidence that Burrows had a “justifiable” expectation of non-interception. Kelly,
622 F.3d at 257. She points out that other individuals were at the “coaching” meeting
and that her cell phone was visible on the table. Although Brantley does not argue this
point, we also acknowledge that Brantley was taking notes. These facts could describe
4
There is some evidence that the meeting continued after Brantley told Burrows
that she was recording. However, this factual dispute is not material to the probable
cause determination because the information was not available to Wysocki. See Harris,
133 S. Ct. at 1055. Wysocki interviewed Burrows, who told him that the meeting ended
immediately after Brantley admitted to recording it. Wysocki also interviewed Brantley,
who did not contradict this statement.
11
many workplace meetings. Alone, they do not undermine our conclusion that there was
probable cause to arrest Brantley for recording the “coaching” meeting. We emphasize
that this arrest took place in 2010, amidst the recording technology of that day. We also
emphasize that “we are concerned here only with the question of probable cause, not
[Brantley]’s guilt or innocence.” Wright v. City of Phila., 409 F.3d 595, 603 (3d Cir.
2005). Thus, the District Court properly granted summary judgment for Wysocki on the
First Amendment retaliatory prosecution claim.
IV
For the foregoing reasons, the judgment of the District Court is affirmed.
12