NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-2570
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RASHEED WATERS,
Appellant
v.
CHELTENHAM TOWNSHIP d/b/a CHELTENHAM TOWNSHIP POLICE
DEPARTMENT; JOHN BARR, Individually and in his official capacity
as Detective for CTPD
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 2-16-cv-00216)
District Judge: Honorable Timothy J. Savage
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 16, 2017
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Before: GREENAWAY, JR., SHWARTZ, and GREENBERG, Circuit Judges.
(Filed: July18, 2017)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Rasheed Waters sat in jail for more than a year awaiting trial for a crime he did not
commit. He had a verifiable alibi, supported by video surveillance, which he claims the
investigating officer ignored. At trial, the trial judge reviewed the footage of the video
surveillance and dismissed the criminal charges. Waters, almost two years later, brought
this malicious prosecution action pursuant to 42 U.S.C. § 1983 and Pennsylvania
common law against the municipality and the officer that investigated the crime.
Waters initially asserted four claims, but after he amended his complaint, only one
claim remained: malicious prosecution. The District Court dismissed the claim because
Waters failed to plead that the criminal proceeding was initiated without probable cause,
a necessary element in a malicious prosecution claim. We agree, and therefore, will
affirm the District Court.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
In August 2012, Waters was apartment-sitting for his mother, who was away on
vacation with her fiancé. The fiancé died during the vacation; his daughter, in turn, went
to Waters’s mother’s apartment ostensibly to collect his belongings. Waters soon
learned—from his mother and the decedent’s sister—that the daughter was not supposed
to remove those items. So he subsequently called the police to report the items missing.
About one month later, Detective John Barr of the Cheltenham Township (the
“Township”) Police Department called Waters and questioned him about one of the
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missing items—a firearm. Waters told Barr that he had already told the police everything
he knew, and that if Barr wanted to learn more, he should question the decedent’s
daughter. But Barr persisted, questioning Waters as if he were a suspect. Waters became
frustrated, shouted at Barr, and told him not to call him again.
Another month passed when, while driving through Upper Darby, Pennsylvania,
Waters was pulled over by the police. The officers told Waters that they were arresting
him pursuant to a warrant issued in Montgomery County, Pennsylvania, where the
Township is located. The Upper Darby police held Waters at the station for hours
without telling him why he was arrested.
Waters was transferred to the Township shortly after midnight. At some point
while Waters was sitting in his holding cell, Barr appeared and told him, “[f]or someone
being detained for what you’re being detained for, you seem awfully calm.” App. 4 ¶ 16.
Barr went on to say that he had already located the missing firearm, and that Waters was
being held for three counts of burglary. Waters asked to speak with an attorney. Barr
said nothing and walked away.
Waters was transferred to the Montgomery County Correction Facility the next
day. Waters received the substance of the burglary charges against him and the grounds
for the arrest warrant. The basis for probable cause was a single eyewitness, who would
prove unreliable at trial. Waters soon recalled, and told Barr, that at the time and date of
the alleged burglaries, he was out shopping, and that the stores he was shopping at had
surveillance systems that could confirm his presence. Barr ignored the alibi.
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Waters spoke with his trial attorney, who, by the end of the week, obtained the
surveillance footage that confirmed Waters’s alibi. The trial attorney told Barr, but Barr
again ignored the alibi.
At trial, Waters’s attorney presented the trial judge with the surveillance footage
and an employee from one of the stores to authenticate the footage. The trial court judge
then dismissed the case and admonished the Defendants for bringing it forward. Waters
was finally released on January 27, 2014, about sixteen months after he was arrested.
B. Procedural History
Waters filed the instant § 1983 action in federal district court alleging malicious
prosecution, false arrest, false imprisonment, and Monell claims.1 The Township and
Barr (the “Defendants”) then moved to dismiss the false arrest and false imprisonment
claims as time barred, and moved for a more definite statement as to the malicious
prosecution claim.2 Waters, in response, filed an amended complaint (“Amended
1
While he was in custody, Waters brought a separate pro se § 1983 action.
Complaint, Waters v. Barr, No. 13-cv-672 (E.D. Pa. Mar. 8, 2013), ECF No. 7. The
District Court stayed the proceeding until Waters informed the Court that his criminal
case had been resolved. Order, Waters v. Barr, No. 13-cv-672 (E.D. Pa. Mar. 13, 2013),
ECF No. 8. The District Court ended up dismissing the pro se action for failure to
prosecute because Waters never contacted the District Court after his release. Order,
Waters v. Barr, No. 13-cv-672 (E.D. Pa. Mar. 13, 2013), ECF No. 11.
2
Waters alleges that his malicious prosecution claim is actionable through § 1983
and Pennsylvania common law.
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Complaint”) that contained only the malicious prosecution claim, with some additional
factual allegations.3 The Defendants answered and moved for judgment on the pleadings.
The District Court granted the Defendants’ motion, finding that the “criminal
proceedings were initiated by an arrest warrant based upon an eyewitness identification
of Waters as the perpetrator.” Waters v. Cheltenham Twp., No. 16-216, 2016 WL
1594951, at *3 (E.D. Pa. Apr. 20, 2016). And “[t]here [were] no allegations that Barr
knowingly or recklessly made false statements or omissions in applying for the warrant.”
Id. Thus, Waters failed to “establish an essential element of a malicious prosecution
claim—lack of probable cause.” Id. This timely appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of a district court’s order granting a Federal Rule of Civil Procedure
12(c) motion for judgment on the pleadings is plenary. See, e.g., Caprio v. Healthcare
Revenue Recovery Grp., LLC, 709 F.3d 142, 146 (3d Cir. 2013). Because this Rule 12(c)
motion is based on the theory that the plaintiff failed to state a claim, we will apply the
same standard that we apply to a Rule 12(b)(6) motion to dismiss. Id. at 146–47. And
“[w]e [will] grant the motion only if, viewing all the facts in the light most favorable to
the nonmoving party, no material [dispute] of fact remains and the moving party is
3
The District Court denied Defendants’ motion to dismiss as moot, presumably in
light of Waters filing the Amended Complaint.
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entitled to judgment as a matter of law.” Knepper v. Rite Aid Corp., 675 F.3d 249, 257
(3d Cir. 2012).
III. ANALYSIS
For Waters to prevail on a malicious prosecution under § 1983, he must prove five
elements:
(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding
ended in plaintiff’s favor; (3) the proceeding was initiated without 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).4 The District Court ruled
that Waters failed to establish the third element—the proceeding was initiated without
probable cause.5 We agree.
Here, Waters was arrested pursuant to a warrant, which generally establishes the
proceeding was initiated with probable cause. But “an arrest warrant issued by a
magistrate or judge does not, in itself, shelter an officer from liability for false arrest.”
Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000). Where a plaintiff challenges the basis
4
The first four elements are the same under Pennsylvania common law. See
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791–92 (3d Cir. 2000) (observing that a
plaintiff alleging a § 1983 claim for malicious prosecution must show a Fourth
Amendment violation, in addition to the four elements of common law malicious
prosecution).
5
We note, but do not address, Defendants’ other arguments: that Waters cannot
show that Barr “initiated the proceedings,” Appellees’ Br. at 11; that Barr is entitled to
qualified immunity, id. at 21–23; and that Waters cannot establish a valid Monnell claim
against the Township, id. at 23–25.
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for probable cause, as Waters does, we must determine whether the officer “knowingly
and deliberately, or with a reckless disregard for the truth, made false statements or
omissions that create a falsehood in applying for a warrant.” Id. If so, we then determine
whether “such statements or omissions are material, or necessary, to the finding of
probable cause.” Id. at 787.
Waters does not claim that Barr made any material false statements or omissions.
Instead, Waters attacks the basis for probable cause four different ways, but none of them
are sufficient to support his malicious prosecution claim.
First, Waters alleges that the eyewitness upon whom the police relied was
unreliable, and thus, his identification could not have formed the basis for probable cause.
He points to cases where courts reviewed the credibility of witnesses that law
enforcement relied on to obtain search warrants. These cases are inapposite because it
was reasonable for the police to believe the eyewitness was telling the truth when they
initiated the prosecution. See Sharrar v. Felsing, 128 F.3d 810, 818–19 (3d Cir. 1997)
(“When an officer has received his information from some person—normally the putative
victim or an eye witness[sic]—who it seems reasonable to believe is telling the truth, he
has probable cause.” (quoting Grimm v. Churchill, 932 F.2d 674, 675 (7th Cir. 1991))),
abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007).
Second, Waters asserts that the police “could (and should) have easily obtained the
video evidence on their own without any assistance from Plaintiff’s criminal defense
attorney.” App. 5 ¶ 22. However, at the time Barr applied for the arrest warrant, he was
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unaware of this footage; he had no reason to know that Waters was out shopping, let
alone that there was footage to confirm Waters’s alibi.
And even though the footage ultimately led to the withdrawal of criminal charges,
we still determine whether the proceeding was initiated without probable cause “based on
the information available to officers at the time the [arrest] warrant was sought.”
Marasco, 318 F.3d at 522 (emphasis added). So once Barr had a reasonable basis to
believe there was probable cause, he was not constitutionally required to “investigate
independently every claim of innocence,” such as “mistaken identity.” Baker v.
McCollan, 443 U.S. 137, 146 (1979). Therefore, the exculpatory footage that Waters
provided the police post-warrant application does not establish the third element of his
malicious prosecution claim.
Third, Waters claims the police erred by not reviewing the exculpatory video after
his attorney purportedly gave Barr the video. See Appellant’s Br. at 21 (“An officer is
not free to disregard plainly exculpatory evidence even if substantial inculpatory
evidence (standing alone) suggest that probable cause exists.”). He cites two cases for
support: Burke v. Town Of Walpole, 405 F.3d 66 (1st Cir. 2005) and Kuehl v. Burtis, 173
F.3d 646 (8th Cir. 1999). Both are distinguishable.
In Burke, a police officer that was preparing a warrant application intentionally or
recklessly withheld exculpatory evidence; thus, for purposes of summary judgment
analysis, the plaintiff proffered evidence to support a finding that he was arrested without
probable cause. Burke, 405 F.3d at 83–84. But unlike what Waters alleges here, the
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officer in Burke knew of the exculpatory evidence at the time of the warrant application.
Id. at 84.
Then there is Kuehl, where the Eighth Circuit found that a police officer “ignored
plainly exculpatory evidence that negated the intent required for simple assault.” 173
F.3d at 651. The Court faulted the police officer for ignoring (1) the plaintiff’s
explanation for why she shoved the purported victim; (2) the plaintiff’s sizeable bruise
over her left eye (caused by a punch from the purported victim); and (3) the testimony of
another eyewitness that would have corroborated the plaintiff’s account of what
happened before the officer arrested the plaintiff. Id. Again, Waters’s comparison falls
short because the substantial eyewitness testimony in Kuehl was available to the police
officer before he arrested the plaintiff.
Finally, Waters floats a theory for relief that was not spelled out in the Amended
Complaint: prolonged detention in the face of exculpatory evidence. See Appellant’s Br.
at 21 (“Post-arrest, Waters was length[ily] imprisoned awaiting trial notwithstanding the
existence of an exculpatory video.”); id. (“Plaintiff’s expressed innocence via alibi, and
the video supporting that alibi gives rise to a 14th amendment post-arrest claim in
malicious prosecution for unlawful[ly] prolonged detention.”).
This unlawfully prolonged detention theory is distinct from the malicious
prosecution claim that Waters pled and briefed before the District Court. See, e.g., Russo
v. City of Bridgeport, 479 F.3d 196, 209 (2d Cir. 2007) (describing false imprisonment
claim as covered by the Fourth Amendment and sufficiently alleged given “(1) the length
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of time of [plaintiff’s] wrongful incarceration, (2) the ease with which the evidence
exculpating [plaintiff]—which was in the officers’ possession—could have been checked,
and (3) the alleged intentionality of [the investigating officers’] behavior”); Sanders v.
English, 950 F.2d 1152, 1162 (5th Cir. 1992) (describing illegal detention, or false
imprisonment, as a claim where defendant-officer fails to release plaintiff “even after he
knew (or should have known) that [plaintiff] ha[s] been misidentified”).
Because this is a claim that Waters did not raise in the Amended Complaint or in
his brief before the District Court, it is not properly before this Court. See New Jersey v.
United States, 91 F.3d 463, 471 (3d Cir. 1996).
IV. CONCLUSION
For these reasons, we will affirm the District Court’s judgment.
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