NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2162
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RICHARD COLLINS,
Appellant
v.
THE CITY OF PHILADELPHIA, LAW DEPARTMENT;
POLICE OFFICER MICHAEL BERKERY, BADGE #9464;
POLICE SERGEANT EDWARD PISAREK, BADGE #348;
POLICE DETECTIVE KEITH SCOTT, BADGE #7603
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-16-cv-0567)
Honorable Eduardo C. Robreno, District Judge
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Submitted under Third Circuit L.A.R. 34.1(a)
February 13, 2019
BEFORE: HARDIMAN, SCIRICA, and COWEN, Circuit Judges
(Filed: April 18, 2019)
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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.
COWEN, Circuit Judge.
Richard Collins appeals from the order and judgment of the United States District
Court for the Eastern District of Pennsylvania granting the motion for summary judgment
filed by Police Officer Michael Berkery, Police Sergeant Edward Pisarek, and Police
Detective Keith Scott (“Appellees”). We will affirm.
I.
On August 8, 2016, Collins filed a writ of summons with the Philadelphia Court of
Common Pleas, naming the City of Philadelphia and Appellees as Defendants. He
subsequently filed a complaint on October 6, 2016, and Appellees then removed this
action to the District Court. The complaint included four counts, entitled respectively:
(1) “42 U.S.C.A. § 1983;” (2) “FALSE IMPRISONMENT;” (3) “VIOLATIONS OF
THE COMMONWEALTH OF PENNSYLVANIA CONSTITUTION CIVIL RIGHTS;”
and (4) “SUPPLEMENTAL CLAIMS AGAINST THE CITY OF PHILADELPHIA.”
(A25-A26 (emphasis omitted).) The City of Philadelphia filed an unopposed motion to
dismiss, which the District Court granted. Appellees subsequently filed a motion for
summary judgment. The District Court granted their motion as well.
According to the District Court, “the Complaint contains claims for false arrest
and false imprisonment under § 1983, as well as violations of the Pennsylvania
Constitution.” Collins v. City of Philadelphia, CIVIL ACTION NO. 16-5671, 2018 WL
1980079, at *2 (E.D. Pa. Apr. 27, 2018). Applying the applicable two-year statute of
limitations, the District Court explained that these claims arose from arrest on March 23,
2013. “[B]ecause Collins had a preliminary hearing after his arrest, the statute of
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limitations for his false arrest and false imprisonment claims began to run on the date of
his preliminary hearing [on January 14, 2014]. . . . For that reason, any claims that
Collins may have had for false arrest or false imprisonment would have accrued—at the
latest—on January 14, 2014.” Id. The District Court also determined that no private
cause of action exists for violations of the Pennsylvania Constitution.
II.
Collins argues that Count One of his complaint stated a claim for malicious
prosecution under § 1983. 1 It is undisputed that the statute of limitations for a malicious
prosecution cause of action begins to run when the criminal proceeding is terminated,
which allegedly occurred on August 7, 2016. See, e.g., Heck v. Humphrey, 512 U.S.
477, 489 (1994). We nevertheless agree with Appellees that Collins’s complaint did not
include this purported claim and that, even if it did, Collins did not raise this issue before
the District Court.
Under the circumstances, Collins’s complaint failed to give Appellees fair notice
of any claim premised on a malicious prosecution theory of liability. See, e.g., Phillips v.
Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Collins acknowledges that a claim
of malicious prosecution implicates the filing of a criminal proceeding. See, e.g.,
Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007). In his First Count, Collins did not
1
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1367. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary
review over a grant of summary judgment. See, e.g., United States ex rel. Doe v. Heart
Solution, PC, --- F.3d ---, 2019 WL 1187217, at *2 (3d Cir. 2019). “Under this standard,
a court will ‘grant summary judgment if the movant shows there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.’” Id.
(quoting Fed. R. Civ. P. 56(a)).
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allege the wrongful filing of a criminal proceeding. On the contrary, he was focused on
his arrest, alleging that “Plaintiff was arrested without probable cause” and that
Defendants thereby deprived him of clearly established constitutional rights including
“freedom from unreasonable seizure of his person,” “freedom from arrest without
probable cause,” and “freedom of speech.” (A25.) While he may have referred to the
legal fees he incurred in defending himself against the criminal prosecution as well as his
subsequent detention during the course of this proceeding as injuries that resulted from
“the acts of the defendant police officers” (id.), Collins did not identify the criminal
proceeding as itself giving rise to any cause of action. Likewise, Collins’s other three
counts did not expressly reference the existence (or outcome) of any criminal proceeding.
“Absent exceptional circumstances, this Court will not consider issues raised for
the first time on appeal.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 261 (3d Cir.
2009) (quoting Del. Nation v. Pennsylvania, 446 F.3d 510, 416 (3d Cir. 2006)). It is also
uncontested that Collins never raised the malicious prosecution issue before the District
Court, even though Appellees relied on the statute of limitations for false arrest and false
imprisonment. Appellees acknowledge that the opposition to their summary judgment
motion included one glancing reference to this theory in an introductory statement
(“Plaintiff’s complaint consists of claims under 42 U.S.C. section 1983 for false arrest
and malicious prosecution.” (SA27)) and a citation in the middle of a false arrest
discussion “to a legal source stating that law enforcement officers are required to
promptly deliver exculpatory information to the prosecutor (SA32)” (Appellees’ Brief at
10). Nevertheless, Collins does not take issue with Appellees’ characterization of these
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assertions as perfunctory and vague, respectively. Under the circumstances, the District
Court appropriately reasoned that Collins only asserted false arrest and false
imprisonment claims and properly distinguished such theories of liability from a claim
for malicious prosecution. See, e.g., Collins, 2018 WL 1980079, at *2 (“Accordingly,
the Heck rule is not applicable to claims for false arrest or false imprisonment, because
those claims (unlike malicious prosecution) do not involve a challenge to legal
proceedings—which is the hallmark of an action for malicious prosecution.” (citing
Wallace v. Kato, 549 U.S. 384, 394 (2007))).
III.
For the foregoing reasons, we will affirm the order and judgment of the District
Court.
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