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.
No. 05-5029.
No. 05-5139.
United States Court of Appeals, Third Circuit.
Argued November 9, 2006.
Filed February 14, 2007.
Martin Stanshine (argued), Stanshine & Sigal, Philadelphia, PA, 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, Harrisburg, PA, Attorneys for Appellant in No. 05-5139 and Appellee in No. 05-5029.
Mia Carpiniello, City of Philadelphia, Law Department, Philadelphia, PA, Attorney for City of Philadelphia.
Before SLOVITER, CHAGARES, and GREENBERG, Circuit Judges.
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,
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,
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 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,
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,
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 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,
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,
On Johnson's appeal challenging the dismissal of his false arrest charges, we affirmed in part and reversed in part. Johnson,
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 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,
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.,
IV. DISCUSSION
A. Malicious Prosecution
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,
In Wright,
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,
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,
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,
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,"
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,
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,
B. State Law Claims
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, ___ U.S. ___, ___,
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,
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.
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.
Notes:
Notes
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 inJohnson v. Knorr, Civ. No. 01-3418,
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
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
In the circumstances, we are not treating the unidentified officers as parties to this litigation
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
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
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 ....
The deprivation of liberty requirement is applicable where the malicious prosecution claim is under the Fourth Amendment. Seeinfra n.14. 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, ___ U.S. ___,
We observe that we adjudicated the issue relating to malicious prosecution inWright 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,
The plaintiff inPosr asserted a malicious prosecution cause of action against only one of the defendants.
Rivera-Marcano was concerned with the law of Puerto Rico
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
Though we are reversing the district court we nevertheless praise it for its faithful adherence to our precedent inWright. After all, the court attempted to follow Wright even though it thought that applying Wright would lead to an absurd result.
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." SeeEstate of Smith,
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
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."