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[Plaintiff] claims that [defendant] violated [plaintiff’s] Fourth Amendment rights by initiating the prosecution of [plaintiff] for [describe crime[s]].

To establish this claim of malicious prosecution, [plaintiff] must prove the following [five] things by a preponderance of the evidence:

First: [Defendant] initiated the criminal proceeding against [plaintiff].

Second: [Defendant] lacked probable cause to initiate the proceeding.250

Third: The criminal proceeding ended in [plaintiff’s] favor.

Fourth: [Defendant] acted maliciously or for a purpose other than bringing [plaintiff] to justice.

Fifth: As a consequence of the proceeding, [plaintiff] suffered a significant deprivation of liberty.251

[In this case, the first, third and fifth of these issues are not in dispute: [Defendant] admits that [he/she] initiated the criminal proceeding; and I instruct you that the criminal proceeding ended in [plaintiff’s] favor and that [plaintiff] suffered a deprivation of liberty consistent with the concept of seizure.]252

As to the second element of [plaintiff’s] malicious prosecution claim, [plaintiff] must prove that [defendant] lacked probable cause to initiate the proceeding. To determine whether probable cause existed, you should consider whether the facts and circumstances available to [defendant] would warrant a prudent person in believing that [plaintiff] had committed the crime of [name the crime]. [Define the relevant crime under state law.]

[[Defendant] has pointed out that [plaintiff] was indicted by a grand jury. The indictment establishes that there was probable cause to initiate the proceeding unless [plaintiff] proves by a preponderance of the evidence that the indictment was obtained by fraud, perjury or other corrupt means.]

As to the fourth element of the malicious prosecution claim, [plaintiff] must prove that in initiating the proceeding, [defendant] acted out of spite, or that [defendant] did not [himself/herself] believe that the proceeding was proper, or that [defendant] initiated the proceeding for a purpose unrelated to bringing [plaintiff] to justice.

[Even if you find that [plaintiff] has proven the elements of [plaintiff’s] malicious prosecution claim, [defendant] asserts that [he/she] is not liable on this claim because [plaintiff] was in fact guilty of the offense with which [he/she] was charged. The fact that [plaintiff] was acquitted in the prior criminal case does not bar [defendant] from trying to prove that [plaintiff] was in fact guilty of the offense; a verdict of not guilty in a criminal case only establishes that the government failed to prove guilt beyond a reasonable doubt. If you find that [defendant] has proven by a preponderance of the evidence that [plaintiff] was actually guilty of the offense, then [defendant] is not liable on [plaintiff’s] malicious prosecution claim.]

COMMENT Third Circuit law concerning Section 1983 claims for malicious prosecution is not entirely clear. Prior to the Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994), the Court of Appeals held that the common law elements of malicious prosecution were both necessary and sufficient to state a Section 1983 claim. Post-Albright, those elements are not sufficient, but they are still necessary.

The pre-Albright test. Before 1994, plaintiffs in the Third Circuit could “bring malicious prosecution claims under § 1983 by alleging the common law elements of the tort.” Donahue v. Gavin, 280 F.3d 371, 379 (3d Cir. 2002) (citing Lee v. Mihalich, 847 F.2d 66, 69 70 (3d Cir. 1988)); see also Albright, 510 U.S. at 270 n.4 (plurality opinion) (stating that among the federal courts of appeals, “[t]he most expansive approach is exemplified by the Third Circuit, which holds that the elements of a malicious prosecution action under § 1983 are the same as the common law tort of malicious prosecution”). Typically, a plaintiff was required to prove “(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice.” Donahue, 280 F.3d at 379 (stating test determined by reference to Pennsylvania law); see also Lippay v. Christos, 996 F.2d 1490, 1503 (3d Cir. 1993) (discussing malice element with reference to Pennsylvania law); Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989). The Court of Appeals “assumed that by proving a violation of the common law tort, the plaintiff proved a violation of substantive due process that would support a § 1983 claim for malicious prosecution suit.” Donahue, 280 F.3d at 379.

Albright v. Oliver. In Albright, the plaintiff surrendered to authorities after a warrant was issued for his arrest; he was released on bail, and the charge was later dismissed because it failed to set forth a crime under state law. See Albright, 510 U.S. at 268 (plurality opinion). Albright sued under Section 1983, asserting a “substantive due process [right]... to be free from criminal prosecution except upon probable cause.” Id. at 269. A fractured Court affirmed the dismissal of Albright’s claim. Writing for a four-Justice plurality, Chief Justice Rehnquist explained that “it is the Fourth Amendment, and not substantive due process, under which petitioner Albright's claim must be judged.” Id. at 271. The plurality reasoned that in the field of criminal procedure, “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims.’” Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).253 While conceding that not all the “required incidents of a fundamentally fair trial” flow from the Bill of Rights, the plurality argued that any such incidents not covered by a Bill of Rights provision would arise as a matter of procedural, not substantive, due process. See Albright, 510 U.S. at 273 n.6.

Justice Kennedy, joined by Justice Thomas, concurred in the judgment. He agreed that a claim for arrest without probable cause should be analyzed under the Fourth Amendment. However, Justice Kennedy noted that Albright’s claim focused on malicious prosecution, not unlawful arrest, and he argued that the Court should extend the rule of Parratt v. Taylor, 451 U.S. 527 (1981), to govern claims like Albright’s: Because the relevant state “provides a tort remedy for malicious prosecution,” Justice Kennedy asserted that Albright’s claim should not be cognizable under Section 1983. Albright, 510 U.S. at 285 (Kennedy, J., joined by Thomas, J., concurring in the judgment).

Justice Souter also concurred in the judgment. Though he did not believe that the existence of a relevant Bill of Rights provision necessarily precluded a due process claim, he argued that the Court should exercise “restraint” in recognizing such a due process right: It should not do so absent a substantial violation not redressable under a specific Bill of Rights provision. Albright, 510 U.S. at 286, 288-89 (Souter, J., concurring in the judgment).

Justice Stevens, joined by Justice Blackmun, dissented, arguing that “the initiation of a criminal prosecution... [is] a deprivation of liberty,” and that the process required prior to such a deprivation includes a justifiable finding of probable cause. See id. at 295-97, 300 (Stevens, J., joined by Blackmun, J., dissenting).

The Albright plurality explicitly left open the possibility that a Fourth Amendment violation could ground a malicious prosecution claim. See id. at 275 (“[W]e express no view as to whether petitioner's claim would succeed under the Fourth Amendment.”). Also, because Albright did not assert a procedural due process claim, see id. at 271, Albright appears to leave open the possibility that such a violation could provide the basis for a malicious prosecution claim.

Post-Albright cases.

In Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017), the Court granted certiorari to decide “whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.” The Court, however, decided only that “the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process,” id. at 920, and that “once a trial has occurred, the Fourth Amendment drops out,” so that a challenge to the sufficiency of the evidence to support a conviction and ensuing incarceration is brought under the Due Process Clause. Id. at 920 n.8. It left for the court of appeals on remand to decide the accrual date for such a Fourth Amendment claim, and whether malicious prosecution (with its favorable termination requirement) or false arrest is the better tort analogy. Id. at 920-22.

The Court of Appeals, while recognizing “that Albright commands that claims governed by explicit constitutional text may not be grounded in substantive due process,” has noted that malicious prosecution claims may be grounded in “police conduct that violates the Fourth Amendment, the procedural due process clause or other explicit text of the Constitution.” Torres v. McLaughlin, 163 F.3d 169, 172-73 (3d Cir. 1998).254 Instruction 4.13 is designed for use in cases where the plaintiff premises the malicious prosecution claim on a Fourth Amendment violation; adjustment would be necessary in cases premised on other constitutional violations.

Where the malicious prosecution claim sounds in the Fourth Amendment, the plaintiff “must show ‘some deprivation of liberty consistent with the concept of “seizure.”’” Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (quoting Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995)). In Gallo, the court found a seizure where the plaintiff “had to post a $10,000 bond, he had to attend all court hearings including his trial and arraignment, he was required to contact Pretrial Services on a weekly basis, and he was prohibited from traveling outside New Jersey and Pennsylvania.” Gallo, 161 F.3d at 222; compare DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (acknowledging that “[p]retrial custody and some onerous types of pretrial, non custodial restrictions constitute a Fourth Amendment seizure,” but holding that plaintiffs’ “attendance at trial did not qualify as a Fourth Amendment seizure”)255 with Black v. Montgomery County, 835 F.3d 358, 367-68 (3d Cir. 2016) (holding that a criminal defendant who flew from her home in California to Pennsylvania for her arraignment, spent more than an hour being fingerprinted and photographed at a police station, was required to post unsecured bail of $50,000, travelled between California and Pennsylvania numerous times for pre-trial hearings, and would have forfeited her bond if she failed to appear, was seized). A prisoner who is already lawfully confined is not seized for Fourth Amendment purposes when he is charged with another crime. Curry v. Yachera, 835 F.3d 373, 380 (3d Cir. 2016). The plaintiff also must show that the seizure was unreasonable under the Fourth Amendment; in the malicious prosecution context, that requirement typically will be equivalent to the traditional common law element of lack of probable cause, discussed below.

The law has not developed uniformly, in recent years, on the applicability of the common law elements of malicious prosecution. Five months after Albright, in Heck v. Humphrey, the Court shaped the contours of a Section 1983 claim for unconstitutional conviction in part by reference to the common law tort’s requirement of favorable termination. See Heck v. Humphrey, 512 U.S. 477, 484 (1994). However, four Justices, concurring in the judgment, denied that the common law elements should apply to the constitutional tort. See id. at 494 (Souter, J., joined by Blackmun, Stevens, & O’Connor, JJ., concurring in the judgment) (arguing for example that a plaintiff – who had been convicted on the basis of a confession that had been coerced by police officers who had probable cause to believe the plaintiff was guilty – should not be barred from bringing a Section 1983 unconstitutional conviction claim for failure to show a lack of probable cause); cf. Hartman v. Moore, 126 S. Ct. 1695, 1702 (2006) (noting in a First Amendment retaliatory-prosecution case that “the common law is best understood here more as a source of inspired examples than of prefabricated components of Bivens torts”).

In a post-Heck case, the Court of Appeals rejected the contention that a Section 1983 claim alleging “unconstitutional conviction and imprisonment on murder charges” does not accrue until there is “a judicial finding of actual innocence”; the court relied partly on the rationale that Heck “should not be read to incorporate all of the common law of malicious prosecution into the federal law governing civil rights cases of this kind.” Smith v. Holtz, 87 F.3d 108, 110, 113-14 (3d Cir. 1996).256 Similarly, the Court of Appeals noted in Gallo that
by suggesting that malicious prosecution in and of itself is not a harm, Albright also suggests that a plaintiff would not need to prove all of the common law elements of the tort in order to recover in federal court. For instance, if the harm alleged is a seizure lacking probable cause, it is unclear why a plaintiff would have to show that the police acted with malice. Gallo, 161 F.3d at 222 n.6.

However, in other post-Albright cases the Court of Appeals has stated that Section 1983 plaintiffs must establish not only a specific constitutional violation but also the common-law elements for malicious prosecution:257
[A] plaintiff must show that: (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 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. Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 362-63 (3d Cir. 2003) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)); see also Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017); DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005).

In 2009, the en banc Court of Appeals approved the approach that requires the plaintiff to establish the common law elements. See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). Thus, the discussion that follows considers each element in turn.

Initiation. Though post-Albright Third Circuit Court of Appeals cases have not focused on this element, it seems appropriate to require the plaintiff to establish that the defendant was involved in initiating the prosecution.

Where the relevant law enforcement policy is not to file charges unless the alleged crime victim so requests and not to drop those charges without the alleged victim’s permission, and where the alleged victim acted under color of state law, the alleged victim can be sued for malicious prosecution under Section 1983 if the requisite elements are present. See Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 (3d Cir. 2000) (holding that “the School Defendants, not just the Police Defendants, are responsible for Merkle's prosecution”); see also Gallo, 161 F.3d at 220 n.2 (“Decisions have ‘recognized that a § 1983 malicious prosecution claim might be maintained against one who furnished false information to, or concealed material information from, prosecuting authorities’” (quoting 1A Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation, § 3.20, at 316 (3d ed. 1997).).

Favorable termination. Post-Albright, the Court of Appeals has continued to require malicious prosecution plaintiffs to show favorable termination. See Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002) (citing Heck, 512 U.S. at 484 and noting that “Heck was decided [soon] after Albright”).

In Donahue the court held that entry of a nolle prosequi only counts as a favorable termination when the circumstances of the entry indicate the plaintiff’s innocence. See Donahue, 280 F.3d at 383 (citing Restatement (Second) of Torts §§ 659 & 660 (1976)); see also Geness v. Cox, 902 F.3d 344, 356 (3d Cir. 2018) (holding that to determine whether a nolle prosequi order indicates innocence requires consideration of the underlying facts and particular circumstances and that where prosecutor anticipated that it would not be possible to prove the case beyond a reasonable doubt, the order indicated innocence and constituted a favorable termination); Hilfirty v. Shipman, 91 F.3d 573, 575 (3d Cir. 1996) (“Because we find that Miller neither compromised with the prosecution to obtain her grant of nolle prosequi nor formally accepted the nolle prosequi in exchange for a release of future civil claims, we conclude that the underlying proceeding terminated in her favor.”). Resolution of a criminal case under Pennsylvania’s Accelerated Rehabilitation Disposition program “is not a favorable termination under Heck.” Gilles v. Davis, 427 F.3d 197, 211 (3d Cir. 2005).258

“[T]he favorable termination of some but not all individual charges does not necessarily establish the favorable termination of the criminal proceeding as a whole. Rather... , upon examination of the entire criminal proceeding, the judgment must indicate the plaintiff's innocence of the alleged misconduct underlying the offenses charged.” Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009) (en banc); see also id. at 189 (holding on the specific facts of the case that plaintiff’s “acquittal on the aggravated assault and public intoxication charges cannot be divorced from his simultaneous conviction for disorderly conduct when all three charges arose from the same course of conduct”). The Kossler majority stressed the fact intensive nature of this inquiry and left “for another day the establishment of universal contours of when a criminal proceeding which includes both an acquittal (or dismissal) and a conviction constitutes a termination in the plaintiff's favor.” Id. at 192. A Pennsylvania Superior Court order vacating a judgment of sentence without imposing any unfavorable conditions or burdens on the defendant constitutes a favorable termination. Bronowicz v. Allegheny County, 804 F.3d 338, 347-48 (3d Cir. 2015) (distinguishing Kossler and Gilles because, unlike in those cases, the Superior Court order did not imply that the sentence imposed was valid, and explaining that the requirement that the prior outcome indicate innocence does not call for magic words but rather directs the inquiry to the purpose of the favorable termination rule: avoiding conflicting resolutions in the criminal case and the § 1983 case).

Lack of probable cause. “Under § 1983, false arrest, false imprisonment, and malicious prosecution claims require a showing that the arrest, physical restraint, or prosecution was initiated without probable cause.” Pulice v. Enciso, 39 Fed. Appx. 692, 696 (3d Cir. July 17, 2002) (nonprecedential opinion); see also Wright v. City of Philadelphia, 409 F.3d 595, 604 (3d Cir. 2005) (“Wright bases her malicious prosecution claim on alleged Fourth Amendment violations arising from her arrest and prosecution. To prevail on this claim, she must show that the officers lacked probable cause to arrest her.”).

In some cases, a finding of probable cause for one among multiple charges will foreclose a malicious prosecution claim with respect to any of the charges. Thus, in Wright, the decision that there was probable cause to arrest the plaintiff for criminal trespass “dispose[d] of her malicious prosecution claims with respect to all of the charges brought against her, including the burglary.” Wright, 409 F.3d at 604. But Wright does not “‘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.” Johnson v. Knorr, 477 F.3d 75, 83 (3d Cir. 2007). Otherwise, “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.” Johnson, 477 F.3d at 84 (quoting Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991)). Under Johnson, the court must analyze probable cause with respect to each charge that was brought against the plaintiff. See id. at 85. Johnson distinguished Wright by scrutinizing the duration and nature of the defendants’ alleged conduct: In Wright, the defendants’ “involvement apparently ended at the time of the arrest,” whereas the plaintiff in Johnson alleged that the defendant’s involvement “lasted beyond the issuing of an affidavit of probable cause for his arrest and the arrest itself” and that the defendant “intentionally and fraudulently fabricated the charges against him,” leading to the prosecution. Johnson, 477 F.3d at 84. If a plaintiff establishes that the facts of the case warrant application of Johnson’s rule rather than Wright’s,259 it apparently is still open to the defendant to argue that “the prosecution for the additional charges for which there might not have been probable cause in no way resulted in additional restrictions on [the plaintiff’s] liberty beyond those attributable to the prosecution on the... charges for which there was probable cause.” Id. at 86.

The en banc Court of Appeals has “note[d] the considerable tension that exists between our treatment of the probable cause element in Johnson and our treatment of that element in the earlier case of Wright.” Kossler, 564 F.3d at 193. Though the Kossler court noted that if Wright and Johnson were “in unavoidable conflict” the earlier of the two precedents would control, Kossler, 564 F.3d at 194 n.8, the Kossler court did not conclude that such an unavoidable conflict exists. Rather, the Kossler court indicated that courts should, when necessary, “wrestle” with the question of which precedentWright or Johnson – governs in a given case, bearing in mind the “fact intensive” nature of the inquiry. Kossler, 564 F.3d at 194.

“[T]he question of probable cause in a section 1983 damage suit is one for the jury.” Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998) (discussing Section 1983 claim for malicious prosecution). In Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984), the Court of Appeals stated that “defendants bear the burden at trial of proving the defense of good faith and probable cause” with respect to a malicious prosecution claim. However, cases such as DiBella, Camiolo and Marasco (none of which cites Losch) list the absence of probable cause as an element of the malicious prosecution claim, and thus indicate that the plaintiff has the burden of proof on that element. See, e.g., Camiolo, 334 F.3d at 363 (holding that malicious prosecution claim was properly dismissed due to plaintiff’s inability to show lack of probable cause); Marasco, 318 F.3d at 522 (“Because initiation of the proceeding without probable cause is an essential element of a malicious prosecution claim, summary judgment in favor of the defendants was appropriate on this claim.”). More recently, the Court of Appeals has stated explicitly that the malicious prosecution plaintiff has the burden to show lack of probable cause. See Johnson, 477 F.3d at 86 (“[O]n 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... , 126 S. Ct. 1695, 1702 (2006).”). Accordingly, Instruction 4.13 assigns to the plaintiff the burden of proving the absence of probable cause. Compare Comment 4.12.2 (discussing burden of proof as to probable cause with respect to false arrest claims stemming from warrantless arrests).

“[A] grand jury indictment or presentment constitutes prima facie evidence of probable cause to prosecute, but... this prima facie evidence may be rebutted by evidence that the presentment was procured by fraud, perjury or other corrupt means.” Camiolo, 334 F.3d at 363 (quoting Rose, 871 F.2d at 353).260 In Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), a case involving a claim that police officers fabricated evidence that led not only to indictment but conviction, the court of appeals held that a reasonable jury could find that there would have been no probable cause without the fabricated evidence. Compare Montgomery, 159 F.3d at 125 (holding “that the Restatement's rule that an overturned municipal conviction presumptively establish[es] probable cause contravenes the policies underlying the Civil Rights Act and therefore does not apply to a section 1983 malicious prosecution action”).

Where a claim exists against a complaining witness for that person’s role in the alleged malicious prosecution of the plaintiff, the factfinder should perform a separate probable cause inquiry concerning the complaining witness. See Merkle, 211 F.3d at 794 (“As instigators of the arrest... it is possible that the District and Brown were in possession of additional information, not provided to Detective Hahn, that would negate any probable cause they may otherwise have had to prosecute Merkle.”).

Malice or other improper purpose. It might be argued that a showing of malice should not be required where the plaintiff’s Section 1983 claim is premised on a Fourth Amendment violation. See Brooks v. City of Winston Salem, N.C., 85 F.3d 178, 184 n.5 (4th Cir. 1996) (noting that “the reasonableness of a seizure under the Fourth Amendment should be analyzed from an objective perspective” and thus that “the subjective state of mind of the defendant, whether good faith or ill will, is irrelevant in this context”). However, the Third Circuit Court of Appeals has listed malice as an element of Section 1983 malicious prosecution claims premised on Fourth Amendment violations. See Camiolo, 334 F.3d at 362-63; Marasco, 318 F.3d at 521.261

Pre-Albright caselaw defined the malice element “as either ill will in the sense of spite, lack of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous improper purpose.” Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). Following Pennsylvania law, the Court of Appeals held in another pre-Albright case that “[m]alice may be inferred from the absence of probable cause.” Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993); cf. Trabal v. Wells Fargo Armored Service Corp., 269 F.3d 243, 248 (3d Cir. 2001) (applying New Jersey law in a malicious prosecution case arising in diversity).

The Heck v. Humphrey bar. A convicted prisoner cannot proceed with a Section 1983 claim challenging the constitutionality of the conviction pursuant to which the plaintiff is in custody, unless the conviction has been reversed or otherwise invalidated.262 See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).263 Four Justices, concurring in the judgment, argued that this favorable-termination requirement should not apply to plaintiffs who are not in custody. See id. at 503 (Souter, J., joined by Blackmun, Stevens, & O’Connor, JJ., concurring in the judgment). The Heck majority rejected that argument, albeit in dicta. See id. at 490 n.10. Four years later, in Spencer v. Kemna, five Justices stated that Heck’s requirement of favorable termination does not apply when a plaintiff is out of custody.264 The Court of Appeals, however, has indicated that it is not at liberty to follow the suggestion made by those Justices.265

Plaintiff’s guilt as a defense. “Even if the plaintiff in malicious prosecution can show that the defendant acted maliciously and without probable cause in instituting a prosecution, it is always open to the defendant to escape liability by showing in the malicious prosecution suit itself that the plaintiff was in fact guilty of the offense with which he was charged.” Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000), as amended (Jan. 26, 2001) (quoting W. Keeton et al., Prosser & Keeton on the Law of Torts 885 (5th ed. 1984) (citing Restatement (Second) of Torts § 657 (1977))). “This requirement can bar recovery even when the plaintiff was acquitted in the prior criminal proceedings, for a verdict of not guilty only establishes that there was not proof beyond a reasonable doubt.” Hector, 235 F.3d at 156. It appears that the defendant would have the burden of proof on this issue by a preponderance of the evidence. See Restatement (Second) of Torts § 657 cmt. b.266

Limits on types of damages. The plaintiff’s choice of constitutional violation upon which to ground the malicious prosecution claim may limit the types of damages available. In particular, “damages for post conviction injuries are not within the purview of the Fourth Amendment.” Donahue, 280 F.3d at 382. Thus, a plaintiff who premises a malicious prosecution claim on a seizure in violation of the Fourth Amendment must “distinguish between damages that may have been caused by that ‘seizure’” – which are recoverable on that claim – and “damages that are the result of his trial, conviction and sentence” – which are not. Id.; see also DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (“[T]he Fourth Amendment does not extend beyond the period of pretrial restrictions.”).

Section 1983 claim for abuse of process. Prior to Albright, the Court of Appeals recognized a Section 1983 claim for abuse of process. “In contrast to a section 1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of process lies where ‘prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law.’” Rose, 871 F.2d at 350 n.17 (quoting Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir.1977)). Favorable termination is not an element of a Section 1983 abuse of process claim. See Rose, 871 F.2d at 351. Nor is a lack of probable cause. See Jennings, 567 F.2d at 1219. “To prove abuse of process, plaintiffs must prove three elements: (1) an abuse or perversion of process already initiated (2) with some unlawful or ulterior purpose, and (3) harm to the plaintiffs as a result.” Godshalk v. Borough of Bangor, 2004 WL 999546, at *13 (E.D. Pa. May 5, 2004).

It seems clear that, post-Albright, the plaintiff must establish a constitutional violation (not sounding in substantive due process) in order to prevail on a Section 1983 claim for abuse of process. It may be possible for the plaintiff to satisfy this requirement by showing a violation of procedural due process. See Jennings, 567 F.2d at 1220 (“An abuse of process is by definition a denial of procedural due process.”);267 Godshalk, 2004 WL 999546, at *13 (accepting argument that abuse of process can constitute denial of procedural due process).

Section 1983 claim for conspiracy to prosecute maliciously. The Court of Appeals has recognized a Section 1983 claim for conspiracy to engage in a malicious prosecution. See Rose, 871 F.2d at 352 (reversing district court’s dismissal of malicious prosecution conspiracy claims).

Fourteenth Amendment stand-alone claim under section 1983 for fabrication of evidence. In Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), the court of appeals held that even if a Fourth Amendment malicious prosecution claim were not viable, a Fourteenth Amendment stand-alone claim for fabrication of evidence would be. It rejected the argument that “evidence-fabrication claims must be tied to malicious prosecution cases,” concluding that “no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence.” Id. at 293. It noted with approval an opinion of the Court of Appeals for the Fifth Circuit that characterized jury instructions as “deeply flawed” for limiting the jury’s use of fabricated evidence to evaluate a Fourth Amendment malicious prosecution claim without allowing a finding of a Fourteenth Amendment due process violation. Pursuant to Halsey, a court should not foreclose a Fourteenth Amendment stand-alone claim for fabrication of evidence even if a Fourth Amendment malicious prosecution claim fails (for example) because of the existence of probable cause even without the fabricated evidence. Such a claim is available even if the criminal defendant is acquitted, “if there is a reasonable likelihood that, absent the fabricated evidence, the defendant would not have been criminally charged.” Black v. Montgomery County, 835 F.3d 358, 370 (3d Cir. 2016).

(Last Updated July 2019)


250 See Comment for a discussion of the burden of proof with respect to this element.
251 If this element of the claim is disputed, the court may wish to give examples of deprivations of liberty that would rise to the level of a seizure. See Comment (discussing Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998), and DiBella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005)).
252 The defendant’s initiation of the proceeding will often be undisputed. If possible, the court should rule as a matter of law on the questions of favorable termination and of seizure
253 Justice Scalia concurred in the plurality opinion; as he explained, he both disagrees with the notion of substantive due process and takes the view that the Court’s precedents recognizing substantive due process rights do not extend to situations addressed by provisions in the Bill of Rights. See Albright, 510 U.S. at 275-76 (Scalia, J., concurring). Justice Ginsburg also concurred in the plurality opinion. See id. at 276 (Ginsburg, J., concurring).
254 A plaintiff can state a claim by alleging that the defendant initiated the malicious prosecution in retaliation for the plaintiff’s exercise of First Amendment rights. See Merkle v. Upper Dublin School Dist., 211 F.3d 782, 798 (3d Cir. 2000) (holding school district superintendent not entitled to qualified immunity on plaintiff’s claim “that [the superintendent], and through him the District, maliciously prosecuted Merkle in retaliation for her protected First Amendment activities”); see also Losch v. Borough of Parkesburg, 736 F.2d 903, 907-08 (3d Cir. 1984) (“[I]nstitution of criminal action to penalize the exercise of one's First Amendment rights is a deprivation cognizable under § 1983.”). In a First Amendment retaliatory-prosecution claim, the plaintiff must plead and prove lack of probable cause (among other elements). See Hartman v. Moore, 126 S. Ct. 1695, 1707 (2006).
255 “Although Fourth Amendment seizure principles may in some circumstances have implications in the period between arrest and trial, . . . posttrial incarceration does not qualify as a Fourth Amendment seizure.” Torres, 163 F.3d at 174.
256 The Smith court also stated that “[a]ctual innocence is not required for a common law favorable termination.” Smith, 87 F.3d at 113 (citing Restatement of the Law of Torts §§ 659, 660 (1938)).
257 The Court of Appeals applied the common-law elements in Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996) (“In order to state a prima facie case for a section 1983 claim of malicious prosecution, the plaintiff must establish the elements of the common law tort as it has developed over time.”). However, the Hilfirty court did not mention Albright, so Hilfirty does not shed light on the test that should apply post-Albright. But see Nawrocki v. Tp. of Coolbaugh, 34 Fed. Appx. 832, 837 (3d Cir. April 8, 2002) (nonprecedential opinion) (citing Hilfirty for the proposition that “Albright left standing” the requirement that Section 1983 plaintiffs establish the common-law elements).

In Merkle v. Upper Dublin School Dist., the Court of Appeals held that the district court had erred in failing to require proof of a Bill of Rights violation, but the Merkle majority did not appear to take issue with the district court’s assumption that the plaintiff must establish the common law malicious prosecution elements. See Merkle, 211 F.3d at 792; see also id. at 794 (“We believe that whether these defendants’ actions against Merkle were retaliatory is, for purposes of summary judgment, influenced by the strength of Merkle's claim against them for common law malicious prosecution.”). With respect to the common law elements, the district court had held that the plaintiff had failed to show a lack of probable cause; the Court of Appeals majority disagreed, finding evidence of a lack of probable cause and of malicious intent. See Merkle, 211 F.3d at 791, 795-96.

258 The relevant claim in Gilles asserted a First Amendment violation and did not sound in malicious prosecution, see Gilles, 427 F.3d at 203, but the Court of Appeals found Heck’s reasoning “equally applicable” to the First Amendment claim and thus applied Heck’s favorable-termination requirement, id. at 209.
259 In Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008), the Court of Appeals concluded that the district court properly held on summary judgment that there was probable cause to arrest the plaintiffs for disorderly conduct. On this basis the panel majority affirmed the grant of summary judgment dismissing Fourth Amendment claims for false arrest and malicious prosecution. In a footnote, the Court of Appeals stated that it “need not address whether there was probable cause with respect to the remaining charges – failure to disperse and obstructing a public passage – for the establishment of probable cause as to any one charge is sufficient to defeat Appellants' Fourth Amendment claims. Cf. Johnson, 477 F.3d at 82 n.9, 84-85 (applying this rule to malicious prosecution claim only where the circumstances leading to the arrest and prosecution are intertwined).” Startzell, 533 F.3d at 204 n.14. See also Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (in case involving, inter alia, unlawful seizure, false imprisonment and malicious prosecution claims, stating in dictum that “[p]robable cause need only exist as to [one of the] offense[s] that could be charged under the circumstances” (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994))).

In Pitts v. Delaware, 646 F.3d 151 (3d Cir. 2011), the jury found for the plaintiff on his claims of race discrimination and illegal seizure but found for the defendant on the plaintiff’s claims for false arrest and malicious prosecution, see id. at 154. In the course of explaining why evidence of a lack of probable cause for one of the charges against the plaintiff would support the jury’s finding of race discrimination, the Court of Appeals noted that a jury finding that probable cause for that charge was absent
would not have been impermissibly inconsistent with the jury's verdict in favor of [the defendant] Spence on Pitts' malicious prosecution claim. Neither the instructions nor the general verdict form required the jury to conclude that every charge Spence brought against Pitts was supported by probable cause. Thus, the jury could have concluded that any one of the six charges brought against Pitts was supported by probable cause to find in favor of Spence on Pitts' malicious prosecution claim. Pitts, 646 F.3d at 158 n.4.

260 The defendant might also argue that a grand jury indictment breaks the chain of causation. The Court of Appeals has explained the concept of superseding causes:
[I]n situations in which a judicial officer or other independent intermediary applies the correct governing law and procedures but reaches an erroneous conclusion because he or she is misled in some manner as to the relevant facts, the causal chain is not broken and liability may be imposed upon those involved in making the misrepresentations or omissions. . . . However, . . . . where . . . the judicial officer is provided with the appropriate facts to adjudicate the proceeding but fails to properly apply the governing law and procedures, such error must be held to be a superseding cause, breaking the chain of causation for purposes of § 1983 and Bivens liability. Egervary v. Young, 366 F.3d 238, 250-51 (3d Cir. 2004). Though Egervary involved a judge’s decision, rather than a grand jury’s, the rationale of Egervary seems equally applicable to the grand jury context. (For a discussion of the possibility that Supreme Court precedents may limit the application of the superseding cause principle with respect to the issuance of warrants, see supra Instruction 4.12 cmt.) In any event, assuming that the supervening cause doctrine applies to grand jury indictments, its net effect seems similar to that of the lack-of-probable-cause requirement: Where a grand jury has indicted the plaintiff, the plaintiff must present evidence that the indictment was obtained through misrepresentations or other corrupt means. See also Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014) (holding that a prosecutor’s decision to charge did not necessarily break the causal chain because a reasonable jury could find that the prosecutor would not have filed charges in the absence of evidence fabricated by police officers).

261 Admittedly, both Marasco and Camiolo were decided based upon the lack-of-probable-cause element, so the statements in those cases concerning malice do not constitute holdings. But more recently the court of appeals affirmed the dismissal of a Section 1983 malicious prosecution claim based on “insufficient evidence of malice.” McKenna v. City of Philadelphia, 582 F.3d 447, 461-62 (3d Cir. 2009).
262 The Court of Appeals has indicated that the Heck bar is conceptually distinct from the favorable-termination element of a Section 1983 claim. See Kossler, 564 F.3d at 190 n.6 (stating that the court did “not need to apply Heck's test in the present case” because the plaintiff had in any event failed to establish the common law element of favorable termination). Despite this assertion of conceptual distinctiveness, the court of appeals has relied on both Kossler (applying the common law rule) and Gilles (applying the Heck bar) interchangeably in applying the Heck bar. Bronowicz v. Allegheny County, 804 F.3d 338, 347-48 (3d Cir. 2015).

A dismissal predicated on Heck should be without prejudice. Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016). A nolo contendere plea counts as a conviction for Heck purposes. Id. at 378.

263 See also Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011) (holding that plaintiff inmate could pursue claim for DNA testing under Section 1983 because success in that suit “would not ‘necessarily imply’ the invalidity of his conviction”); Long v. Atlantic City Police Dep’t, 670 F.3d 436, 438, 447 (3d Cir. 2012) (holding that inmate’s damages claim alleging that law enforcement defendants “conspired to obtain a capital murder conviction against him by knowingly presenting false evidence at his trial, and deliberately preventing him from obtaining DNA testing that would prove his innocence” was distinguishable from Skinner and “plainly barred by Heck”); Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002) (“[W]henever the challenge ultimately attacks the ‘core of habeas’ --the validity of the continued conviction or the fact or length of the sentence--a challenge, however denominated and regardless of the relief sought, must be brought by way of a habeas corpus petition.”); Torres v. Fauver, 292 F.3d 141, 143 (3d Cir. 2002) (“[T]he favorable termination rule does not apply to claims that implicate only the conditions, and not the fact or duration, of a prisoner's incarceration.”); McGee v. Martinez, 627 F.3d 933, 937 (3d Cir. 2010) (“The [Inmate Financial Responsibility Plan] payment schedule and the sanctions imposed for noncompliance are part of the execution of McGee's sentence. Accordingly we hold that the claim that they are illegal and invalid falls under the rubric of a § 2241 habeas petition.”).

The Third Circuit had previously reasoned that the Heck rationale extends to pending prosecutions: “[A] claim that, if successful, would necessarily imply the invalidity of a conviction on a pending criminal charge is not cognizable under § 1983.” Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996). However, the Supreme Court more recently rejected the assertion “that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside.” Wallace v. Kato, 127 S.Ct. 1091, 1098 (2007). Under Wallace, prior to the defendant’s actual conviction Heck bars neither the accrual of a claim nor the running of the limitations period. Rather, “[i]f a plaintiff files a false arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.... If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit.” Wallace, 127 S. Ct. at 1098.

264 See Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Souter, J., joined by O’Connor, Ginsburg & Breyer, JJ., concurring) (“[A] former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable termination requirement that it would be impossible as a matter of law for him to satisfy.”); id. at 25 n.8 (Stevens, J., dissenting) (“Given the Court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter explains, that he may bring an action under 42 U.S.C. § 1983.”).
265 The Court of Appeals explained:
We recognize that concurring and dissenting opinions in Spencer v. Kemna... question the applicability of Heck to an individual, such as Petit, who has no recourse under the habeas statute.... But these opinions do not affect our conclusion that Heck applies to Petit's claims. We doubt that Heck has been undermined, but to the extent its continued validity has been called into question, we join on this point, our sister courts of appeals for the First and Fifth Circuits in following the Supreme Court's admonition "to lower federal courts to follow its directly applicable precedent, even if that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the Court 'the prerogative of overruling its own decisions.'" Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998) (citing Agostini v. Felton, 521 U.S. 203, 237 (1997)); see Randell v. Johnson, 227 F.3d 300, 301- 02 (5th Cir. 2000). Gilles v. Davis, 427 F.3d 197, 209-10 (3d Cir. 2005).

266 However, in a nonprecedential opinion, the Court of Appeals has read Hector to assign the burden of proof on this issue to the plaintiff. See Steele v. City of Erie, 113 Fed. Appx. 456, 459 (3d Cir. Oct. 20, 2004) (“In Hector . . . , we held that a plaintiff claiming malicious prosecution must prove actual innocence as an element of his prima facie case.”).
267 The abuse of process alleged by the plaintiff in Jennings involved the use of the prosecution as leverage for an extortion scheme. Jennings, 567 F.2d at 1220 (“The goal of that conspiracy was extortion, to be accomplished by bringing a prosecution against him without probable cause and for an improper purpose.”).

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