ALD-014 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2502

___________

ANTHONY WHITE,

Appellant

v.

DETECTIVE OFFICER CHRISTIAN BROWN; 

DETECTIVE OFFICER KLINE; MARTIN B. O'CONNOR

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 08-cv-00606)

District Judge: Honorable Eduardo C. Robreno

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 21, 2010

Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

(Filed November 4, 2010)

_________

OPINION OF THE COURT

_________

PER CURIAM.

Anthony White, a Delaware state prisoner, appeals pro se from an order of the 

 

Due to a vacant judgeship in the District of Delaware, this case was assigned to the 

Honorable Eduardo C. Robreno of the Eastern District of Pennsylvania.
2

United States District Court for the District of Delaware granting summary judgment to 

the defendants. Since the District Court‟s ruling was proper and this appeal does not 

present a substantial question, we will summarily affirm.

I.

The present action arises from White‟s arrest and prosecution for the armed 

robbery of the Forman Mills Store in Delaware. Two men, one of whom had braided 

hair, robbed the store on Christmas Eve of 2006. Detective Christian Brown began 

investigating the crime and, using images of the perpetrators from surveillance video, 

prepared a flyer seeking information. Detective Ronald Kline saw the flyer and remarked 

to Brown that one of the suspects resembled White. 

Brown subsequently interviewed Jesse McCrae, the store security guard, who 

stated that he had observed at least one of the suspects at a close distance. Brown created

a photo array that included a picture of White in which his hair was braided, and McCrae

immediately identified White as the perpetrator with the braided hair. Based on 

McCrae‟s identification, Brown prepared an affidavit of probable cause and acquired an 

arrest warrant for White and a search warrant for his residence. White was arrested and 

his residence searched, yielding an illegal handgun and marijuana. Due to a prior felony 

conviction, White was prohibited from possessing a firearm. At his deposition, White 

testified that, while executing the search warrant, officers found pictures dated October 7, 

2006, and December 3, 2006, in which White had short, unbraided hair. 

Martin O‟Connor was assigned to prosecute the case against White and indicted 
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White for various offenses related to the robbery and the marijuana. White was

subsequently reindicted and charged with an additional offense of possession of a firearm 

by a person prohibited in connection with the firearm recovered from his residence (the 

“firearm charge”). White pled guilty to the firearm charge in exchange for the dismissal 

of the remaining charges against him and was ultimately sentenced. His conviction has 

not been vacated.

White filed a pro se amended complaint, pursuant to 42 U.S.C. § 1983, against

McCrae, O‟Connor, and Detectives Brown and Kline, based on White‟s implication in 

and arrest and prosecution for the robbery. White alleged that the defendants falsely 

arrested and imprisoned him, maliciously prosecuted him, and conspired to violate his 

constitutional rights. He sought nominal, compensatory, and punitive damages.1

The District Court sua sponte dismissed the claims against McCrae because he is 

not a state actor subject to liability under § 1983, but permitted the remainder of the 

lawsuit to proceed.2 After a brief discovery period, the defendants moved for summary 

 

1

Even under a liberal pleading standard, we (like the District Court) do not read White‟s 

amended complaint to challenge the search of his residence.

2 Although private parties may not be subjected to liability under § 1983 in their own 

right, “a private party can be liable under § 1983 if he or she willfully participates in a 

joint conspiracy with state officials to deprive a person of a constitutional right.” Max v. 

Republican Comm. of Lancaster Cnty., 587 F.3d 198, 203 (3d Cir. 2009). Thus, the 

District Court should not have dismissed the conspiracy claim against McCrae. 

However, as discussed below, White cannot establish that his constitutional rights were 

violated in connection with his arrest and prosecution nor that defendants maintained any 

illegal agreement. Thus, his claim against McCrae necessarily would have failed even if 

it was permitted to proceed. 
4

judgment. In connection with their motion, the defendants submitted, among other 

things, Brown‟s affidavit of probable cause; the docket from White‟s criminal case; the

October 7, 2006 and December 3, 2006 pictures; and affidavits of Brown, Kline, and 

O‟Connor. The defendants also submitted an email from Joseph Hurley, White‟s counsel 

in an unrelated case, to O‟Connor stating, “I heard that your „frameup‟ of „Ant‟ on the 

Forman Mills robbery was revealed. What happened, bro?” (Defs.‟ App‟x to Opening 

Br. in Supp. of Mot. for Summ. J. A000109.) O‟Connor attested that he became aware of 

the email after White filed it with the District Court, that he had no recollection of 

receiving it, and that he was not aware of or involved in any “setup.” (O‟Connor Aff. ¶ 

6.) White responded that summary judgment was inappropriate, predominately based on 

Hurley‟s email and the photographs in which he has short hair. 

The District Court granted summary judgment to the defendants, holding that 

White could not establish a violation of his constitutional rights, that Brown and Kline 

were entitled to qualified immunity from White‟s claims, and that O‟Connor was entitled 

to absolute immunity. White timely appealed.

II.

The District Court had jurisdiction over White‟s claims under 28 U.S.C. §§ 1331 

and 1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of 

an order granting summary judgment is plenary. Curley v. Klem, 298 F.3d 271, 276 (3d 

Cir. 2002). Summary judgment is appropriate “if the pleadings, the discovery and 

disclosure materials on file, and any affidavits show that there is no genuine issue as to 
5

any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(c)(2). We must “view all evidence and draw all inferences in the light most 

favorable to the non-moving party . . . .” Startzell v. City of Phila., 533 F.3d 183, 192 (3d 

Cir. 2008). We may summarily affirm if no substantial question is presented by the 

appeal, see 3d Cir. LAR 27.4; 3d Cir. IOP 10.6, and may affirm on any ground supported 

by the record. Berardi v. Swanson Mem‟l Lodge No. 48, 920 F.2d 198, 201-02 (3d Cir. 

1990).

First, the District Court properly granted summary judgment on White‟s false 

arrest and false imprisonment claims. To succeed on such claims, a plaintiff must 

establish that probable cause was lacking for his arrest and related detention. See 

Groman v. Twp. of Manalapan , 47 F.3d 628, 634-36 (3d Cir. 1995). “[P]robable cause 

to arrest exists when the facts and circumstances within the arresting officer‟s knowledge 

are sufficient in themselves to warrant a reasonable person to believe that an offense has 

been or is being committed by the person to be arrested.” Orsatti v. N.J. State Police, 71 

F.3d 480, 483 (3d Cir. 1995). “Probable cause exists if there is a fair probability that the 

person committed the crime at issue,” see also Wilson v. Russo, 212 F.3d 781, 789 (3d 

Cir. 2000) (quotations omitted), and “does not depend on whether the suspect actually 

committed any crime.” Wright v. City of Phila., 409 F.3d 595, 602 (3d Cir. 2005). 

Probable cause existed for White‟s arrest because it was reasonable for Brown to 

believe, based upon McCrae‟s immediate and ostensibly reliable identification, that
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White was one of the armed robbers.

3

 Even if the detectives came across recent pictures 

of White with short hair during the execution of the search warrant, that would not vitiate 

probable cause. See Wilson, 212 F.3d at 790-92 (probable cause existed for arrest based 

on eyewitness identification of plaintiff and witness‟s observation of plaintiff near crime 

scene despite the fact that the perpetrator was described as an individual four to seven 

inches taller than plaintiff and that one of the victims did not identify plaintiff in a photo 

array). Moreover, there is simply no evidence, despite White‟s assertions, that McCrae‟s 

identification was coerced or that Brown made any material false statements or omissions 

in applying for the warrant. 

Second, the District Court correctly granted summary judgment to the defendants 

on White‟s malicious prosecution clam. “To prevail on a malicious prosecution claim 

under section 1983, a plaintiff must show that: (1) the defendants initiated a criminal 

proceeding; (2) the criminal proceeding ended in the 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 

 

3

In his response to the defendants‟ motion, White also takes issue with his arrest for 

illegal possession of the gun found at his residence, because the gun allegedly belonged 

to his sister. Since White‟s amended complaint is premised on his arrest and prosecution 

for the robbery, this theory was not adequately pled. Regardless, documents filed by 

White establish that, although White‟s sister purchased the gun, his stepfather told police 

that the gun belonged to White and that he had seen White with the gun on several 

occasions. Those facts are sufficient to establish probable cause to arrest White on the 

firearm charge.
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proceeding.” See McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009). To 

satisfy the second element – favorable termination – the “prior criminal case must have 

been disposed of in a way that indicates the innocence of the accused . . . .” Kossler v. 

Crisanti, 564 F.3d 181, 187 (3d Cir. 2009) (en banc).

White cannot establish that he was maliciously prosecuted for offenses related to 

the robbery because the underlying criminal proceeding did not terminate in a manner 

reflecting White‟s innocence of the charged offenses.4 White pled guilty to the firearm 

charge in exchange for dismissal of the remaining charges against him, i.e., the charges 

based upon the robbery and the marijuana found at his residence. That the dismissal of 

those charges resulted from White‟s plea agreement with the prosecution, and not his 

innocence, means that he cannot establish favorable termination for purposes of a § 1983 

action for malicious prosecution. See Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 

2002) (a grant of nolle prosequi that does not establish actual innocence cannot be used 

as a basis for establishing malicious prosecution).

Finally, the District Court properly granted summary judgment on White‟s 

conspiracy claims because White cannot establish an underlying violation of his 

constitutional rights. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 

 

4

To the extent that White brings a malicious prosecution claim for the firearm charge, 

see supra note 3, he has no cognizable § 1983 claim because he pled guilty and his 

conviction has not been reversed or vacated. See Heck v. Humphrey, 512 U.S. 477, 486-

87 (1994). If White seeks to challenge his guilty plea, he is limited to filing a petition for 

a writ of habeas corpus or other appropriate petition for post-conviction relief.
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254 (3d Cir. 1999) (“In order to prevail on a conspiracy claim under § 1983, a plaintiff 

must prove that persons acting under color of state law conspired to deprive him of a 

federally protected right.”). Furthermore, there is no evidence of any agreement among 

the defendants pertaining to White‟s arrest and prosecution. Hurley‟s email, which White 

primarily relies upon, is inadmissible hearsay that cannot be used to overcome summary 

judgment. See Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009) (“Hearsay 

statements that would be inadmissible at trial may not be considered for purposes of 

summary judgment.”). 

For the foregoing reasons, we will summarily affirm the District Court‟s grant of 

summary judgment to Brown, Kline, and O‟Connor.5 We also deny White‟s motion for 

counsel. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).

 

5 White‟s amended complaint appears to assert a due process claim based upon the 

defendants‟ failure to return property seized from his residence despite termination of the 

criminal proceeding. However, White‟s response to the defendants‟ motion for summary 

judgment and exhibits attached thereto illustrate that he never claimed the disputed 

property himself, but is instead attempting to recover it on his mother‟s behalf. Since 

White is asserting his mother‟s rights, not his own, he lacks standing to bring this claim. 

See Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 298-99 (3d Cir. 2003) 

(“In general, a litigant may assert only his own legal rights or interests, and can not „rest a 

claim to relief on the legal rights or interests of third parties.‟”) (quoting Powers v. Ohio, 

499 U.S. 400, 410 (1991). Thus, the District Court‟s failure to address that claim in 

granting summary judgment was harmless.