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### NOT PRECED ENTIAL UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT

No. 02-4131

DAVID E. BACKOF,

Appellant v. THE NEW J

ERSEY STAT E POLICE ; THE OCEAN COUNTY PROSECUTO R'S OFF ICE; THE BUREAU OF ALCOHOL TOBACCO & FIREARMS; JOHN M. SOULIAS, Dete ctive; J

AMES F. C ORBLEY, Dete ctive; RO BERT W. SCOTT, Assistant Prosecutor; MARC E. ROESSLER, Assistant Prosecutor; E. DAVID MILLARD, Oc ean County Prosecut or; JOHN DOES, ( 1-100) Appeal from the United States Dist rict Court for the District of New Jersey (D.C. Civi l Action No. 01-cv-02731) District Judge: H onorab le Garrett E. B rown , Jr.

Argued December 11, 2003

Be for e: A M BR O, F UE NT ES and GA RT H, Circuit Judges (Fil ed February

13, 2004) Willi am Strazza, Esq. (Argued) Law Office of William Strazza 2004 Morris Avenue P.O. Box 3806 Union, NJ 07083 Attorneyfor Appell

ant

### 2 Peter C. Harvey Acting Attor

ney Generalof New Jersey Michael Haas Assist ant Attor

ney Generalof Counsel Melanie L. Armstr ong (Argued) Deputy Att orney

General Office of Attor

ney Generalof New Jersey De partm ent of

Law & P ublic S afety Richard J. Hughes Justi ce Complex Trenton, NJ 08625 Attorney s for Appellees

OPI NION

AM BR O, Circuit

Judge 

### David E. Backof appe alsthe Di str ict Court ’s di smi ssal of hi s § 1983 a cti on. He alleges that Dete ctives John Soulias and James Corbley, m

embers of the New Jersey State Police (“ State Police”) , violat ed his ci vil rights by

mali ciously

prosecut ing him for his purpo rtedly unlawful acq uisition of handgu ns. The parties a gree that the ap plicable statute of limitations is tw o years but disagree as to w hen the cau se of action a ccrued. We deal not only

with whether Backof’s claim i s timely , but also with whether he has all eged a ll t he re quisi tesfor a § 1983 cl aim

base d on ma

lic ious prose cuti on. Though we conclude Backof’s com

plaint fa ils to a llege ne cessa

ry elements of a § 1983 m

alici ous prosecut ion cause of action, what is ne cessa ry rema ins indistinct. In the cont ext of

### 3

commenting on (wi

thout deci ding) those

requirements , we vaca

te the judgm

ent and remand with instru ctions to allow amendment to the plead ings within a reasonable period. I. Factual and Procedural History Backof, a gun collector, holds a State of New Jersey Firearms Purchas er Identification Card. Seven ty-six handguns w ere legally registered to him as of early 1999. In Februa

ry 1999, Backof ar

ranged to t

rade fir earm s with Mar

k Fischer, whom he understoo d to be a licensed California g un dealer. Ba ckof employed Don ald Daughenbaugh, a

licens ed firea

rms de aler, to conduct t

he trans action. Backof sent Fischer several i

tems, incl uding a handgun and clips, a copy of Daughenbaugh’s New Jersey Retail Firearms Dealer License and Federal Firearms Lic ense, and a letter describing the trade and instruct ing Fischer to send the designated weapons as well as two copies

of his Feder

al Fire arms

License , one of which woul d go to the “de aler doi ng the transfer.” Shortly after r eceivi ng Backof’s shipment , Fische r was ar reste d by a

gents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). His home was searched pursuant t

o a sear ch warra nt, and the

item s sent by

Backof were

seize d, along wit

h the weapons in tended fo r shipment to Back of. ATF agen ts sought to obtain a search warrant fo r Backof’ s home. Their req uests were denied by both the United States Attorney ’s Office in New Jersey and the Stafford

### 4

Police Department on the basi s of Backof’s reputation as a gun collector who complies strictly with federal and state f irearm regulations. T he agents sub sequently attempted to procure a w arrant from the O cean Coun ty, New Jersey, Prosecutor’s Office (“C ounty Prosecutor’s O ffice”). Up on inqu iry with the Stafford Police Department, th e County Prosecutor’s O ffice was in formed of B ackof’s rep utation fo r compliance with th e law. The Cou nty Prosecutor’s Off ice, in turn, wen t to the State Po lice. Defendant Cor

bley of the Stat

e Police led the i nvestiga tion. In t hat capacity, he swore out an affidavit in support of a search warrant for Backof’s home. Backof alleges that the facts cited in the affid avit provid ed insuff icient evidence of criminal beha vior. Moreover, Corbley had pers onal knowledge only of the fact that Backof did not have a New Jers ey

Retail Firear ms Dea ler Lic ense. A m

agistr ate judge nonetheles s issue d a search warrant b ased on Co rbley’s affidavit. On March 12, 1 999, AT F, the Cou nty Prosecut or’s Offic e, and Sta

te Polic e personne l (incl

uding the defe

ndants) executed t

he warrant and seized various items from Backof’s home

. The same day , Backof was charged wi

th violat ions of N.J. S.A. §§ 2C:58-3 a nd 2C:39-10(a)for unlawfull y a cquiring ha

ndguns. Defenda

nt Soulias

signed the complaint. Therea fter, the def endants pu rportedly communicated with B ackof dire ctly on two occasions despite knowing that he was represented by counsel who had instructed them not todo so. In the

ensui ng mon th, t he Sta te Policeinvestiga

ted t he cha rges . An interview with Daughen baugh su pported B ackof’s de scription of the intended deal.

### 5

On April 14, 1999, Backof’s attorney entered his noti ce of appearance, requested discovery (which he never received), and filed a m otion to suppress. Backof was offered and refu sed a plea of

probation . On May 20, 199 9, he soug ht dismissal of the ch arge. The County

Prosecut or’s Offic e admi

nistra tively dismi ssed the

charge a gainst hi m on June 8, 19 99. Followin g the administrative d ismissal, Backof requ ested the return of his property. The Assistant Prosecutor did not respond to these request s. Backof’s subsequen t efforts to o btain relief we re unsuccessf ul. The current complaint was fil ed on June 8, 2001. One year later,the District Court entered Backof’s v oluntary dismissal of his complain t against the Co unty Prosecutor’s Office defendants. Defendants Corbley , Soulias, and the State Police t hen filed a Rule 5 6(c) motion to d ismiss. Backof sub sequently conceded that the State Police, as well as Co rbley and Soulias in th eir official cap acities, were not p ersons within the meaning of

§ 1983 . The complaint w as thus dismissed as to th ose parties. The only remaining defendants are Souliasand Corbley in their individual capacities. In October 2002 the Dist

rict Cour t dism issed t he compl aints a

gainst Soulias and Cor

bley as being time-barred. Backo f thereafter ap pealed. The Distr ict Court ’s juris diction ove r this c ase st

emmed from 28 U. S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary1 We assume for the pu rposes of this opinion that the D istrict Court dismissed B ackof’s complaint

pursuant to FederalRule of CivilProcedure 12(b)(6). The “Third Circ uit Rule ” permits a court, under appropr iate circumst ances, t o grant a Rul e 12(b)( 6) motion bas ed on a limita tion s de fen se. See, e. g., Robi nson v. Johns on , 313 F.3d 128, 135 (3d Cir. 200 2) . Whi le th e de fen dan ts fi le d a “ Moti on t o Di smi ss th e Comp la in t p ur suantto Fed . R. Civ. P. 56( c),” t

he Distr ict Court

appears t o have inst ead appli ed the 12(b) (6) st andard. Giv en o ur d ispo sition of th e ca se, th is pro ced ura l po sture is irre leva nt. 

### 6 review of the District Cou rt’s order to dismiss. 1 

### Saldana v. Kmart Corp. , 260 F.3d 228, 231-32 (3d Cir. 2001). II. Dis cussion A. Overview Backof’s a ppeal addre sses primarily whether the District Cou rt correctly dismi ssed his

claims as ti

me-ba rred. Re solving thi s issue entail s a twofold i

nquiry : 1) whether Backof has prope rly allege d a § 1983 clai

m base d on mali cious pros ecution; and 2) if so, when that cause of action accrues. We take up these questions in revers e order (and, not surprisingly , with the easier quest ion first). B. Statute o f Limitations It is we ll-settled t

hat a § 1983 cl aim ba sed on ma licious prosecut ion does not accrue until pr oceedings ag ainst the criminal defe ndant are dismissed. Smith v. Ho ltz , 87 F.3d 108, 110 (3d Cir . 1996). The a pplicabl e stat

ute of lim itati ons for § 1983 act

ions derives from the “general or residual [state] st

atute [of limitat

ions] for personal injury actions.” Owens v. Oku re , 488 U.S. 235, 250 ( 1989). The re levant statute of limi tations under New Jersey

law is the two-y

ear statute of lim

itations applicable t

o personal injury2 For example, Backof include d a stat e law fals e arres t cla im in hi s complaint , and he

might have cons idered ba sing hi s § 1983 clai m on false ar rest had he not been pr ecluded from doin g so b y the statute of lim itations. S evera l courts , includ ing the Seco nd an d Fif th Circuit s, have hel d that § 1983 c laims arisi ng from false arres t and rel ated Fourt h and Fifth Amendment viol ations do not accr ue untilthe pla inti ff’s convi ction i s overt urned. Wells v. Bonner , 45 F .3d 90 , 95 (5 th Cir. 1 995 ); Wo ods v . Can dela , 47 F.3d 545, 546 (2d Cir. 1995) . But we expli citly r eject ed this argument i n Montgom ery v. D e Sim one , 159 F.3d 120, 126 n.5 (3d Cir. 1998) (“[The plaintiff’s] cl aims for false arrest and false impris onment are not

the ty pe of clai ms contemplat ed by t he Court in Heck which necessar ily

impli cate t

he vali dity

of a convict ion or se ntence.

. . . Accordingly , we read Heck to be consistent with our deter mination that [her] fal se arrest and false 

### 7 torts: N.J.S.A. § 2A:14-2

. See Cito v. Brid gewater Tw

p. Police Dep t. , 892 F.2d 23, 24 (3d Cir. 19 89). In Heck v. Humphrey , 512 U.S. 477, 487 (199 4), the Supreme Court concluded that a claim

for malicious prosecuti on cannot proceed “unless the plaintiff can demonstrate that

the conviction or sentence has alr eady bee n invalidated.” A claim does not accr

ue “so long as the potential for a judgment in the pending crim inal prosecution continues to exist.” Smith , 87 F. 3d at 1 10. Here t here is no doubt t

hat i f a mali cious pros ecution ha s been ple d adequate ly , it ac crued on June 8, 1999, when the County Prosecuto r’s Office d ismissed its charge against B ackof. C. Elements of a § 1983 Malicious P rosecution C laim As Backof’s

compla int was fi led on June 8, 2001, a § 1983 ma licious prosecut ion claim by hi m would be t

imel y. But has Backof in fact pr esente d a § 1983 mal icious claim? Or has he m

erely dresse d up some ot

her, ti me-ba rred cl aim a s a § 1983 ma licious prosecution claim in order to eva de the statute of limitations? 2 

### In considerin g theseimprisonm ent claims acc rued on the night of h er arrest.”).

3 As a g eneral ma tter, pleading requirem ents for § 1 983 claim s are quite perm issive. In Lea therm an v. Tarra nt Co unty N arco tics Intellig ence and Co ordin ation U nit , 507 U. S. 163, 168 (1993) , the Supreme Court hel d that a court may

not apply

a “height ened plead ing stan dard ” in § 1 983 action s. W hile the hold ing ex plicitly enco mp assed only § 19 83 a ct io ns a gai nst

muni ci pal it ie s a nd l eft

ope n the ques ti on wh ether th e Supr eme Court’s qua lifi ed immunity juri sprudence would r equire he ightene d pleadi ng in cases inv olv ing ind ivid ual g ove rnm ent o ffic ials, id . at 166 -67, its log ic app ears to exten d to all § 19 83 a ction s. See Loftus v. Sout heaster n Pa. Transp. Auth. , 843 F. S upp . 981 , 985 n.4 (E.D . Pa. 19 94) (c iting sev eral D istrict Co urt cas es so h olding ). Thu s, for ex amp le, in Abbott v. Latshaw , 164 F.3d 141, 148 (3d Cir. 1998), we cit ed Leatherman for the proposition that

notice pleadi ng is suff

icie nt in § 1983 ca ses. While that case involved a private party

who participated in a conspiracy with state offici als, we did not disti nguish among § 1983 cases for t he purposes of

the noti ce pleadi ng rule.

4 A plaintiff n eed no t necessarily invoke the m agic w ords “m alicious prosecu tion.” In fact, given the confusion s urroundi ng this brand of § 1983 cl aim, some cour ts have cea sed to u se th e term

. See, e. g. , Karam v. City of Burbank , 352 F.3d 1188, 11 91 (9th C ir. 2003) (re ferri ng to “§ 1983 cl aims that were predic ated on an al leged vi olati on of the Fou rth A men dm ent,” alth oug h the p laintiff “ allege d ‘m aliciou s pros ecutio n’ in artic ulati ng h er § 198 3 cla ims ”).

5 We are not alone . The Fift h Circuit recent ly assess ed its own case law governi ng malici ous prosecution cla ims under § 1983 as follows: “With hindsi ght, our precedent governing § 1983 mal icious prosecut ion cla ims is a mix of misst atements and omissi ons which leads t o . . . inconsi stenci es and diffi culti es.” Castellano v. Fragozo , 352 F.3d 939, 949 (5th C ir. 2003) (en ba nc). 

### 8 questions , we ask wha

t preci sely

Backof was r

equired t o allege 3 

### to make out a well-pled claim for mal icious pr

osecuti on. 4 

### We would ordi

narily begin this

analysis by

recit ing the el ements of a § 1983 malicious prosec

ution claim in our Circuit. Unfortunately, we have y et to delineate a concise test of th at sort. 5 

### We have, however, i dentifie d severa l elem ents es sentia

l to a § 1983 mali cious pros ecution c laim . At a m inimum, a plai

ntiff must alle ge (1)6 Fo r ex am pl e, Ba ck of ma y se ekt o e st ab l i sha d en i alof pr oc edur aldu e p r oc es s. We suggeste d in Ga llo v. C ity of Ph iladelp hia , 161 F.3d 217, 222 (3d Cir. 199 8), that a Fourth Amendment viol ation i s a necess ary predicate to a

§ 1983 clai m for malici ous prosecut ion, t

hough without hol ding that a violation of pr ocedural due process would not support a malici ous prosecution cla im under § 1983. Eight day s lat er, i n Torres v. McLa ugh lin , 163 F.3d 169, 172 (3d Cir. 1998), we deal t with t his i ssue and i nterpr eted Albr ight as provi ding “that a section 1983 cla im may be bas ed on a consti tuti onal pro visio n ot her than the F our th A me ndm ent,” inclu din g pr oce dur al du e pr oce ss. Torres wa s no neth eles s de cide d on Fo urth Am end me nt g rou nds

. 7 Ba cko f m ust d em ons trate that h e is a ctua lly inno cen t. He ctor v. Watt , 235 F.3d 154, 156 (3d Cir. 2000) (holding that a plaint iff in a § 1983 malicious prosecution action “must be innoc ent of the crim e charged in the unde rlying prosecution”).

8 Backof has all eged the t hird el ement, albeit in minimal det ail. Paragraphs 1 and 34 of his complaint note t

hat the charges aga inst

him were adminis trat ively dismis sed in June 1999. The Appellat e Divisi on of the New Jersey Superior Court has hel d, for pur poses of New Jersey l aw, that

“administ

rati ve dismis sal i s a favorabl e termi nation of a crimi nal proceedi ng for purpose s of a mali cious pr osecuti on acti on. Disagr eements as t o the act ual circumst ances of the withdrawal or abandonment of t he prosecut ion must be r esolved by the trier of fa cts. ” Rubin v. Nowak , 590 A.2d 249, 251 (N.J. App. 1991). Whil e the administ rati ve dismis sal may

sati sfythe act

ual innoc ence requi rement, “not al l cases where the pros ecutor a

bandons cri minal char ges are cons idered t o have ter minated favorabl y. ” Hilfirty v. Shipman , 91 F.3d 573, 579-80 (3d Cir . 1996) ( disappr oved on other gr ou nd s b y Merkle v. Upper D ublin Sch. Dist ., 211 F.3d 7 82 (3d C ir. 2000)). Nonetheless , we assume that Backof has satis fied this re quirement in the a bsence of 

### 9 deprivat ion of liber

ty (or perha ps some other constituti onal right 6 

### ) separ ate from substantive d ue process, Albright v. Oliver , 510 U.S. 266, 271 n.4 (19 94); (2) an absence of prob able cause fo r initiation of the criminal proceed ings, Montgomery v. De Simone , 159 F.3d 120, 124 (1998); and (3) te rmina tion or re versal of crim inal proc eedings by reason of the plaintiff’s innocence, 7 

### Heck v. Humphrey , 512 U.S . at 484; Smith , 87 F.3d at 110. Backof h as failed to allege at least the first of th ese necessary elements. 8 

### In orderevidence “t o suggest t hat the prosecut or acte d as he did for any r eason other

than a car eful determi nation of

plaintiff’s innocence. ” Rub in , 590 A.2 d at 2 51.

9 M oreo ver, B acko f has not ad equa tely alleged that C orbley an d So ulias pa rticipated in deprivi ng him of his r ights . While he named the two indi viduals as defendant s, Backof did not des cribe t

heir i nvolvement i n his pros ecuti on. For exampl e, he might have ind icate d in his c om plain t that So ulias sign ed th e crim inal s um mo ns a nd c om plain t. Backof’s counselsuggeste d at oralargument that the defendants were otherwis e involve d in B ack of’ s pro sec utio n; if s o, th ese fac ts sh oul d be set o ut in the a me nde d co mp laint

. 

### 10 to stat e a cla im for m alici ous prosec

ution under § 1983, Backof must alle ge depriva tion of a qualif

ying constitutional rig ht. Donah ue v. Gavin , 280 F.3d 371, 378 (3d Cir. 2002). Followi

ng the Suprem

e Court’s 1994 decisi on in Albright, we concluded that “prosec ution without

probable c ause is

not, in and of i

tself, a consti

tutional tort. I nstead, the constitutio nal violation is the deprivatio n of liberty accompanying the p rosecution. Thus . . . a

plainti ff asser

ting a malici ous prosec

ution cla im m ust show som

e depriva tion of liberty consistent with the concept of seizure .” Gallo v. City o f Philadelp hia , 161 F.3d 217, 222 (3d Cir. 1998) (inte rnal quota

tions and c itati ons omit

ted). I n Gallo , the

plai ntiff was rel eased on a

personal recogniz ance bond. He

was never

arrested, det

ained, or handcuffed. Asa conditi on of his rel ease, however, he was prohibi

ted from travel ing outside New Jersey and Pennsylvania. Moreo ver, he was req uired to communicate w ith pretrial ser

vices on a weekly

basis. Our Court concluded that these restraints on Gallo’s liberty amounted to a seizure, though it deemed this “a close question.” Id . at 222. Ba ck of ha s n ot so fa r a ll eg ed si mi la r r es tr ai nt s o n h is li be rt y. 9 

### Not only must Ba ckof demonstrate

that he wa s deprive d of a qualify ing

### 11

constitutional right under color of state l aw, but he also must prove that the c ounty acte d without p robable cau se in initiating criminal p roceedings a gainst him. Montgo mery , 159 F.3d at 124. I

n frami ng his fifth c ause of action—a st ate-l aw mal icious pr

osecuti on claim—Backof alleged that “[t]here was no probable cause to either conduct the se arch of [his] home or to institute the crim inal proceedings against him .” He did not, however, incorpora te this paragra ph into his fi

rst or s ixth caus es of act

ion, which a

re the c auses of action pertainin g to § 19 83. Whether Backof must also a

llege t he comm on law elements

of a mal icious prosecution claim i s a question for another day . Our law on this issue is unclear . In Gallo , 161 F.3d at 222 n. 6, we suggested that “a plai ntiff would not ne ed to prove a ll of the common law elements of the tort in ord er to recover in federal cou rt.” Similarly, in Smith , 87 F.3d at 114, we ca utioned th at “Heck should not be r

ead to inc orporate

all of the common law of

malicious prosecutio n into the f ederal law go verning civ il rights cases of this kind.” See also Mo ntgomery , 159 F.3d at 124. We nonethe less r ecite d a common law test witho ut acknow ledging th e changed standard, po st- Albright, in Estate of Smith v. Marasco , 318 F.3d 497, 521 (3d Cir. 2003):

To prove malicious prosecuti on under s ection 1983, a p laintiff must showthat: (1) the def

endants initia ted a crim

inal proc eeding; (2) the criminal proceeding endedin plaint iff’s favor ; (3) the

proceedi ng was initiated without proba

ble caus e; (4) t

he defenda nts acted maliciously or for a purpose

other tha n bringing the

plaintiff to justice; and (5) the plai ntiff suffered de

privati on of libert

y c onsiste nt with the c oncept of seizure as a conseq uence of a legal proceed ing.10 For example, there i s uncert ainty whether Backof must demonst rate t hat the defendants acted wit

h malice. In Ga llo , 161 F.3d at 222 n.6, we spec ific ally questi oned the continuing validi ty of t he malice requirement, reasoning that “if the harm alleged is a seizur e lacki ng probable c ause, i t is unclear why a plai ntiff

would have to show that the police acted wit

h malice. ” In fact , the Fourth Cir cuit ha s gone so far as to conclude that Sup reme Co urt pre cede nt proh ibits the consi derati on of malice. The Court explained:

We recog nize th at actu al ma lice is an element of a malici ous prosecut ion clai m at common law. And, com mon -l aw principl es “provide the appropriate starting poi nt for” de t ermin ing the elem ents of § 1983 acti ons. However, t he Supreme Court has indicat ed that the reasonableness of a seizure u nder the Fourth Amendment should be analyzed from an objective perspecti ve. . . . Thus, we conclude that the subject ive state of mind of the defe ndant, whether good fai th orill will, is irreleva nt in this c ontex t. Brooks v. Ci ty of Wins ton-Salem, North Carolina , 85 F.3d 178, 184 n.5 (4t h Cir. 1996) (inte rna l citati ons om itted ). 

### 12 Given that

the twent y- three pa

ge opinion in Marasco contains but a one-pa

ragraph discussion of the plaintiff’s claim under § 1983, our quo te may merely be dictum , still leaving unc ertai

n what is r

equired. 10 

### As a practical matter, we urg e Backof, in his amende d compla

int, to a ddress e ach of the c ommon l aw elem ents of malici ous prosecution to the extent possible. While Ba ckof has not a

lleged a ll requi sites

of a § 1983 clai

m base d on mali cious prose cuti on, henonet

hele ss i s shoo ting a

t an i ndete rmi nate tar get. In thi s cont

ext, we

rema nd to allow, if in good fait h possible , an amended plea ding. Whil e leave

to ame nd pleadings under Feder

al Rule of Ci

vil Proce dure 15(a)is gener ally at the di scret

ion of the trial court, Foman v. Davis , 371 U.S . 178, 18 2 (1962 ), the Supreme Co urt clarified in

### 13

Foman that Federal Rule of Civil Procedure 15(a) (“le ave shall be freely given when justice so requires”)is to be construed liberall y: “ If the underlyi

ng facts or circumst

ances relied upon by a plai

ntiff may be a proper subject of relief, he ought to be afforded an opportunity to test

his claim on the m

erits.” Id . at 182. I

n this ca se, Backof did not move for leave to ame nd. We have

held, howeve

r, that while “pr

ocedure[s ] for obtaini

ng leave

to ame nd pleadings

set fort h in Rule 8 of the

Fed. R. Civ. P. should gene rally be heeded, . . . rigi d adherenc e to formaliti es and te chnical ities must gi ve way before the policies underly

ing Rule 15.” Heyl &

Patters on Intern. , Inc. v. F. D. Rich Housing of Virgin Islands, Inc. , 663 F.2d 419, 426 (3d Cir. 1981). III. Conclusion A § 198 3 claim filed in New Jersey and based on maliciou s prosecution is timely if it is filed within two y

ears of the dismis sal of criminal charges. While we conclude that Backof’s c omplai

nt does not c

urrentl y a llege s ufficient facts t o state a clai m for malicious prosecutio n under § 1983, th e facts he has su pplied to o ur Court, p roperly formulated, mi ght survive a motion to dismis s or for summary judgment. We therefore vacate the District Co urt’s ruling an d remand for it to permit Backof to amend his complaint. Garth, Ci rcuit J udge, concur

ring The recor d in this c ase does

not revea

l any of the ess ential

elements of a § 1983 malicious prosecutio n claim. See Dona hue v. Gav in, 280 F.3 d 371 (3 d Cir. 200 2); Gallo

### 14

v. City of Phila delphia, 161 F.3d 217 (3d Cir. 1998). Hence, it is not surprisi ng that neither at oral arg ument nor in h is brief did B ackof assert th ese required elements. Accordingl

y, I have re garded his

amende d compla

int as s etting for

th a cla ssic, gardenvari ety state law c laim. Nonetheless, I am

persuaded by the e loquent majority opinion to permit yet another attempt by

Backof to make out a § 1983 malicious prosecution clai m. So rather than depriv e Backof o f the opp ortunity to amend, I concu r in the Cou rt’s judgment.

### 15