2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

7-29-2013 

# H o w a r d M o sb y

, J r . v . M a thew O ' B r ie

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 13-1866

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2013

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2013 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" H o w a r d M os b y

, J r . v . M a the w O ' B r ie " (2013). 2013 D e cisio n s . P a pe r 472. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2013/4721

GLD
- 338 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1866

___________ HOWARD JAMES MOSBY, JR. ,

Appellant

v. MATHEW O’BRIE; TODD L. MODENA

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 2

- 1 2

- cv - 0 0543 ) Magistrate Judge: Honorable Cynthia R. Eddy

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) o r Summary Action Pursuant to Third Circuit LAR 27.4 and I

. O

. P

. 10.6 July 18, 2013
Before: FUENTES, FISHER and VANASKIE , Circuit Judges

(Opinion filed : July 29, 2013 )

_________ OPINION

_________
PER CURIAM2

Howard Mosby, Jr. , pro se a nd proceeding in forma pauperis , appeals from the District Court’s dis missal of his complaint

. For the reasons that follow, we will summarily affirm. See LAR 27.4 ; I

. O

. P

. 10.6. Mosby filed a complaint under 42 U.S.C. § 1983 against two arresting offi cers alleging a violation of his Fourth Amendment rights. 1 The defendants filed a motion to dismiss, and Mosby amended his complaint. The defendants renewed their motion to dismiss for failure to state a claim, and Mosby never responded. Before the dead line to file a response passed, Mosby filed a motion for extension of time, which the Magistrate Judge granted . Mosby did not file a response, and eventually the Magistrate Judge entered an order that granted the defendants’ motion to dismiss. 2
We hav e jurisdiction under 28 U.S.C. § 1291. As all parties consented to the Magistrate Judge ’s jurisdiction, Mosby correctly filed his appeal in this Court. See 28
U.S.C. § 636(c ) (3)

. We exercise plenary review over the Magistrate Judge’s dismissal for failu re to state a claim. See Lazaridis v. Wehmer , 591 F.3d 666, 670 (3d Cir. 2010) (per curiam). Dismissal is appropriate where the pleader has not alleged “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Ashcro ft v. Iqbal , 556 U.S. 662, 678 (2009). The standard requires a two

- part analysis, first

1 We construe Mosby’s complaint as alleging false arrest, false imprisonment, and malicious prosecuti on. 2 The February 20, 2013 order granted the motion to dismiss, but the analysis in the opinion is about dismissal for failure to prosecute under Poulis v. State Farm Fire &3

separating the complaint’s factual allegations from its legal conclusions, and second, taking only the factual allegations as true, deciding whether the plaintiff has alleged a plausible claim for relief. See Fowler v. UPMC Shadyside , 578 F.3d 203, 210

- 11 (3d Cir. 2009). We may affirm on any basis supported by the record. Murray v. Bledsoe , 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). Here, the circumstances under lying Mosby’s complaint relate d to a (then pending) criminal case. We may take judicial notice of the resolution of that case. See Gov’ t of the V

. I

. v. Testamark , 528 F.2d 742, 743 (3d Cir. 1976). Mosby ultimately pled guilty to charges stemming from th e arrest at issue here. Commonwealth v. Mosby , CP

- 02

- CR

0002413

- 2012 (Allegheny County Com. Pl.) , available at http:// ujsport al.pacourts.us/. Consequently, he is barred from maintaining an action for a Fourth Amendment violation in securing that arrest , as this suit is an attempt to win in a civil case what he has lost in a criminal one

. See Gi l les v. Davis , 427 F.3d 197, 208

- 09 (3d Cir. 2005) (citing Heck v. Humphrey , 512 U.S. 477 (1994) )

. To maintain a malicious prosecution claim, a plaint iff must s how that the criminal proceeding ultimately terminated in his favor, which means either a victory at trial, a reversal on appeal, expungment, or a successful collateral challenge. See Heck , 512 U.S.
at 486

- 87. Mosby has failed to do so. A false arrest o r false imprisonment claim may be maintained without showing a favorable determination, but only if it does not

Casualty Co. , 747 F.2d 863, 868 (3d Cir. 1984). Because we affirm on the grounds of4

“necessarily impli cate the validity of a conviction or sentence.” Montgomery v. De Simone , 159 F.3d 120, 126 n.5 (3d Cir. 1998); see also Gibso n v. S uperintendent of N.J. Dep’t of L aw & Pub. S afety , 411 F.3d 427, 448 (3d Cir. 2005) (“Fourth Amendment claims can be brought under § 1983, even without favorable termination, if the district court determines that success on the § 1983 claim would not necessarily imply the invalidity of the conviction.”). From Mosby’s complaint, we can only concl ude that absent probable cause, 3 the entirety of the evidence against him in the state court criminal case would have been suppressed. See , e.g. , United State s v. Myers , 308 F.3d 251, 275

- 76 (3d Cir. 2002) (reversing denial of suppression motion where there was no probable cause to arrest)

. Because success in his § 1983 action would necessarily implicate the validity of his conviction, Heck bars his suit, abse nt favorable determination. 4 Finding no substantial question presented by this appeal , we will summarily affirm the judgment of the District Court.

failure to state a claim, we do not reach the alternative basis for the decision. 3 An absence of probable cause is n ecessary to e stablish a § 1983 claim for false arrest. See Dowling v. City of Philadelphia , 855 F.2d 136, 141 (3d Cir. 1988). 4 We note that the same docket we take judicial notice of to acknowledge Mosby’s guilty plea also reflects a PCRA filing. We take no position on the merits of Mosby’s case if he ultimately secures a favorable determination and attempts to refile.