2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-4-2015

Tim Hamborsky v. Thomas O'Barto

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Recommended Citation

"Tim Hamborsky v. Thomas O'Barto" (2015). 2015 Decisions. Paper 556.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-2958

_____________

TIM HAMBORSKY, 

 Appellant

v.

THOMAS O’BARTO; LARRY MEDLOCK 

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-12-cv-00428)

District Judge: Honorable Terrence F. McVerry

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

June 2, 2015

Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.

(Filed: June 4, 2015)

_______________

OPINION

_______________

JORDAN, Circuit Judge.

Tim Hamborsky appeals an order of the United States District Court for the 

Western District of Pennsylvania entering summary judgment against him on his claims 

for malicious prosecution and conspiracy. He specifically argues that the District Court 

 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

erred in finding that there was probable cause to institute a prosecution against him. We 

disagree and will affirm. 

I. Background

A. Factual Background

On November 5, 2008, Hamborsky, who was a Correctional Officer employed by 

the Fayette County Prison, concealed a bag containing snuff tobacco, Vicodin pills, and 

cash in his jacket and smuggled it into the prison. Unbeknownst to Hamborsky, he was 

the target of a sting operation. Erin Spade, an inmate serving a sentence in the prison and 

the person to whom Hamborsky had agreed to deliver the contraband, had previously 

approached the then-Warden, Larry Medlock, with information implicating Hamborsky

in criminal acts. Spade told Medlock that Hamborsky had smuggled contraband into the 

prison for him in the past. Spade suggested that, if Medlock would talk to the district 

attorney about reducing pending charges against him, Spade would work with Medlock 

to expose Hamborsky as a smuggler. 

After his conversation with Spade, Medlock contacted Detective Thomas O’Barto 

of the Fayette County Drug Task Force. Medlock and O’Barto met with Spade, and 

Spade stated that he could arrange for Hamborsky to smuggle drugs and tobacco into the 

prison. The three of them agreed to arrange an undercover effort to catch Hamborsky. 

Spade met with Hamborsky and instructed him to pick up a package on November 

5, 2008, that would be concealed underneath a newspaper vending machine near the 

Fayette County Courthouse, which was close to the prison. At around 11:30 p.m. on the 

appointed day, Hamborsky retrieved the package. It contained tobacco, four Vicodin 
3

pills, and $75 in cash. Hamborsky concealed the package in the left shoulder of his coat 

and proceeded into the prison. Once he was inside the prison, Medlock and O’Barto 

stopped and escorted him to the office of then-District Attorney Nancy Vernon. 

Hamborsky admitted to bringing the package into the prison for Spade but he denied 

knowing illegal drugs were in the package. He was then arrested, questioned, and 

eventually arraigned by video and freed on bond pending trial. 

Hamborsky was charged in state court with possession of a controlled substance, 

possession with intent to deliver a controlled substance, and transporting contraband. At 

the preliminary hearing, Spade gave the following testimony: 

Q: What did you tell the officer? 

A: That I can have Mr. Hamborsky bring some tobacco or whatever I 

basically wanted him to bring in. 

Q: Now, what did you mean by “or whatever I basically wanted him to 

bring in”? 

A: Drugs or tobacco or snuff or whatever. 

(App. at 352-53.) Important to Hamborsky’s argument in this case, Spade also offered 

the following testimony:

Q: Had you informed the officer that he had done this in the past? 

A: I have heard it in the jail. He never brought it to me in the past, but I 

heard it in the jail, yes. 

(Id. at 353.)

The matter went to trial and the jury returned a verdict of not guilty. 
4

B. Procedural History

Hamborsky initiated this action on April 3, 2012, asserting claims against 

Medlock, O’Barto, Vernon, and Fayette County. The Complaint raised five causes of 

action: (1) a claim under 42 U.S.C. § 1983, based on the Fourth and Fourteenth 

Amendments, for malicious prosecution; (2) fabrication of false evidence; (3) a 

conspiracy claim; (4) state-law claims for malicious prosecution against Vernon, 

Medlock, and O’Barto; and (5) a claim under Monell v. Department of Social Services of 

New York City, 436 U.S. 658 (1978), against Fayette County. On September 4, 2012, the 

defendants moved to dismiss. In lieu of responding, Hamborsky agreed to voluntarily 

withdraw his fabrication-of-false-evidence claim and dismiss all of his claims against 

Vernon and Fayette County. On November 16, 2012, he filed an Amended Complaint

asserting three causes of action: (1) a section 1983 malicious prosecution claim against 

O’Barto; (2) a section 1983 conspiracy claim against Medlock and O’Barto; and (3) a 

state-law malicious prosecution claim against O’Barto. 

After the close of discovery, Medlock and O’Barto moved for summary judgment, 

which the District Court granted. The District Court noted that, at the time Hamborsky 

was charged, “O’Barto knew that Plaintiff had discussed bringing some type of 

contraband into the prison for Spade ...; he knew that Plaintiff retrieved a bag from under 

the newspaper vending machine and brought it into the prison; and he discovered that the 

bag contained Vicodin, which is a controlled substance under Pennsylvania law.” (App. 

at 9.) “Viewing the circumstances from the perspective of an objectively reasonable 

officer,” the District Court stated that “there was probable cause for [Hamborsky’s]
5

prosecution” and, as a result, his “malicious prosecution claims must fail.” (Id. at 9, 12.) 

In addition, because Hamborsky failed to establish an underlying violation of his 

constitutional rights, the District Court concluded that Medlock and O’Barto were also 

entitled to summary judgment on the section 1983 conspiracy claim. Hamborsky timely 

appealed. 

II. Discussion1

In order to make out a claim of malicious prosecution under the Fourth 

Amendment,2a plaintiff must prove that the defendant initiated a criminal proceeding,

the criminal proceeding ended in the plaintiff’s favor, the proceeding was initiated 

without probable cause, the defendant acted maliciously or for a purpose other than 

 

1 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. 

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s 

grant of summary judgment de novo, Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d 

Cir. 2007), and must view the facts in the light most favorable to the non-moving party, 

drawing all reasonable inferences and resolving all doubts in favor of that party, Doe v. 

County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001). Summary judgment is 

appropriate “if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only 

disputes over facts that might affect the outcome of the suit under the governing law will 

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). “Where the record taken as a whole could not lead a rational trier 

of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation 

marks omitted). 

2 Hamborsky’s complaint also invokes the Fourteenth Amendment in his claim for 

malicious prosecution. Medlock and O’Barto argue that it is probably premised on a 

substantive due process violation, which cannot form the basis for a malicious 

prosecution claim under section 1983. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 

792 (3d Cir. 2000). We think that, instead, Hamborsky is citing the Fourteenth 

Amendment simply for its incorporation of the Fourth Amendment against the state-actor 

defendants. 
6

bringing the plaintiff to justice, and the plaintiff suffered a deprivation of liberty 

consistent with the concept of “seizure” as a consequence of a legal proceeding.3 DiBella 

v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). 

Hamborsky argues that the District Court erred by taking the probable cause 

inquiry away from a jury because the facts of this case strongly suggest that there was no 

probable cause to initiate the prosecution. He asserts that the following facts, when 

viewed in a light most favorable to him, preclude entry of summary judgment for 

Medlock and O’Barto: “there was no investigation that indicated Hamborsky was 

bringing drugs into the prison”; Spade was a career criminal looking for a deal to reduce 

his exposure to criminal liability; Hamborsky maintained from the time of the arrest that 

Spade never told him there would be Vicodin pills in the bag; Spade had “testified twice” 

that Hamborsky had never provided him drugs before; and O’Barto had good reasons to 

believe that Hamborsky was not aware of the Vicodin pills and he doubted Hamborsky 

knew about the pills. 

Contrary to Hamborsky’s view, the District Court properly entered summary 

judgment against him on the malicious prosecution claims. Simply put, he has not fairly 

addressed the District Court’s opinion nor rebutted its reasons for concluding that there 

 

3 As mentioned above, Hamborsky also asserted a state-law malicious prosecution 

claim against O’Barto. Under Pennsylvania law, the first four elements of the federal 

malicious prosecution claim are identical to the state-law tort claim. Kossler v. Crisanti, 

564 F.3d 181, 186 n.2 (3d Cir. 2009) (en banc). As a result, the analysis of those

elements of the federal claim applies equally to the Pennsylvania tort claim. 
7

was probable cause to prosecute him.

4

 In order for his malicious prosecution claims to 

survive summary judgment, Hamborsky was required to produce evidence that he was 

prosecuted without probable cause; that is, that there was no “reasonable ground for 

belief of guilt.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks 

omitted). The following facts, which were before O’Barto and Medlock at the time the 

prosecution was commenced, confirm that there was probable cause to prosecute 

Hamborsky for the charged crimes: Spade contacted Medlock to inform him that 

Hamborsky was smuggling contraband into the prison; Spade told Medlock that 

Hamborsky would provide him with anything, including controlled substances; Spade 

told Medlock that Hamborsky had delivered contraband to him in the past; Medlock had 

suspicions about Hamborsky because he had intercepted inmate communications that 

referenced a person named “Tim” or “Hambone” as a correctional officer who provided

contraband to inmates; O’Barto met with Spade and, subsequently, Spade arranged for 

Hamborsky to smuggle contraband into the prison; O’Barto viewed video surveillance 

and witnessed Hamborsky perform all of the acts Spade told O’Barto that he would ask

Hamborsky to perform; and O’Barto viewed video surveillance and witnessed 

Hamborsky conceal the package in his jacket and carry it into the prison. 

Hamborsky does not dispute any of those facts. Instead, he argues that they are 

insufficient to create reasonable grounds for believing that he was guilty of the charged 

crimes given his repeated statements that Spade never told him that the bag would 

 

4 Because we conclude that there was probable cause to prosecute, we need not 

address the parties’ other arguments as to malicious prosecution or qualified immunity. 
8

contain Vicodin and given his subsequent acquittal at trial. Hamborsky also focuses on a 

factual discrepancy that he believes creates a genuine issue of material fact: O’Barto and 

Medlock both said that Spade told them that Hamborsky brought him drugs in the past, 

but Spade testified at the preliminary hearing and at trial that he had not previously 

received drugs from Hamborsky. 

We do not agree with Hamborsky’s arguments. First, while Spade was not 

completely credible and may even have lied to O’Barto when he told O’Barto that he had 

arranged for Hamborsky to smuggle narcotics into the prison, the fact remains that Spade 

told O’Barto that he did so and Hamborsky actually did smuggle narcotics into the prison

during the sting. O’Barto’s belief that Hamborsky was guilty of the charged crimes was 

reasonable. Second, while it is true that, at the preliminary hearing, Spade recanted a 

statement he allegedly made to Medlock and O’Barto – namely, that Hamborsky had 

previously smuggled contraband for Spade – that recantation came later. When the 

decision to prosecute Hamborsky was made, Spade’s claim was both credible and 

unrebutted. Indeed, Spade got Hamborsky to do precisely what Spade had said he had 

done before. After witnessing Hamborsky pick up a bag containing tobacco, Vicodin, 

and $75 cash and then surreptitiously carry it into the prison, there were reasonable 

grounds for O’Barto and Medlock to believe that Hamborsky was guilty of the charged 

crimes. Therefore, probable cause existed to institute the prosecution, and Hamborsky’s 

malicious prosecution claims fail. 

Given our conclusion that the malicious prosecution claims fail, Hamborsky’s 

conspiracy claim must also fail because there is no underlying violation of his 
9

constitutional rights, which is a prerequisite for conspiracy liability. See In re Orthopedic 

Bone Screw Prods. Liab. Litig., 193 F.3d 781, 789 (3d Cir. 1999) (stating that “civil 

conspiracy requires a separate underlying tort as a predicate for liability”). 

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s entry of summary 

judgment against Hamborsky.