UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL EDWARD ASUNCION,

Plaintiff-Appellant,

v.

THE CITY OF GAITHERSBURG,

MARYLAND; DAVID HUMPTON,

No. 95-1159

Gaithersburg City Manager; CITY

COUNCIL OF GAITHERSBURG; A. P.

YOKLEY, Officer; UNKNOWN POLICE

OFFICERS OF THE CITY OF

GAITHERSBURG, MARYLAND,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

J. Frederick Motz, Chief District Judge.

(CA-93-46-JFM)

Submitted: September 20, 1995

Decided: January 3, 1996

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gary Howard Simpson, Bethesda, Maryland, for Appellant. Paul T.

Cuzmanes, Cynthia L. Ambrose, WILSON, ELSER, MOSKOWITZ,

EDELMAN & DICKER, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael Asuncion filed a complaint alleging that Officer A.P. Yokley, the City of Gaithersburg, Maryland, and others (collectively, the

City) violated his civil rights.1See 42 U.S.C. § 1983 (1988). The

alleged violation stems from the arrest and prosecution of Asuncion

for disorderly conduct after he was stopped for a routine traffic violation. Asuncion argued before the district court that summary judgment on his § 1983 claim was improper because a material issue of

fact existed as to whether Yokley had probable cause to arrest him

and as to whether the prosecutor had probable cause to prosecute him.

Because Maryland law dictates that a prosecution is presumed conclusively to be made with probable cause if an arrestee subsequently is

convicted, even if that conviction is later reversed, see Zablonsky v.

Perkins, 187 A.2d 314, 316 (Md. 1963), the district court granted

summary judgment in favor of the City. On appeal, Asuncion argues

for the first time that he falls under an exception to this rule. For the

reasons discussed below, we affirm.

I.

On December 11, 1991, Yokley stopped Asuncion and issued him

a citation for driving through a red light. After completing the citation, Yokley asked Asuncion to sign the document. Beyond this juncture, the parties' stories diverge widely. Yokley contends that

Asuncion became agitated and began acting irrationally, creating a

disturbance that distracted other drivers on the road, while Asuncion

claims that Yokley began to harass him verbally and physically without provocation. The conflicting versions of the arrest need not con-

_________________________________________________________________

1 Asuncion does not appeal the district court's grant of summary judgment to the City on his state law claims of assault, battery, false arrest,

intentional infliction of emotional distress, and malicious prosecution.

 2
cern us; the germane fact is that the encounter resulted in Yokley's

arrest of Asuncion for disorderly conduct.

After a bench trial before the Montgomery County District Court,

Asuncion was convicted of disorderly conduct. On appeal, a jury

found Asuncion not guilty in a trial de novo in the Montgomery

County Circuit Court. See Md. Code Ann., Cts. & Jud. Proc. § 12-

401(f) (Supp. 1995) (providing that certain criminal appeals from the

state district court are tried de novo before the circuit court). Asuncion subsequently brought this action, asserting false arrest and malicious prosecution as the bases for his claim that the City violated his

civil rights.

II.

Rule 56(c) of the Federal Rules of Civil Procedure requires the district court to enter summary judgment against a party who, "after adequate time for discovery . . . fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and

on which that party will bear the burden of proof at trial." Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion

for summary judgment, the City must establish that:"(1) there is no

genuine issue as to any material fact; and (2) it is entitled to judgment

as a matter of law." Harleysville Mut. Ins. Co. v. Packer, 60 F.3d

1116, 1119 (4th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). If Asuncion fails to offer proof of an

essential element of his case, all other facts are rendered immaterial,

there is no genuine issue as to any material fact, and the City is entitled to judgment as a matter of law. See Celotex , 477 U.S. at 323. We

review a grant of summary judgment de novo. Henson v. Liggett

Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995).

To prove his claim under § 1983, Asuncion must show a malicious

prosecution under Maryland law that resulted in a deprivation of his

constitutional rights. See Goodwin v. Metts, 885 F.2d 157, 160 n.1

(4th Cir. 1989) (stating the same for South Carolina law), cert.

denied, 494 U.S. 1081 (1990). Under Maryland law, the tort of malicious prosecution consists of the following elements:

(a) a criminal proceeding instituted or continued by the

defendant against the plaintiff, (b) termination of the pro-

 3
ceeding in favor of the accused, (c) absence of probable

cause for the proceeding, and (d) malice, or a primary purpose in instituting the proceeding other than that of bringing

an offender to justice.

Brewer v. Mele, 298 A.2d 156, 159 (Md. 1972). Because Asuncion

is unable to prove the absence of probable cause, an essential element

of the tort, we affirm the district court's grant of summary judgment

in favor of the City.2

Under Maryland law, a conviction determines conclusively the

existence of probable cause, regardless of whether the judgment is

later reversed in a subsequent proceeding. Zablonsky, 187 A.2d at

316. Thus, Asuncion's conviction in the Montgomery County District

Court precludes his establishing the absence of probable cause for the

disorderly conduct charge, even though the jury later found him not

guilty in a subsequent trial de novo in the circuit court. See Quecedo

v. DeVries, 321 A.2d 785, 791 (Md. Ct. Spec. App. 1974) (reaching

the same conclusion under similar factual circumstances). Because

Asuncion cannot prove an essential element of malicious prosecution

under Maryland law, he cannot establish his claim under § 1983. See

Bussard v. Neil, 616 F. Supp. 854, 856-57 (M.D. Pa. 1985) (granting

summary judgment to defendant on plaintiff's § 1983 claim based on

malicious prosecution where plaintiff failed to prove absence of probable cause because of an earlier conviction that was later reversed).

On appeal, Asuncion argues for the first time that his case falls

within a narrow exception to the Maryland rule that a conviction

determines conclusively the existence of probable cause: if a conviction is "`obtained by fraud, perjury or other corrupt means,'" the conviction loses its conclusive effect. Zablonsky , 187 A.2d at 316

(quoting Restatement of Torts § 667 (1938)). Asuncion contends that

his disorderly conduct conviction was obtained through the perjured

_________________________________________________________________

2 The probable cause inquiry with respect to the false arrest claim is

essentially the same as the probable cause inquiry with respect to the

malicious prosecution claim because all of the evidence of the crime of

disorderly conduct used to prosecute Asuncion was before the arresting

officer. Accordingly, because we find that there was probable cause to

prosecute Asuncion, there was necessarily probable cause for the arrest.

 4
testimony of Yokley, and therefore he should be allowed to prove the

absence of probable cause. Asuncion's argument is meritless. We first

note that we are not required to address this argument on appeal

because Asuncion failed to argue and raise it in the proceedings

before the district court. See Singleton v. Wulff, 428 U.S. 106, 120

(1976) ("It is the general rule, of course, that a federal appellate court

does not consider an issue not passed upon below."). Second, in any

event, Asuncion's mere recitation of factual inconsistency is insufficient to demonstrate perjury by Yokley during the trial before the

state district court. See United States v. Griley, 814 F.2d 967, 971 (4th

Cir. 1987) (holding that inconsistencies in testimony create, at most,

a credibility question for the jury; they do not establish perjury).

Thus, we reject Asuncion's argument.

III.

Because we find no genuine issue of material fact concerning the

existence of probable cause and because we find Asuncion's belated

perjury argument unavailing, we affirm the district court's grant of

summary judgment in favor of the City.

AFFIRMED

 5