NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-1555

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LEO TARR,

Appellant

v.

CITY OF PITTSBURGH, a municipal corporation; 

ANTONIO RUIZ, individually; GLENN CUMMINS, individually

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2:16-cv-01424)

District Judge: Honorable Mark R. Hornak

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 27, 2019

Before: SHWARTZ, RESTREPO and RENDELL, Circuit Judges

(Opinion filed: January 21, 2020)

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OP I N I O N*

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PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Leo Tarr appeals pro se from an order of the United States District Court for the 

Western District of Pennsylvania, which granted the defendant’s motion for summary 

judgment in a civil rights case brought pursuant to 42 U.S.C. § 1983. We will affirm the 

District Court’s judgment. 

Because we write primarily for the parties, we will recite only the facts necessary 

for our discussion. In October 2015, Tarr called 911 to report that his next door 

neighbor, James Montgomery, had hit him in the head with a brick. Officer Antonio 

Ruiz, along with several other police officers from the City of Pittsburgh, responded. 

After investigating, Officer Ruiz prepared an affidavit of probable cause for Tarr’s arrest 

on charges of aggravated assault and harassment. Tarr was arrested pursuant to an 

authorized arrest warrant, but the charges were later dismissed. 

Tarr, with the assistance of counsel, filed a complaint, which he later amended. In 

the operative second amended complaint, he raised claims of, inter alia, false arrest and 

malicious prosecution against Officer Ruiz.1 Officer Ruiz filed a motion for summary 

judgment, arguing, inter alia, that there was probable cause for Tarr’s arrest. The District 

Court agreed with Tarr that Officer Ruiz recklessly omitted facts from, and 

misrepresented information within, the affidavit. But the District Court concluded that 

the affidavit, reconstructed to correct those errors, still established probable cause for 

 

1 Tarr also named as defendants Officer Glenn Cummins and the City of Pittsburgh, but 

he later stipulated to the dismissal of those defendants.

 
3

Tarr’s arrest and prosecution.2 Accordingly, the District Court granted Officer Ruiz’s 

motion for summary judgment. Tarr appealed pro se. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

over the District Court’s order granting summary judgment. See Saldana v. Kmart Corp., 

260 F.3d 228, 231 (3d Cir. 2001). Summary judgment is proper when, viewing the 

evidence in the light most favorable to the nonmoving party and drawing all inferences in 

favor of that party, there is no genuine dispute as to any material fact and the moving 

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. County

of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006). A genuine dispute of material fact exists 

if the evidence is sufficient for a reasonable factfinder to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

To prevail on his false arrest and malicious prosecutions claims, Tarr must 

establish that his arrest was not supported by probable cause. See Dowling v. City of 

Phila., 855 F.2d 136, 141 (3d Cir. 1988) (stating that “[t]he proper inquiry in a § 1983 

claim based on false arrest . . . is not whether the person arrested in fact committed the 

offense but whether the arresting officers had probable cause to believe the person 

arrested had committed the offense.”); Wright v. City of Phila., 409 F.3d 595, 604 (3d 

Cir. 2005) (explaining that “[t]o prevail on [a malicious prosecution] claim, [the plaintiff] 

must show that the officers lacked probable cause to arrest her”). “Probable cause exists 

 

2 The District Court also held that Officer Ruiz was entitled to qualified immunity. Given 

our conclusion below that Tarr failed to make out a constitutional violation, we need not 

decide whether Officer Ruiz is otherwise entitled to qualified immunity. 
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where the facts and circumstances within the arresting officer’s knowledge are sufficient 

to warrant a reasonable person to believe an offense had been committed.” United States 

v. McGlory, 968 F.2d 309, 342 (3d Cir. 1992). In general, “the question of probable 

cause in a section 1983 damage suit is one for the jury.” Montgomery v. De Simone, 159 

F.3d 120, 124 (3d Cir. 1998). A district court, however, may conclude that probable 

cause exists as a matter of law and grant summary judgment if the evidence, when 

viewed in the light most favorable to the plaintiff, would not reasonably support a 

contrary factual finding. See Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).

Where, as here, an arrest is made pursuant to a warrant, “[a] plaintiff may succeed 

in a § 1983 action for false arrest . . . if [he] shows, by a preponderance of the evidence: 

(1) that the police officer ‘knowingly and deliberately, or with a reckless disregard for the 

truth, made false statements or omissions that create a falsehood in applying for a 

warrant;’ and (2) that ‘such statements or omissions are material, or necessary, to the 

finding of probable cause.’” Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) 

(quoting Sherwood, 113 F.3d at 399). The District Court properly concluded that Officer 

Ruiz recklessly omitted and misstated facts in the probable cause affidavit.3 

Consequently, the District Court performed a word-by-word reconstruction of the 

 

3

In particular, the District Court held that the probable cause affidavit (1) “falsely 

state[d] that [Tarr’s] head injury was self-inflicted from hitting his head on a retaining 

wall” and (2) omitted: (a) a summary of what Tarr reported in the 911 call; (b) a witness 

statement suggesting that Montgomery was the aggressor and Tarr was acting in selfdefense; (c) the fact that Officer Ruiz did not inspect the retaining wall where Tarr 

allegedly hit his head; and (d) the fact that the altercation took place on Tarr’s property.
5

affidavit and then reassessed the probable cause determination. See Dempsey v. 

Bucknell Univ., 834 F.3d 457, 470 (3d Cir. 2016). When reconstructed to account for 

those omissions and misstatements, the probable cause affidavit read:

On 10/26/2015, at 1241 hours Leo Tarr called 911 to report that his neighbor, 

James Montgomery, assaulted him with a brick and reported that he is bleeding 

profusely. At 1300 hours, I, PO Antonio Ruiz was dispatched to [] Lakewood 

Street for a reported assault in progress. Upon arrival [five other police officers] 

were on scene with actor/victim separated. I first spoke with [James] 

Montgomery, resident of [] Lakewood Street. Montgomery told me [that] shortly 

before Officers arrived, he was confronted by his neighbor from [] Lakewood, Leo 

Tarr. Montgomery told me that he and Tarr had a verbal altercation over a parking 

spot. Montgomery told me Tarr lunged at him with a brick, attempting to strike 

him with it. Montgomery, fearing for his safety, told me he pushed Tarr off of 

him, acting in self defense [sic]. When Montgomery pushed Tarr away from his 

person, Montgomery told me Tarr fell backward and struck his head on a retaining 

wall on Tarr’s property. I did not examine the retaining wall.

Montgomery reported Tarr lunged at him a second time, again with a brick, 

attempting to strike him. Montgomery, fearing for his safety, told me he pushed 

Tarr away in self defense [sic]. Montgomery told me after pushing Tarr away the 

second time, he ran into his home.

I spoke [with] Robert Rizzo, and John Bailey who witnessed the altercation while 

doing construction work across the street. Rizzo did not see the altercation begin 

but described both men as aggressors swinging at each other. Rizzo saw an object 

in Tarr’s hand but could not identify it. Rizzo reported that the fight ended when 

Montgomery hit Tarr in the head with a brick on Tarr’s porch.

City Medic 3 transported Tarr to Mercy Hospital for further treatment. 

Montgomery was not injured during the altercation, but expressed concern for his 

safety, as the actor is his next door [sic] neighbor.

Due to the facts and circumstances surrounding this incident, I will request for the 

arrest of Leo Tarr.
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We agree that this “‘corrected’ warrant affidavit . . . establish[ed] probable cause”

to arrest Tarr for aggravated assault and harassment.4 Wilson, 212 F.3d at 789. Under 

Pennsylvania law, “[a] person is guilty of aggravated assault if he[,]” inter alia, “attempts 

to cause or intentionally or knowingly causes bodily injury to another with a deadly 

weapon.” 18 Pa. Cons. Stat. Ann. § 2702(a)(4). In addition, “a person commits the 

crime of harassment when, with intent to harass, annoy or alarm another, the person[,]” 

inter alia, “strikes, shoves, kicks or otherwise subjects the other person to physical 

contact, or attempts or threatens to do the same[.]” 18 Pa. Cons. Stat. Ann. § 2709(a)(1). 

Here, the warrant affidavit contained statements from a witness, Rizzo, who saw 

the altercation from across the street. Rizzo stated that Tarr, who had an object in his 

hand, swung at Montgomery. In addition, Montgomery told Officer Ruiz that Tarr was 

the initial aggressor and that Tarr lunged at Montgomery twice with a brick in an attempt 

 

4 Tarr takes issue with several aspects of the reconstructed affidavit. For instance, he 

alleges that it should have omitted all of Montgomery’s statements to the police. But 

Tarr has not demonstrated that inclusion of those statements was improper. In fact, 

contrary to Tarr’s belief, omission of Montgomery’s statements likely would have 

constituted a reckless disregard for the truth. See Dempsey, 834 F.3d at 468 (stating that 

“we [cannot] exclude from the probable cause analysis unfavorable facts an officer 

otherwise would have been able to consider”). Tarr also asserts that additional details 

should have been incorporated into the affidavit. In particular, Tarr claims that the 

affidavit should have noted that “prior to the attack he was taking pictures of 

Montgomery over a court dispute regarding parking,” that “a physical altercation . . . 

initially occurred on the lawn of Tarr’s property,” and that “Montgomery . . . hit Tarr 

over the head a second time.” Notably, though, the corrected affidavit already 

acknowledged that the initial dispute was over a parking spot, that the altercation took 

place on Tarr’s property, and that Montgomery had hit Tarr with a brick. Thus, the 

inclusion of the details identified by Tarr “would not be sufficient to prevent a fact-finder 

from concluding that the reconstructed affidavit still established probable cause.” 

Andrews v. Scuilli, 853 F.3d 690, 703 (3d Cir. 2017). 
7

to hit him. Notably, we have emphasized that “[w]hen a police officer has received a 

reliable identification by a victim of his or her attacker, the police have probable cause to 

arrest.” Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997), abrogated on other grounds 

by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007)). Although Montgomery’s claim that 

Tarr hit his head when he fell into a retaining wall conflicts with Tarr’s 911 call and 

Rizzo’s statement that the altercation ended when Montgomery hit Tarr in the head with a 

brick, the probable cause standard does not require officers to correctly resolve credibility 

determinations or conflicting evidence. Wright, 409 F.3d at 603. Furthermore, there is 

no “[i]ndependent exculpatory evidence or substantial evidence of [Montgomery’s] own 

unreliability” concerning Tarr’s assault. Wilson, 212 F.3d at 790. To the contrary, 

Montgomery’s account of being assaulted by Tarr was corroborated by Rizzo. And even 

if Tarr acted in self-defense and Montgomery also committed a crime, probable cause 

still existed. See Paez v. Mulvey, 915 F.3d 1276, 1286 (11th Cir. 2019) (holding that “an 

affirmative defense to an alleged crime does not necessarily vitiate probable cause”).

In sum, viewing the evidence in the light most favorable to Tarr, we conclude that the 

District Court properly granted summary judgment on Tarr’s false arrest and malicious 

prosecution claims on the basis that the corrected affidavit was sufficient to establish 

probable cause. Accordingly, we will affirm the District Court’s judgment.