BLD-193                                                         NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 14-4723
                                        ___________

                                   IVAN G. MCKINNEY,
                                                Appellant

                                              v.

      PROSECUTOR COUNTY PROSECUTOR'S OFFICE; JAMES F. AVIGLIANO,
        Prosecutor Passaic County; FRANK LORAN, Detective Clifton Police Dept.;
      SGT. BRAKEN, Clifton Police Depart.; CAPT. ROBERT ROWAN, Clifton Police
     Dept.; DET. KOTORA, Clifton Police Dept.; DET, KAMINSKI, Clifton Police Dept.;
    SGT JOHN DOE, Clifton Police Dept. JANE DOE, Court Administrator Clifton Police;
                              HOWARD JOHNSON HOTEL
                        ____________________________________

                       On Appeal from the United States District Court
                                for the District of New Jersey
                              (D.C. Civil No. 2-08-cv-03149)
                           District Judge: Honorable Esther Salas
                        ____________________________________

    Submitted for Possible Dismissal Due to a Jurisdictional Defect and Possible Dismissal
     Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit
                                 LAR 27.4 and I.O.P. 10.6
                                        May 7, 2015
                 Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                               (Opinion filed: May 12, 2015)
                                         _________

                                         OPINION*
                                         _________


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

       Ivan McKinney appeals pro se from a judgment entered against him in a civil

rights case. For the following reasons, we will summarily affirm.

                                             I.

       In June 2008, McKinney, a state prisoner incarcerated at Trenton State Prison in

New Jersey, began this action under 42 U.S.C. § 1983 in the District Court. His claims

arise from his arrest in June 2006 for sexual assault of a minor. McKinney initially faced

several charges pertaining to two minors, was indicted by a grand jury, and subsequently

pleaded guilty to sexual assault of one of the two girls. He originally made § 1983 claims

against several parties involved in different stages of his investigation and prosecution,

including a police supervisor, prosecuting attorneys, medical personnel, a grand jury

witness, and an employee of the hotel where the assault took place. In addition, he

challenged the validity of his arrest, prosecution, and incarceration. McKinney’s second

amended complaint alleged, among other things, that Robert Bracken (incorrectly

identified as “Braken”), a police sergeant, deliberately misrepresented material facts

when obtaining a search warrant for McKinney’s hotel room, and that, because of this,

McKinney was falsely arrested. Specifically, McKinney claimed that Bracken’s affidavit

described McKinney as African-American, despite the earlier description by one of the

complainants of her assailant (to other parties) as Hispanic, and that probable cause

therefore did not exist for his arrest.


                                              2
        In order to better understand McKinney’s allegations, the District Court instructed

him to amend his complaint several times. During this period, the District Court

dismissed with prejudice McKinney’s claims against several defendants. McKinney, for

his part, added other parties as defendants, including Bracken. The suit proceeded

against Bracken alone. Ultimately, he moved for summary judgment, which the District

Court granted. McKinney timely appealed.

                                             II.

        We have appellate jurisdiction under 28 U.S.C. § 1291.1 See Long v. Atl. City

Police Dep’t., 670 F3d 436, 443 (3d Cir. 2012). We exercise plenary review over an

order granting summary judgment. DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004).

Our review over the District Court’s dismissal of several of McKinney’s claims is

plenary. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may summarily

affirm when an appeal presents us with no substantial question. See L.A.R. 27.4; I.O.P.

10.6.


1
 Bracken made crossclaims as well as a counterclaim for his legal fees and costs. The
defendants named in Bracken’s crossclaims were never served or made part of the action,
so the fact that the District Court never formally ruled on the claims poses no obstacle to
our exercise of appellate jurisdiction. See Gomez v. Gov’t. of the Virgin Islands, 882
F.2d 733, 736 (3d Cir. 1989) (citing United States v. Studivant, 529 F.2d 673, 674 (3d
Cir. 1976)). Nor does Bracken’s unresolved counterclaim against McKinney, which
merely sought attorney’s fees and costs for defending this litigation, as decisions on the
merits are final despite unresolved claims for attorney’s fees. See Ray Haluch Gravel Co.
v. Cent. Pension Fund of Int'l Union of Operating Eng’rs & Participating Emp’rs, 134 S.
Ct. 773, 777 (2014).


                                             3
                                             III.

       A. Earlier District Court orders granting motions to dismiss

       McKinney’s first two complaints stated a host of claims under § 1983 against

numerous defendants, who twice moved to dismiss. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Blanket assertions and

conclusory statements by themselves do not suffice to show plausibility. See Renfro v.

Unisys Corp., 671 F.3d 314, 320 (3d Cir. 2011).

              1. Claims dismissed in the September 3, 2008, order

       The District Court properly rejected Davis’ claim against the Passaic County

Prosecutor’s Office. See Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d

850, 855 (3d Cir. 2014) (holding that New Jersey County prosecutor’s offices are

considered state agencies for § 1983 purposes when fulfilling their law enforcement and

investigative – as opposed to administrative – roles). Further, the District Court correctly

held that Defendants Roby and Kane were immune from suit for their actions as

prosecutors in McKinney’s criminal case. Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d

Cir. 1992). The District Court also correctly dismissed McKinney’s claims that the

hospital and one of its supervisors allowed treatment practices that contributed to his

conviction. Among other things, McKinney did not allege facts establishing that either

party had the requisite personal involvement with the victim’s treatment. See Rode v.
                                              4
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). More fundamentally, McKinney’s

allegations against Defendant Russell, the hospital employee who personally examined

the victim, sounded only in negligence, which is not actionable under § 1983. See

Farmer v. Brennan, 511 U.S. 825 (1994). McKinney’s claim for immediate release was

properly denied as a plaintiff may not use § 1983 to challenge the fact of his confinement.

See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

       The District Court dismissed McKinney’s malicious prosecution claims under

Heck v. Humphrey, 512 U.S. 477 (1994), but McKinney’s criminal case was still pending

at the time. Heck does not apply to “an anticipated future conviction.” 2 Wallace v. Kato,

549 U.S. 384, 393 (2007). The Supreme Court has noted that a proper course of action in

a situation like McKinney’s would be for the District Court to stay the adjudication of the

plaintiff’s claim until the end of his criminal proceedings.3 See id. At that time, if the

result was a determination of guilt, the District Court would then dismiss the claim under


2
  Further, to prevail on a malicious prosecution claim under § 1983, a plaintiff must show
that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended
in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the
defendants acted maliciously or for a purpose other than bringing the plaintiff to justice;
and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure
as a consequence of a legal proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521
(3d Cir.2003). Because McKinney’s case was ongoing at the time of the District Court
order, he would not have then been able to satisfy the second element of malicious
prosecution. See Kossler v. Crisanti, 564 F.3d 181, 190 n.6 (3d Cir. 2009) (en banc).
3
  The fact that McKinney pleaded guilty to only one charge as part of a bargain with
prosecutors does not imply a favorable termination of his criminal case, as is required to
make out a claim of malicious prosecution. See Hilfirty v. Shipman, 91 F.3d 573, 580
(3d Cir.1996)) (“A prosecutor's decision to drop charges as part of a compromise with the
accused does not amount to a ‘favorable termination[.]’”).
                                              5
Heck. Id.; see also Dique v. New Jersey State Police, 603 F.3d 181, 187–188 (3d Cir.

2010). As McKinney pleaded guilty to the sexual assault charge in criminal court before

the termination of his case in District Court, thus rendering his claim Heck-barred, we

conclude that the District Court’s earlier, premature dismissal of this claim was harmless

error. See Quinn v. St. Louis Cnty., 653 F.3d 745, 750 (8th Cir. 2011).

              2. Claims dismissed in the January 16, 2009, order

       The District Court correctly dismissed four claims in McKinney’s first amended

complaint. McKinney claimed that “Chief John Doe Farrari” (Bracken’s superior) should

be liable for Bracken’s actions, but liability under § 1983 cannot be predicated on a

theory of respondeat superior. See Rode, 845 F.2d at 1207. As the District Court

concluded, McKinney’s claim against “Jane Doe, Howard Johnson Hotel Clerk,” for

failing to give him a copy of the search warrant, failed because she was not a state actor.

See West v. Atkins, 487 U.S. 42, 48 (1988). McKinney’s claims about the grand jury

testimony of Defendant Loran failed because Loran enjoys immunity for the content of

that testimony. See Briscoe v. LaHue, 460 U.S. 325, 329, 341-43 (1983). The District

Court correctly dismissed McKinney’s slander and libel claims as time-barred, as they

were filed outside the applicable one-year statute of limitations. See N.J. Stat. Ann §

2A:14-3.

       B. District Court’s September 17, 2014, summary judgment order

       We now turn to the District Court’s order that summarily disposed of McKinney’s

remaining claims. Summary judgment is proper where, viewing the evidence in the light
                                             6
most favorable to the nonmoving party and drawing all inferences in favor of that party,

there is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56; Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d

Cir. 2006). Here, McKinney has failed to raise a genuine issue of material fact regarding

the District Court’s decision either on the lawfulness of the search warrant or regarding

the basis for his arrest.

               1. Unlawful search claim

        McKinney argued that Bracken made false statements in his affidavit, thereby

invalidating the search warrant for his hotel room. A search warrant is valid if supported

by probable cause that particular contraband or evidence will be found in a particular

place. Ill. v. Gates, 462 U.S. 213, 238 (1983). To defeat probable cause, a plaintiff must

show that misstatements in a warrant affidavit were “material, or necessary, to the finding

of probable cause,” and were made “knowingly and deliberately, or with a reckless

disregard for the truth.” Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)

(internal citations omitted).4




4
  Section 1983 claims for unreasonable searches and seizures are not categorically barred
by Heck. Heck, 512 U.S. at 487 n.7. Here, McKinney’s claims, if proven, do not
necessarily imply the invalidity of his conviction. McKinney never disputed that he was
in the hotel room with the girls. In fact, he admitted that he had “a statutory rape
relationship” with one of them. Even if McKinney could prevail on his claim that the
search of his hotel room was unreasonable, enough undisputed evidence exists to prevent
the invalidation of his conviction. Accordingly, his unreasonable search claim is not
Heck-barred. See id.
                                             7
       McKinney claimed that Bracken deliberately misstated his race when obtaining

the search warrant for his hotel room. He also claimed that Bracken at one point falsely

described the second minor present as an “eye-witness,” when, in another part of his

affidavit, Bracken stated that she was not in the room when the sexual assault took place.

There is no dispute, however, that the minor was present during the commission of a

number of illegal acts for which McKinney was originally charged (such as giving

alcohol to minors), though McKinney later pleaded guilty only to the sexual assault

charge. She was, therefore, an eye-witness to at least some of the events that Bracken

described in his affidavit. In addition, as the District Court correctly noted, Bracken

sought only a search warrant for a specific hotel room, which both the victim and witness

identified as the scene of the assault. “The Fourth Amendment requires a warrant to

describe only ‘the place to be searched, and the persons or things to be seized’, not the

persons from whom things will be seized.” United States v. Kahn, 415 U.S. 143, 155

n.15 (1974) (quoting United States v. Fiorella, 468 F.2d 688, 691 (2d Cir. 1972)); see

also United States v. Tehfe, 722 F.2d 1114, 1117-18 (3d Cir. 1983) (holding that search

warrants are directed at property, not at persons). McKinney’s race was therefore not a

material fact with respect to the search warrant for the hotel room. See United States v.

Long, 774 F.3d 653, 658-59 (10th Cir. 2014). Notably, McKinney did not dispute the

truthfulness of Bracken’s statements regarding the location of the hotel room, which is

the pertinent material fact in determining whether the warrant was based on probable

cause. Accordingly, the District Court did not err in concluding that the errors or false
                                             8
statements alleged by McKinney were not necessary to the finding of probable cause.

See Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000); Tehfe, 722 F.2d at 1117-18.

              2. False arrest claim

       McKinney’s claim that Bracken had no probable cause to arrest him also fails.5

To hold a police officer civilly liable for false arrest, a plaintiff must plead sufficient facts

to support the inference that “‘no reasonable competent officer’ would conclude that

probable cause exists.” Wilson, 212 F.3d at 786 (3d Cir. 2000) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)). “Probable cause exists whenever reasonably

trustworthy information or circumstances within a police officer’s knowledge are

sufficient to warrant a person of reasonable caution to conclude that an offense has been

committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d

Cir. 2002). A positive identification by a victim witness is usually sufficient alone to

establish probable cause. Wilson, 212 F.3d at 790. Notably, too, indictment by a grand

jury, as here, generally constitutes prima facie evidence of probable cause. Rose v.

Bartle, 871 F.2d 331, 353 (3d Cir. 1989). Here, because McKinney rented the hotel room

during the period that the assault took place and was independently identified from a


5
  This claim is also not categorically barred by Heck. Compare Montgomery v. De
Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (“claims for false arrest and false
imprisonment are not the type of claims contemplated by the Court in Heck which
necessarily implicate the validity of a conviction or sentence”), with Gibson v.
Superintendent, 411 F.3d 427, 451-52 (3d Cir. 2005) (finding Heck rule applies because
the only evidence supporting conviction was found pursuant to a constitutional violation
that was the subject of plaintiff’s § 1983 claim). Here, because ample other evidence
existed in support of McKinney’s arrest, Heck does not apply.
                                               9
photo array by each minor involved in the incident, probable cause existed for his arrest.

The District Court was therefore correct in granting summary judgment to Bracken

regarding the false arrest claim.

                                             IV.

         For the reasons given, we will summarily affirm the judgment of the District

Court.




                                             10
