                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6272



GABRIEL A. ANTONIO,

                                              Plaintiff - Appellant,

          versus


JAMES MOORE, Detective,

                                              Defendant - Appellee,

          and


LISA ZANDEL, Magistrate,

                                                         Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-03-1560-1)


Submitted:   January 18, 2006              Decided:   March 9, 2006


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for
Appellant.    Ara L. Tramblian, OFFICE OF THE COUNTY ATTORNEY,
Arlington, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

       Gabriel A. Antonio appeals the district court’s decision to

dismiss his original complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, and its subsequent denial of his

motions to vacate the dismissal and amend his complaint pursuant to

Rule 60 and Rule 15 of the Federal Rules of Civil Procedure.                   In

his original complaint, Antonio brought claims pursuant to 42

U.S.C. § 1983 against Detective James Moore and Magistrate Lisa

Zandel,    asserting     constitutional       violations     arising    from   the

application of unduly suggestive identification procedures and the

issuance of a defective arrest warrant during his underlying

criminal prosecution for robbery.            Following the district court’s

decision    to   grant    Detective     Moore’s    motion     to   dismiss     the

complaint, Antonio moved for reconsideration and leave to amend the

complaint to add new factual allegations underlying his preexisting

claims and substantive due process claims.                 Because we conclude

that   Antonio’s   claims    in   his       original   and   proposed    amended

complaint fail to state a cause of action, we affirm the district

court’s disposition of these motions.



                                      I.

       On December 17, 2003, Antonio, an incarcerated prisoner acting

pro se, filed his original complaint in the Eastern District of

Virginia,    asserting     constitutional       violations     related    to   his


                                        3
ultimate criminal prosecution for robbery.            In substance, Antonio

alleged that Detective Moore violated (1) his Fourteenth Amendment

right   to   due   process    by   applying      unduly   and   unnecessarily

suggestive out-of-court identification procedures; (2) his Sixth

Amendment right to counsel during those identification procedures;

and (3) his Fourth Amendment right to be free from unlawful

seizures by procuring an arrest warrant without probable cause

while investigating the robbery.              Antonio further alleged that

Magistrate Zandel violated (1) his Fourth Amendment right to be

free from unlawful seizures in issuing the warrant; and (2) his

Fourteenth Amendment right to due process by failing to provide the

factual basis on which she issued the warrant, thereby undermining

his ability to challenge the validity of the warrant on appeal.

     In addition to setting forth these claims, the original

complaint stated that Antonio could not finish the complaint based

on his perceived time limitations. As such, he “submitted a motion

to Amend this complaint” and sought “time to amend it, and a

liberal time at that.”       J.A. 13.       The attached motion for leave to

amend the original complaint set forth Antonio’s belief that he

“may need” to amend his claims against the defendants, incorporate

other possible claims, add other defendants and other plaintiffs,

and amend his present claims.      J.A. 23.       Antonio also requested the

appointment of counsel and assistance in serving the original

complaint.


                                        4
     By order dated February 5, 2004 (“February 5, 2004 Order”),

the district court sua sponte dismissed (1) the claims against

Magistrate Zandel based on absolute judicial immunity; and (2) the

claims against Detective Moore without prejudice based on Heck v.

Humphrey, 512 U.S. 477 (1994), because Antonio had not demonstrated

that he had obtained a favorable termination or vacatur of his

guilty plea to the robbery.      The district court also denied as moot

Antonio’s    pending   motions    for       leave   to   amend   the   original

complaint, appointment of counsel, and assistance in serving the

complaint.

     On February 11, 2004, Antonio moved for reconsideration of the

February 5, 2004 Order.     In his motion, he admitted that he had

pleaded guilty to the robbery charge, but asserted that his Section

1983 claims did not implicate the validity of his plea.                After re-

examining Heck, the district court vacated the February 5, 2004

Order on April 27, 2004.     The district court permitted the claims

in the original complaint against Detective Moore to proceed, but

dismissed the claims against Magistrate Zandel as frivolous under

28 U.S.C. § 1915A(b)(1).

     Upon Detective Moore’s subsequent motion to dismiss, however,

the district court dismissed the remaining claims in the complaint

by order dated January 25, 2005 (“January 25, 2005 Order”), which

is the subject of the present appeal. The district court concluded

that the due process claim failed to state a cause of action


                                        5
because any tainted identifications flowing from the allegedly

suggestive identification procedures were not presented at trial.

The district court similarly found that Antonio’s Fourth Amendment

claim failed to state a claim because he had only challenged the

lack of specificity of the probable cause determination, rather

than the validity of the determination itself.         However, the

district court did not explicitly rule on Antonio’s Sixth Amendment

claim.

      Following the district court’s January 25, 2005 Order, Antonio

filed a second motion for reconsideration under Rule 60(b), seeking

to file an amended complaint.   In requesting such relief, Antonio

primarily argued that he had refrained from submitting his amended

complaint because the district court had never ruled on his motion

to amend.   Moreover, he claimed that his failure to submit a copy

of his proposed amended complaint to the district court stemmed

from his erroneous belief that he needed permission prior to doing

so.   At that juncture, Antonio thus attached a lengthy, amended

complaint, which expanded on the factual allegations underlying his

preexisting claims in the original complaint.    Antonio also added

two new claims against Detective Moore, alleging that Detective

Moore violated (1) his substantive due process right to familial

privacy by unduly influencing Antonio’s fiancé to abort their

child; and (2) his substantive due process right to privacy by

arresting him.


                                 6
     On February 28, 2005, the district court simultaneously denied

the motion for reconsideration and leave to amend the complaint

after finding that the amended complaint raised duplicative and

frivolous    claims.     Antonio    now    appeals   the    district   court’s

decision to grant Detective Moore’s motion to dismiss, and its

decision to deny Antonio’s subsequent motions for reconsideration

and leave to amend his original complaint.



                                     II.

                                     A.

     In reviewing the district court’s decision to grant Detective

Moore’s motion to dismiss pursuant to Rule 12(b)(6), we apply de

novo review.      Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th

Cir. 2005).       In examining the sufficiency of the complaint, we

recognize that “a complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.”        Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Moreover, we accept as true all allegations in the complaint and

construe    the    complaint   in   the    light   most    favorable   to   the

plaintiff.     Venkatraman, 417 F.3d at 420.




                                      7
                                    B.

                                    1.

     The original complaint asserted that Detective Moore had

violated Antonio’s Fourteenth Amendment right to due process and

Sixth     Amendment   right   to   counsel   by   applying   unduly   and

unnecessarily suggestive out-of-court identification procedures

outside the presence of Antonio’s counsel.          Because Antonio had

ultimately pleaded guilty to the underlying robbery offense, the

district court dismissed these claims with prejudice, reasoning

that “there is no constitutional right to be free from a suggestive

lineup or photo array as long as the evidence is not used at

trial.”     J.A. 89-90.   We agree that, based on Antonio’s guilty

plea, dismissal was appropriate because the Fourteenth and Sixth

Amendments only protect the defendant against the admission of

unconfronted and unreliable identification evidence at trial.

     The Supreme Court has recognized a panoply of Fourteenth

Amendment and Sixth Amendment protections in the context of illegal

confrontations, as set forth by a trio of decisions, United States

v. Wade, 388 U.S. 218 (1967), Gilbert v. California, 388 U.S. 263

(1967), and Stovall v. Denno, 388 U.S. 293 (1967), all decided the

same day.    Wade declared that the Sixth Amendment right to counsel

protects the accused from standing alone “against the State at any

stage of the prosecution, formal or informal, in court or out,

where counsel’s absence might derogate from the accused’s right to


                                     8
a fair trial.”    Wade, 388 U.S. at 226.   Armed with that principle,

the Court concluded that the defendant is entitled to counsel at a

post-indictment lineup based on the inherent vagaries of eyewitness

identifications and the need for adequate cross-examination at

trial.    Id. at 236-37.1   Gilbert followed Wade by holding that the

admission of in-court identifications “without first determining

that they were not tainted by an illegal lineup but were of

independent origin [is] constitutional error.”     Gilbert, 388 U.S.

at 272.     Finally, Stovall stated that even where the defendant

could not avail himself of the protections of Wade or Gilbert, the

defendant could nevertheless attack his conviction based on a

confrontation that was “so unnecessarily suggestive and conducive




     1
      In Wade, the Court was concerned with the overwhelmingly
prejudicial   effect   of   admitting   eyewitness   identification
testimony, stemming from unnecessarily suggestive identification
procedures, against the defendant. Specifically, the Court stated
that “the confrontation compelled by the State between the accused
and the victim or witnesses to a crime to elicit identification
evidence is peculiarly riddled with innumerable dangers and
variable factors which might seriously, even crucially, derogate
from a fair trial.” Wade, 388 U.S. at 228. Particularly where the
victim is the identification witness and the defendant is reluctant
to take the stand because of his criminal history, the “accused’s
inability effectively to reconstruct at trial any unfairness that
occurred at the lineup may deprive him of his only opportunity
meaningfully to attack the credibility of the witness’ courtroom
identification.”    Id. at 231-32; id. at 235 (“Insofar as the
accused’s conviction may rest on a courtroom identification in fact
the fruit of a suspect pretrial identification which the accused is
helpless to subject to effective scrutiny at trial, the accused is
deprived of that right of cross-examination which is an essential
safeguard to his right to confront the witnesses against him.”).

                                   9
to irreparable mistaken identification that he was denied due

process of law.”      Stovall, 388 U.S. at 301-02.

      The   three   decisions   interlock   to   the    extent   that   they

prescribe prophylactic rules excluding unconfronted or unreliable

eyewitness identification.      See Manson v. Brathwaite, 432 U.S. 98,

112 (1977) (noting that the “driving force” behind Wade, Gilbert,

and   Stovall   was   “the   Court’s   concern   with   the   problems    of

eyewitness   identification”).         Indeed,   in   Stovall,   the    Court

characterized Wade and Gilbert as only fashioning rules “requiring

the exclusion of identification evidence which is tainted by

exhibiting the accused to identifying witnesses before trial in the

absence of his counsel . . . .”             Stovall, 388 U.S. at 294.

Similarly, the Court later described Stovall as “protecting an

evidentiary interest, and at the same time, as recognizing the

limited extent of that interest in our adversary system.”          Manson,

432 U.S. at 113.

      The evidentiary rules created in Wade, Gilbert, and Stovall

thus protect the defendant’s core right to a fair trial.           See id.

at 112 (“Wade and its companion cases reflect the concern that the

jury not hear eyewitness testimony unless that evidence has aspects

of reliability.” (emphasis added)); Stovall, 388 U.S. at 297 (“The

Wade and Gilbert rules are aimed at minimizing [the possibility of

conviction based on mistaken identification] by preventing the

unfairness at the pretrial confrontation that experience has proved


                                   10
can occur and assuring meaningful examination of the identification

witness’ testimony at trial.” (emphasis added)); Stovall, 388 U.S.

at   298   (“The   presence    of   counsel   will   significantly   promote

fairness at the confrontation and a full hearing at trial on the

issue of identification.” (emphasis added)).           Because Wade and its

progeny simply shield the defendant’s right to a fair trial by

precluding     the    admission      of    unconfronted    or   unreliable

identification evidence, only the impairment of the defendant’s

core right--i.e., the right to a fair trial--is “actionable under

§ 1983.”    Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir.

2000); Hensley v. Carey, 818 F.2d 646, 649 (7th Cir. 1987) (“The

rule against admission of evidence from unnecessarily suggestive

lineups is a prophylactic rule designed to protect a core right,

that is the right to a fair trial, and it is only the violation of

the core right and not the prophylactic rule that should be

actionable under § 1983.”).          In other words, unduly suggestive

identification procedures in the absence of the defendant’s counsel

do not, in and of themselves, implicate the defendant’s Fourteenth

or Sixth Amendment rights, as long as the tainted evidence obtained

is not used at trial.         See Alexander v. City of South Bend, 433

F.3d 550, 555 (7th Cir. 2006) (“The Constitution does not require

that police lineups, photo arrays, and witness interviews meet a

particular standard of quality.”); Hensley, 818 F.2d at 648 (“[T]he

procedural safeguards established in Brathwaite and Stovall protect


                                      11
only against the admission of unreliable evidence at trial and [do]

not establish a constitutional right to be free of suggestive

lineups . . . .”).2

     In this instance, Antonio pleaded guilty to the underlying

robbery     charge,    thereby   foreclosing     the   possibility     that

unconfronted or unreliable evidence could be presented at trial.

Moreover, Antonio merely alleged that Detective Moore engaged in

unduly suggestive identification procedures without indicating

whether, and to what extent, they impaired his right to a fair

trial. See Alexander, 433 F.3d at 555 (noting that even where the

plaintiff    alleges   that   some   witnesses   exposed   to   the   flawed

identification procedures testify at his trial, the plaintiff must

show “how those flawed procedures compromised the constitutional

right to a fair trial”); Hutsell v. Sayre, 5 F.3d 996, 1005 (6th

Cir. 1993) (finding no due process violation where plaintiff



     2
      Similarly, the Supreme Court has recently explained that the
prophylactic warnings prescribed in Miranda v. Arizona, 384 U.S.
436 (1966), protect against violations of the Self Incrimination
Clause, which, in turn, “focuses on the criminal trial.” United
States v. Patane, 542 U.S. 630, 637 (2004). In concluding that the
Miranda rule is designed to protect the “core privilege of self-
incrimination,” the Court reasoned that the “police do not violate
a suspect’s constitutional rights (or the Miranda rule) by
negligent or even deliberate failures to provide the suspect with
the full panoply of warnings prescribed by Miranda.” Id. at 638,
641. Indeed, potential violations of a defendant’s constitutional
rights “occur, if at all, only upon the admission of unwarned
statements into evidence at trial.” Id. at 641 (emphasis added).
Moreover, the “complete and sufficient” remedy for a perceived
Miranda violation is the exclusion of such statements at trial.
Id. at 641-42 (internal citations omitted).

                                     12
alleged that evidence premised on impermissibly suggestive lineup

was introduced at his criminal trial but failed to assert any

violation of his right to a fair trial).                  Accordingly, Antonio’s

claims arising under the Fourteenth and Sixth Amendments fail to

state a cause of action and were properly dismissed.3



                                          2.

     The original complaint also asserted Fourth Amendment claims

arising    from     the   arrest   warrant’s         alleged   failure   to    record

Detective Moore’s oral statements to Magistrate Zandel and its

issuance without probable cause.                 The district court dismissed

these     claims,    reasoning     that        the   Fourth     Amendment     permits

magistrates to rely on sworn, unrecorded oral testimony in making

probable    cause     determinations.           We    agree    that   dismissal   was

appropriate.4



     3
      We also note that to the extent that Antonio identified
violations of his right to counsel occurring prior to the
indictment, these allegations fail to state a cognizable claim
because “the right to counsel does not attach until the initiation
of adversary judicial proceedings.” United States v. Gouveia, 467
U.S. 180, 188 (1987).
     4
      Antonio brought Fourth Amendment claims arising out of the
allegedly defective warrant against both Magistrate Zandel and
Detective Moore. Although Detective Moore argued in his motion to
dismiss that these claims could only apply to Magistrate Zandel,
who had already been dismissed from the case because of judicial
immunity, the district court nevertheless considered the merits of
the claims. On appeal, we need not decide whether these claims
could only be asserted against Magistrate Zandel because, in any
event, they lack merit.

                                          13
     “The Warrant Clause of the Fourth Amendment requires that

warrants (1) be issued by a neutral and detached magistrate, (2)

contain a ‘particular[ ] descri[ption of] the place to be searched,

and the persons or things to be seized,’ and (3) be based ‘upon

probable cause, supported by Oath or affirmation.’”              United States

v. Clyburn, 24 F.3d 613, 617 (4th Cir. 1994) (quoting U.S. Const.

amend. IV).      It is settled law in this Circuit that the “Fourth

Amendment does not require that the basis for probable cause be

established in a written affidavit; it merely requires that the

information provided the issuing magistrate be supported by ‘Oath

or affirmation.’”       Id. (quoting U.S. Const. amend. IV).           Moreover,

“magistrates may consider sworn, unrecorded oral testimony in

making probable cause determinations during warrant proceedings.”

Id. (citing cases).        Thus, for these reasons, Antonio’s primary

attack on the probable cause determination underlying the warrant--

i.e., that its failure to record Detective Moore’s statements to

Magistrate Zandel rendered it invalid--fails to state a cognizable

cause of action.

     To the extent that Antonio otherwise challenges the probable

cause determination, his mere allegation that the arrest warrant

was issued “without probable cause” is too conclusory to pass

muster   under   Rule    12(b)(6).      Although      the   “liberal   pleading

requirements”     of   Rule   8(a)   only   require    a    “short   and   plain”

statement of the claim, the plaintiff must “offer more detail . .


                                      14
. than the bald statement that he has a valid claim of some type

against the defendant.”     Trulock v. Freeh, 275 F.3d 391, 405 (4th

Cir. 2001) (internal citations omitted).           Specifically, “[t]he

presence [] of a few conclusory legal terms does not insulate a

complaint from dismissal under Rule 12(b)(6) when the facts alleged

in the complaint do not support the legal conclusion.”            Id. at 405

n.9 (internal quotation marks and citations omitted and alterations

in original).   By repeatedly asserting that the warrant was issued

“without probable cause,” without offering any factual allegations

underlying this legal conclusion, Antonio failed to meet the

requirements of Rule 8(a) or 12(b)(6).           In the absence of any

factual basis for challenging the validity of the warrant, we must

therefore   affirm   the   dismissal    of   Antonio’s   Fourth   Amendment

claims.



                                  III.

                                   A.

     Turning next to Antonio’s motion for reconsideration, we

review a district court’s disposition of a Rule 60(b) motion for

abuse of discretion. United States v. Winestock, 340 F.3d 200, 204

(4th Cir. 2003).     Where the movant seeks to amend the complaint

following judgment, we first examine whether the district court

properly determined whether Rule 60(b) relief was appropriate, and

then address whether the district court abused its discretion in


                                   15
disallowing the amendment under Rule 15(a). 6 Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §

1489 at 695 (2d ed. 1990); Peterson v. Air Pilots Ass’n, Intern.,

759 F.2d 1161, 1165 n.10 (4th Cir. 1985).



                                B.

     Rule 60(b) permits a party to obtain relief from a final

judgment for the following reasons:

     (1) mistake, inadvertence, surprise, or excusable
     neglect; (2) newly discovered evidence which by due
     diligence could not have been discovered in time to move
     for a new trial under Rule 59(b); (3) fraud (whether
     heretofore   denominated   intrinsic    or   extrinsic),
     misrepresentation, or other misconduct of an adverse
     party; (4) the judgment is void; (5) the judgment has
     been satisfied, released, or discharged, or a prior
     judgment upon which it is based has been reversed or
     otherwise vacated, or it is no longer equitable that the
     judgment should have prospective application; or (6) any
     other reason justifying relief from the operation of the
     judgment.

Fed. R. Civ. P. 60(b).   Rule 15(a) provides, in relevant part:

     A party may amend the party’s pleading once as a matter
     of course at any time before a responsive pleading is
     served . . . . Otherwise a party may amend the party’s
     pleading only by leave of court or by written consent of
     the adverse party; and leave shall be freely given when
     justice so requires.

Fed. R. Civ. P. 15(a).    Generally, courts should grant leave to

amend in the absence of “bad faith, undue prejudice to the opposing

party, or futility of amendment.”     United States v. Pittman, 209

F.3d 314, 317 (4th Cir. 2000) (internal citations omitted).



                                16
      We perceive no error in the district court’s decision to deny,

simultaneously, the motion for reconsideration and the motion for

leave to amend based on the duplicative and frivolous nature of the

amended complaint. Even assuming that Antonio met the requirements

of Rule 60(b), he failed to satisfy Rule 15(a).       First, the amended

complaint   reiterated   the   same   Fourteenth,    Sixth,   and   Fourth

Amendment claims as set forth in the original complaint that were

properly dismissed.   Second, the amended complaint failed to raise

any   meritorious   claims.5     In    particular,    Antonio   asserted

violations of (1) his substantive due process right to familial

privacy arising from Detective Moore’s alleged influence over

Antonio’s fiancé, and (2) his substantive due process right to

individual privacy arising from his arrest.          These claims would

both be subject to immediate dismissal as frivolous under 28 U.S.C.

§ 1915A, the statutory screening provision within the Prison

Litigation Reform Act.    See 28 U.S.C. § 1915A(b) (“On review, the

court shall identify cognizable claims or dismiss the complaint, or

any portion of the complaint, if the complaint . . . is frivolous,

malicious, or fails to state a claim upon which relief may be



      5
      In his amended complaint, Antonio further alleged that
Detective Moore falsely told him that his fingerprints and license
plate number had been identified at the crime scene, and that
further, Detective Moore attempted to extract a confession from
him. However, Antonio instantly “refuted and repudiated” Detective
Moore’s statements and actions. J.A. 137. Thus, even assuming,
that Detective Moore’s actions implicated Antonio’s constitutional
rights, he has failed to allege any redressible injury.

                                  17
granted.”).       Accordingly, the district court properly denied both

motions based on futility of amendment.          See HCMF Corp. v. Allen,

238 F.3d 273, 277 (4th Cir. 2001) (proposed amendment was futile

where     added   claim   was   not   legally   cognizable);   HealthSouth

Rehabilitation Hosp. v. American Nat’l Red Cross, 101 F.3d 1005,

1011-12 (4th Cir. 1996) (proposed amendment was futile because

allowing it would have “at most, delayed the inevitable dismissal”

of the plaintiff’s claims).



                                      IV.

        For the foregoing reasons, the district court’s disposition on

the motion to dismiss, motion for reconsideration, and motion for

leave to amend is affirmed.

                                                                  AFFIRMED




                                      18
