                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                               No. 13-4797
                               ___________

                     JUSTIN MICHAEL CREDICO,
                                       Appellant

                                     v.

                       WEST GOSHEN POLICE;
          DETECTIVE MAURER, Individual & Official Capacity;
         CHESTER COUNTY PRISON AUTHORIZED OFFICIAL
        OVER INMATE ACCOUNTS, individual and official capacity;
                          CHESTER COUNTY;
          UNKNOWN PROSECUTOR FOR CHESTER COUNTY,
                     individual and official capacity;
          MAGISTRATE KRAUT, individual and official capacity;
                UNKNOWN CHESTER CO. SHERIFFS,
                    individual and official capacities
               ____________________________________

              On Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                   (D.C. Civil Action No. 13-cv-01255)
                District Judge: Honorable Juan R. Sanchez
               ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               July 15, 2014
        Before: FISHER, VANASKIE and ALDISERT, Circuit Judges

                       (Opinion filed: July 17, 2014)
                              ___________

                                OPINION
                               ___________

PER CURIAM
       Justin Credico appeals the District Court’s order granting Appellees’ motions to

dismiss his complaint and denying his motion to amend. For the reasons below, we will

affirm the District Court’s judgment.

       The procedural history of this case and the details of Appellant’s claims are well

known to the parties, set forth in the District Court’s memorandum order, and will not be

discussed at length. Credico alleged in his complaint that while walking through a

cemetery, he encountered a plain-clothes detective. Credico raised his middle finger in

an insulting well-known gesture, and the detective gave him a citation for disorderly

conduct. A magistrate found Credico guilty of an upgraded charge of harassment. On

appeal to the Court of Common Pleas, the charges were dismissed on technical grounds.

Credico also claimed that a sheriff struck him on the arm in an elevator and another took

a pencil from him during his trial. The District Court granted Appellees’ motions to

dismiss, and Credico filed a notice of appeal.

       We have jurisdiction under 8 U.S.C. § 1291 and review the District Court’s order

granting the motions to dismiss de novo. Dique v. New Jersey State Police, 603 F.3d

181, 188 (3d Cir. 2010). In order to state a claim, a plaintiff must make sufficient factual

allegations to allow a court to “draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is not

enough for a plaintiff to offer only conclusory allegations or a simple recital of the

elements of a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).


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       Probable Cause

       Most of Credico’s claims—retaliatory prosecution, malicious prosecution, and

retaliation for First Amendment expression—fail if there was probable cause for

Detective Maurer to issue Credico a citation for disorderly conduct. Hartman v. Moore,

547 U.S. 250, 252, 265-66 (2006); McKenna v. City of Philadelphia, 582 F.3d 447, 461

(3d Cir. 2009). Probable cause exists when the facts known to the officer are sufficient to

warrant a reasonable person to believe that the offense has been committed. Orsatti v.

N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). Mere suspicion is not enough for

probable cause, but an officer is not required to have evidence to prove guilt beyond a

reasonable doubt. Id. at 482-83. Generally, the existence of probable cause for arrest is a

question of fact. Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995).

However, a district court may conclude “that probable cause exists as a matter of law if

the evidence, viewed most favorably to the Plaintiff, reasonably would not support a

contrary factual finding.” Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788-89 (3d

Cir. 2000) (internal quotation and citation omitted).

       Credico was cited for disorderly conduct in violation of 18 Pa. Cons. Stat.

§ 5503(a)(4). A person is guilty of disorderly conduct under this subsection if, “with

intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk

thereof, he: . . . creates a hazardous or physically offensive condition by any act which

serves no legitimate purpose of the actor.” See Commonwealth v. Williams, 574 A.2d


                                             3
1161, 1164 (Pa. Super. 1990) (“physically offensive condition” includes direct assaults

on the physical senses of another.)

       At the trial before the Court of Common Pleas of Chester County, Appellee

Detective Maurer testified that he was in the cemetery investigating stolen grave markers

when Credico approached him, giving him the middle finger with both hands and saying

“fuck you, asshole.” When Maurer identified himself as a police officer, Credico said he

didn’t care and was allowed to give him the middle finger. Maurer testified that Credico

was three to five feet away from him and was very agitated. Maurer was alarmed and

concerned that there would be a physical fight. Maurer called for other officers and when

they arrived, Credico continued to argue with them. Maurer testified that Credico was

saying “fuck” very loudly and that cemetery employees forty yards away stopped what

they were doing to watch. Another officer confirmed that as he approached the situation,

Credico was being very vocal and animated and was waving his arms. He had clenched

fists and was aggressive, argumentative, and using very loud and profane language.

       Credico testified and admitted to giving Detective Maurer the middle finger,

cursing at him, and calling him an asshole. He admitted that he got very close to

Detective Maurer. Credico confirmed that the cemetery employees stopped and watched

the confrontation. Credico testified that he had previously been acquitted of disorderly

conduct for giving police officers the finger and purposely sets up officers by giving them

the finger and cursing at them in order to provoke them into stopping him so he can sue

them. The Court of Common Pleas dismissed the charges because the citation was not
                                            4
properly amended from disorderly conduct to harassment. The Court also found that

Credico had approached the officer in a menacing manner.

       The facts known to Detective Maurer were sufficient to warrant a reasonable

belief that the offense of disorderly conduct had been committed. Probable cause

determinations have to be made “‘on the spot’ [and] under pressure.” Paff v. Kaltenbach,

204 F.3d 425, 436 (3d Cir. 2000). By approaching Detective Maurer in a menacing

manner, getting very close to him, and loudly cursing at him—all in the hopes of creating

the basis for a lawsuit—Credico caused Maurer to reasonably believe that he was

creating a physically offensive condition with no legitimate purpose and with the intent to

cause public inconvenience, annoyance, or alarm. See Commonwealth v. Lopata, 754

A.2d 685, 687, 688 (Pa. Super. 2000) (defendant created a hazardous or physically

offensive condition by swearing loudly, knocking over a chair, and swinging his arms

around, causing other students to back away). Thus, there was probable cause to issue

him a citation for disorderly conduct, and his claims against Maurer and the West Goshen

Police Department fail.

       Motion to Amend the Complaint

       Credico argues that he should have been granted leave to amend his complaint to

include a claim against the West Chester Police, Officer Murray, and Officer O’Donnell.

Credico alleged that Officer O’Donnell questioned him after Credico gave him the finger.

No citation was issued. He also alleged that on another occasion, Officer Murray issued

him a citation for disorderly conduct when Credico gave him the finger. A magistrate
                                            5
judge later found Credico not guilty. Credico argued that this constituted malicious

prosecution, abuse of process, deliberate indifference, and failure to train. The District

Court denied the motion to amend with respect to these claims, concluding that the

proposed claims were frivolous because Credico’s gestures were obscene.

       We need not reach the issue of whether the middle finger gesture is obscene, as

Credico’s claims fail on other grounds. To state a claim for malicious prosecution,

Credico must show, inter alia, a deprivation of liberty consistent with a seizure as a

consequence of the legal proceeding. DiBella v. Borough of Beachwood, 407 F.3d 599,

601 (3d Cir. 2005). While pretrial custody and other restrictions can constitute a Fourth

Amendment seizure, attendance at trial does not. Id. at 603. Mere questioning by the

police does not constitute a seizure under the Fourth Amendment. Florida v. Bostick,

501 U.S. 429, 434 (1991). To state a claim for abuse of process, Credico must show that

his prosecution, although it may have been initiated lawfully, was then used for a purpose

not intended by the law. Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989).

       Because Officer O’Donnell only questioned Credico, the allegations against him

fail to state a claim for malicious prosecution or abuse of process. With respect to

Officer Murray, Credico’s allegations of receipt of a citation and attendance at trial do

not state a claim for malicious prosecution, and Credico did not allege any facts to

support an abuse of process claim. Because Credico failed to state any claims against the

officers, he cannot state claims against the West Chester Police Department for failure to


                                             6
train or deliberate indifference. Thus, the District Court did not abuse its discretion in

denying him leave to amend.

       Other Claims

       Credico challenges the District Court’s dismissal of his claim against a sheriff who

took away his pencil at the end of his trial in the Court of Common Pleas. Credico

contends that this action constituted a denial of access to the courts. He states that the

pencil was taken away while he was expressing his anger at being prosecuted; however,

this was at the end of the hearing after the court had dismissed the charges. Credico has

not shown that the removal of his pencil infringed his ability to bring a legal claim.

Lewis v. Casey, 518 U.S. 343, 351 (1996).

       Credico also argues that the District Court erred in dismissing his claim against

Deputy Reeves for slapping him on the arm. We agree with the District Court that this

action did not constitute excessive force. See Hudson v. MacMillan, 503 U.S. 1, 9 (1992)

(not “every malevolent touch by a prison guard gives rise to a federal cause of action”).

       For the reasons above, we will affirm the District Court’s judgment.




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