                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2002

Gordon v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2948




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Recommended Citation
"Gordon v. Philadelphia" (2002). 2002 Decisions. Paper 459.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/459


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                                                   NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                           No:   01-2948

                           MARK GORDON,

                                             Appellant
                                   v.

                     CITY OF PHILADELPHIA;
                     PATRICIA MULLIGAN, IN
                     HER OFFICIAL CAPACITY

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                   (Civil Action No. 01-1630)
            District Judge: Hon. Harvey Bartle, III

                     Argued: July 16, 2002

         Before: McKEE, WEIS and DUHE, Circuit Judges.
                     (Filed July 29, 2002)

GUY VILIM, ESQ. (Argued)
Gold and Vilim
1608 Walnut Street
Suite 1600
Philadelphia, PA 19103
Attorneys for Appellant

NELSON A. DIAZ, ESQ.
City of Philadelphia, Law Department
City Solicitor
ELEANOR N. EWING, ESQ. (Argued)
MARCIA BERMAN, ESQ.
Divisional City Solicitor
Appeals Unit
One Parkway Building
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Attorneys for Appellees


                      OPINION OF THE COURT

McKEE, Circuit Judge.
     Mark Gordon appeals from the district court’s dismissal of his complaint for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).   For the reasons that follow, we
will affirm.
                                I.
      Inasmuch as we write only for the parties, it is not necessary to recite in detail the
factual and procedural history of this case. Rather, it is sufficient to simply note that
Gordon was accused of sexually abusing his stepdaughter following an investigation by a
social worker employed by the City of Philadelphia. Gordon filed an administrative
appeal, and the sexual abuse accusation was formally expunged. Thereafter, he filed a
two-count complaint in the district court. Count One was a 1983 malicious prosecution
claim alleging that the City and the social worker violated Gordon’s substantive due
process rights under the Fourteenth Amendment. Count Two was a state law claim for
malicious abuse of process.
     The district court ruled that the applicable statute of limitations began to run when
Gordon knew he had been falsely accused, not when he was exonerated, and his claim
was therefore time-barred. The court also concluded that Gordon failed to state a claim
upon which relief can be granted because a 1983 malicious prosecution claim is not
cognizable under the substantive due process component of the Fourteenth Amendment.
For reasons that are not readily apparent, Gordon only argues that the district court erred
in holding that the statute of limitations began to run when he was first formally accused.
However, we need not address that because we agree that his claim for malicious
prosecution is not cognizable under 1983. Accordingly, we affirm.
        At the outset, we note that Gordon clearly accuses the City and the social worker
of maliciously prosecuting him. His complaint reads, in relevant part: "In the course of
fighting the battle to clear his name, Mr. Gordon has been investigated and falsely and
maliciously prosecuted as a sexual abuser of children. . . ." Compl. 125 (emphasis
added). Moreover, his 1983 malicious prosecution claim is grounded in the substantive
due process component of the Fourteenth Amendment. He alleges that the City’s and the
social worker’s actions "constitute intentional and reckless disregard of the plaintiff’s
substantive due process rights as guaranteed to them (sic) by the Fourteenth Amendment
Due Process Clause of the United States Constitution." Compl.   133 (emphasis added).
     However, after the Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994), it
is beyond argument that a claim of malicious prosecution under 1983 cannot be based
on substantive due process considerations. Instead, it must be based on a provision of
the Bill of Rights providing "an explicit textual source of constitutional protection." 510
U.S. at 272. Moreover, we have recognized that after Albright a 1983 malicious
prosecution claim cannot be grounded in substantive due process. Torres v. McLaughlin,
163 F.3d 169 (3d Cir. 1998).   Nonetheless, acknowledging that Albright held open the
possibility of bringing a 1983 malicious prosecution claim under the Fourth
Amendment, we have held that a 1983 malicious prosecution claim can be based on the
Fourth Amendment, the procedural due process clause or other explicit text of the
Constitution. Id. at 173. However, here, Gordon’s complaint clearly establishes that his
 1983 action is based only on substantive due process. Therefore, he has failed to state
a claim upon which relief could be granted, and the district court properly dismissed
under Rule 12(b)(6).
                               II.
     For the above reason, we will affirm the district court.


TO THE CLERK OF THE COURT:

          Please file the foregoing Opinion.


                                         /s/ Theodore A. McKee
                                                                    Circuit Judge
