                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                             _____________

                              No. 13-1153
                             _____________


                          ANITA PETERSON,

                                Appellant

                                    v.

                ATTORNEY GENERAL PENNSYLVANIA;
SPECIAL AGENT KEVIN COLGAN, BUREAU OF CRIMINAL INVESTIGATIONS
         PENNSYLVANIA OFFICE OF THE ATTORNEY GENERAL;
         FRANK G. FINA, CHIEF DEPUTY ATTORNEY GENERAL;
        WILLIAM A. HELM, CHIEF DEPUTY ATTORNEY GENERAL;
       ROBERT J. O'HARA, SENIOR DEPUTY ATTORNEY GENERAL;
            JAMES REEDER, DEPUTY ATTORNEY GENERAL;
     KELLY KLINE, DEPUTY ATTORNEY GENERAL; DANA KLEINTOP

                            ______________

        APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                 (D.C. Civ. Action No. 3:08-cv-02292)
               District Judge: Honorable Edwin M. Kosik
                            ______________

               Submitted Under Third Circuit L.A.R. 34.1(a)
                          on November 8, 2013
                            ______________

     Before: GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges.

                     (Opinion Filed: January 7, 2014)
                                     ______________

                                        OPINION
                                     ______________


GREENAWAY, JR., Circuit Judge.

       Anita Peterson (“Appellant” or “Plaintiff”) brought an action against Pennsylvania

state officials (“Appellees” or “Defendants”) alleging violation of her constitutional

rights. The District Court granted summary judgment for Defendants and denied

Plaintiff’s Motion for Sanctions. For the reasons discussed below, we shall affirm the

judgment of the District Court.



                                      I. Background

       Because we write primarily for the parties, who are familiar with the facts and

procedural history, we recount only the essential facts. An investigation by the Monroe

County District Attorney’s Office of potential mortgage fraud resulted in a subpoena

being issued to Peterson and her business, Mountain Valley Abstract, Inc. (“Mountain

Valley”). During the investigation, Special Agent Kevin Colgan learned that figures

listed on the HUD-1 settlement statements did not match the check issued at the closing.1

Peterson stated during her grand jury testimony that she never received payment from


       1
        HUD-1 is a settlement sheet mandated by the Real Estate Settlement Procedures
Act (“RESPA”), 12 U.S.C. § 2601. et seq. See Bloom v. Martin, 77 F.3d 318, 319 (9th
Cir. 1996).
                                             2
P&K Developers, but further investigation established that a check issued by P&K

Developers was paid to the order of Mountain Valley.

       Peterson was initially charged in a Pennsylvania state court with nineteen criminal

counts including perjury, false swearing, tampering with public information or records,

and hindering apprehension or prosecution. Eleven counts were dismissed by the

presiding judge at trial. A jury acquitted Peterson on two counts, and was unable to reach

a verdict as to the remaining six counts. Defendants again prosecuted Peterson on three

of the remaining counts, none of which resulted in a conviction.

       Following her acquittal, Peterson commenced the present action against several

Commonwealth of Pennsylvania employees and a private citizen. The remaining issues

on this present appeal are whether the District Court erred in (1) denying Peterson’s

Motion for Sanctions alleging spoliation; and (2) granting summary judgment against

Peterson for claims of false arrest and false imprisonment.



                                     II. Jurisdiction

       The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1343. We have

jurisdiction pursuant to 28 U.S.C. § 1291.




                                             3
                                        III. Analysis

A. Spoliation

         Peterson contends that the District Court erred in denying her Motion for

Sanctions. Peterson alleges spoliation by documenting the litany of failed attempts to

obtain a transcript of Agent Colgan’s grand jury testimony. Sanctions for spoliation of

evidence are reviewed for an abuse of discretion. See In re Hechinger Inv. Co. of

Delaware, Inc., 489 F.3d 568, 574 (3d Cir. 2007).

         Spoliation occurs where “the evidence was in the party's control; the evidence is

relevant to the claims or defenses in the case; there has been actual suppression or

withholding of evidence; and, the duty to preserve the evidence was reasonably

foreseeable to the party.” Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir.

2012).

         Upon a review of the record, we detect no abuse of discretion in the District

Court’s ruling. While Peterson has demonstrated to our satisfaction that the relevant

evidence was not produced, she does not come close to showing the bad faith necessary

to support a claim for spoliation. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326

(3d Cir. 1995), and Bull v. United Parcel Serv., Inc., 665 F.3d 68 (3d Cir. 2012), are

instructive here. In Brewer, we determined that “[n]o unfavorable inference arises when

the circumstances indicate that the document or article in question has been lost or

accidentally destroyed . . . .” Brewer, 72 F.3d at 334. In Bull, we further observed that

                                               4
“a finding of bad faith is pivotal to a spoliation determination.” 665 F.3d at 79. “This

only makes sense, since spoliation of documents that are merely withheld, but not

destroyed, requires evidence that the documents are actually withheld, rather than—for

instance—misplaced.” Id.

       Therefore, we find no abuse of discretion in the District Court’s conclusion that

Defendants could not be sanctioned for spoliation.



B. False Arrest and False Imprisonment

       Peterson claims that the District Court erred in summarily dismissing her claims

for false arrest and false imprisonment under the Fourth Amendment.2 The District Court

found that probable cause existed as a matter of law regarding two of the six charges,

precluding the claim for false arrest or false imprisonment. The two charges were false

swearing under 18 Pa. C.S. § 4903(a)(1) and tampering with public records or

information under 18 Pa. C.S. § 4911(a)(2).

       This Court’s review of the District Court’s order granting summary judgment is

plenary. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). Summary

judgment is granted when, viewing the evidence in the light most favorable to the


       2
         The Fourth Amendment to the Constitution of the United States provides that:
“[t]he right of people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
                                              5
nonmoving party, there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Beers–Capitol v. Whetzel,

256 F.3d 120, 130 n.6 (3d Cir. 2001).

       To establish a claim under 42 U.S.C. § 1983, a plaintiff “must establish that [she]

was deprived of a federal constitutional or statutory right by a state actor.” Kach v. Hose,

589 F.3d 626, 646 (3d Cir. 2009). To prevail on the claims of false arrest and false

imprisonment, plaintiffs would have to demonstrate at trial that the police lacked

probable cause to arrest Peterson.3 The existence of probable cause is determined by

looking at the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983)

(“[W]e reaffirm the totality-of-the-circumstances analysis that traditionally has informed

probable cause determinations.”). Probable cause does not require that the prosecution

have sufficient evidence to prove guilt beyond a reasonable doubt. Rather, probable

cause requires only “a probability or substantial chance of criminal activity, not an actual

showing of such activity.” U.S. v. Miknevich, 638 F.3d 178, 185 (3d Cir. 2011) (internal

quotation marks omitted).

       Peterson here claims that there was no probable cause to believe that she engaged

in false swearing. Our review of the record reflects to the contrary, even viewing the

evidence in a light most favorable to Peterson. During the investigation, Peterson was


       3
        Generally, the existence of probable cause is a factual issue. Deary v. Three Un–
Named Police Officers, 746 F.2d 185, 191 (3d Cir. 1984). Summary judgment can be
granted, however, in an appropriate case on probable cause grounds. Id. at 192.
                                             6
asked about receiving payment from P&K Developers, to which Peterson responded

“never heard from them.” (App. 16 (internal citation omitted).) The record, however,

indicates that there was a photocopy of a check marked “from P&K Developers payable

to the order of Mountain Valley Abstract in the amount of $635.66 dated July 13, 2001.”

(Id.) As the District Court correctly observed, Peterson’s ownership of Mountain Valley

reasonably supports a false swearing charge, and undermines the theory that Agent

Colgan committed an actionable constitutional violation. Reedy v. Evanson, 615 F.3d

197, 213 (3d Cir. 2010) (holding that liability for a 1983 false arrest claim cannot be

sustained unless Appellant shows “that the police officer knowingly and deliberately or

with reckless disregard for the truth made false statement”).

       Peterson urges this Court to attach significance to the magistrate judge’s

conclusion that the Commonwealth failed to present a prima facie case with respect to

this count. But it is settled law that the relevant inquiry is not whether particular conduct

is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of

noncriminal acts.” United States v. Whitted, 541 F.3d 480, 491 (3d Cir. 2008) (internal

quotation marks omitted). See also Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir.

1988) (“The proper inquiry in a section 1983 claim . . . 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.”).

       Similar reasoning applies to the charge of tampering with public records or

                                               7
information. The District Court found that Agent Colgan had sufficient probable cause

considering “that the HUD-1 forms filled out by [Peterson] were received and kept by the

government; that there were inconsistencies in the forms; and that [Peterson] endorsed

the inconsistent settlement sheets . . . .” (App. 19-20 (internal footnotes omitted).)

Peterson argues that the District Court erred on two grounds: first, defendants were not

versed in RESPA instructions nor had obtained expert advice; second, HUD-1 settlement

statements do not constitute public records. Both arguments are unavailing.

       As to the first argument, the alleged lack of expertise in dealing with real estate

practices does not constitute a Fourth Amendment violation. It is black letter law that

liability for a false arrest claim can only succeed if the police officer engaged in conduct

reflecting a “reckless disregard” for the truth. See Reedy v. Evanson, 615 F.3d 197, 213

(3d Cir. 2010). While a lack of practical expertise may be considered as a factor in the

probable cause analysis, the record viewed as a whole does not demonstrate that state

officials acted in deliberate indifference to Peterson. See Montgomery v. De Simone, 159

F.3d 120, 126-27 (3d Cir. 1998) (“[A] municipality’s failure to train police officers only

gives rise to a constitutional violation when that failure amounts to deliberate indifference

to the rights of persons with whom the police come into contact.”).

       As for the second argument, Peterson failed to present it in the proceedings below,

and it is therefore waived. See American Cyanamid Co. v. Fermenta Animal Health Co.,

54 F.3d 177, 187 (3d Cir. 1995) (“It is well established that failure to raise an issue in the

                                              8
district court constitutes a waiver of the argument.”).4

       Therefore, we find that the District Court did not err in granting Appellees’

summary judgment motion.



                                      IV. Conclusion

       For the foregoing reasons, we shall affirm the Judgment of the District Court.




       4
         Even if it had been raised, the argument misses the mark given the broad
language of the Pennsylvania statute. See 18 Pa. C.S. § 4911 (“A person commits an
offense if he . . . knowingly makes a false entry in, or false alteration of, any record,
document or things . . . required by law to be kept by others for information of the
government.”).
                                              9
