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


2-7-2002

Donahue v. Gavin
Precedential or Non-Precedential:

Docket 0-2082




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Donahue v. Gavin" (2002). 2002 Decisions. Paper 110.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/110


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed February 7, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2082

CHRISTOPHER F. DONAHUE,

       Appellant

v.

JAMES GAVIN; GEORGE YATRON; MICHAEL MARINO;
JEFFREY HAWBECKER; PAUL EVANKO; RICHARD
PATTON; JAMES GIRARD; GREGORY PEASE; JOHN
SHANAHAN; ROBERT SCHWARZ; BERKS COUNTY; FIRST
SAVINGS BANK OF PERKASIE; BELL ATLANTIC, INC.

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 98-cv-01602)
District Judge: Hon. Thomas N. O'Neill, Jr.

Argued: January 8, 2001

Before: MANSMANN, McKEE and AMBRO, Circuit Jud ges

(Opinion filed: February 7, 2002)

       JORDAN B. YEAGER, ESQ. (Argued)
       Boockvar & Yeager
       714 Main Street
       Bethlehem, PA 18018
       Attorney for Appellant
       D. MICHAEL FISHER, ESQ.
       Attorney General of the
        Commonwealth of Pennsylvania
       JOHN O. J. SHELLENBERGER,
        ESQ. (Argued)
       Chief Deputy Attorney General
       CALVIN R. KOONS, ESQ.
       Senior Deputy Attorney General
       JOHN G. KNORR, III, ESQ.
       Chief Deputy Attorney General
       Chief, Appellate Division
       Office of the Attorney General
       21 S. 12th Street, 3rd Floor
       Philadelphia, PA 19107
       Attorneys for Appellees,
       James Girard and Gregory Pease

       BARRY W. SAWTELLE, ESQ.
        (Argued)
       Kozloff Stoudt, P. C.
       The Berkshire, 6th Floor
       501 Washington Street
       P. O. Box 877
       Reading, PA 19603
       Attorneys for Appellees,
       James Gavin, George Yatron and
       Berks County

OPINION OF THE COURT

McKEE, Circuit Judge.

Christopher F. Donahue appeals the district court's grant
of summary judgment in favor of the defendants and
against Donahue in his civil rights action under 42 U.S.C.
S 1983. The district court based its ruling on its
determination that each of the defendants had either
qualified or absolute immunity. The suit arises from the
investigation and prosecution of a marijuana distribution
conspiracy involving Donahue. He alleges a civil rights
claim based upon defendants' purported malicious

                                2
prosecution of him in violation of the Fourth Amendment.1
For the reasons that follow, we will affirm.2

I. FACTS

In late 1990, State Troopers Pease and Girard were the
lead officers in an investigation of a marijuana distribution
ring involving a Berks County resident named "Erwin
Bieber." In June of that year, Pease learned that a
marijuana dealer in Albuquerque, New Mexico was
regularly placing telephone calls from Albuquerque to
southeastern Pennsylvania. The telephone numbers he was
calling were listed to a telephone in Montgomery County
and one in Berks County. The Berks County number was
assigned to a business called "Guitars East." Erwin Bieber
received mail at the address listed for that business.

Pease responded by acquiring information that included
Bieber's telephone toll records. Meanwhile, the Albuquerque
Police Department placed a pen register on the New Mexico
dealer's telephone line.3 A pen register was also installed on
the Montgomery County telephone that the New Mexico
dealer was calling. Pease also learned that another
telephone was registered to Bieber at the address of
"Guitars East." The Montgomery County telephone involved
in calls to and from Albuquerque was also frequently being
used in making calls to and from Bieber's telephones.
_________________________________________________________________

1. For the sake of simplicity, we will refer to Donahue's claim as arising
only under the Fourth Amendment even though the Fourth Amendment
applies to the defendants via the Fourteenth Amendment. See Karnes v.
Skrutski, 62 F.3d 485, 488 n.1 (3rd Cir. 1995).

2. Although we are affirming, we do so on grounds that are different from
the analysis of the district court. See Brumfield v. Sanders, 232 F.3d
376, 399 n.2 (3rd Cir. 2000) ("An appellate court may affirm a result
reached by the District Court on different reasons .. . as long as the
record supports the judgment.").

3. "A pen register is a `device which records or decodes electronic or
other impulses which identify the numbers dialed or otherwise
transmitted on the telephone line to which such device is attached.' "
United States v. Riddick 156 F.3d 505, 510 n.5 (3rd Cir. 1998)(citations
omitted).

                               3
In late 1990, the Berks County District Attorney's Office
was asked to assist in the ongoing investigation the
Pennsylvania State Police were conducting into this
marijuana distribution ring, and Troopers Pease and Girard
informed the Berks County District Attorney's Office of the
information they had received from the Albuquerque Police
Department. Yatron was then the Berks County District
Attorney and James Gavin was an Assistant District
Attorney. On October 2, 1990, the State Police installed pen
registers on the two telephone lines registered to Bieber and
Guitars East pursuant to authorizations obtained from the
Berks County Court of Common Pleas.

Yatron and Gavin eventually filed two applications with
the Pennsylvania Superior Court seeking authorization to
conduct non-consensual electronic surveillance on Bieber's
two telephone lines.4 The application included an affidavit
signed by Troopers Pease and Girard. The Superior Court
granted the application and entered orders authorizing
interception of wire and oral communications on Bieber's
two telephone lines.

Trooper Pacelli installed and activated monitoring
equipment on Bieber's telephone lines pursuant to those
authorizations.5 Thereafter, from October 12, to November
17, 1990, Pease, Girard, and other Troopers working with
them listened to the telephone calls to and from Bieber's
two telephones.6 The monitored conversations included
discussions between Bieber and Donahue.

State Police had not been aware of Donahue before they
began monitoring Bieber's telephone conversations.
_________________________________________________________________

4. Unlike the pen registers that only recorded numbers dialed from
Bieber's two phones, the October 12 request sought authorization to
actually listen to (i.e., "seize") the contents of conversations on those
phones.

5. Trooper Pacelli held a class "B" certification under the applicable
Pennsylvania regulations, and that authorized him to perform such
installations. He was trained and experienced in the installation and use
of the monitoring equipment.

6. All of the troopers working with Pease and Girard had Class "A"
certifications under the applicable Pennsylvania regulations for
monitoring telephone calls.

                               4
However, once they began monitoring those calls, the State
Police heard and recorded a number of conversations
between Bieber and a "Christopher Donahue" residing at
1503 Callowhill Road in Perkasie, Pennsylvania.

We need not reiterate the rather involved chronology of
the investigation that followed, the content of the many
conversations that police recorded between Bieber and
Donahue, or the results of the surveillance the police
conducted while monitoring those calls. For our purposes,
it is sufficient to note that the numerous discussions
between Bieber and Donahue implicated both of them in a
large conspiracy to distribute substantial quantities of
marijuana in and around Berks County, Pennsylvania.
Eventually, police learned that Bieber was receiving
marijuana from sources in California and New Mexico and
distributing it to several people in Pennsylvania, including
Donahue.

On November 17, 1990, police followed Bieber to
Philadelphia International Airport where he met two other
men with suitcases. Police followed the trio from the airport
to 1503 Callowhill Road, Donahue's residence. Police
maintained surveillance as Bieber and his companions then
drove to a trailer home owned by Steve Hartman. Police
arrested the trio along with Hartman shortly after they left
Hartman's trailer.

Bieber began to talk to the police almost immediately. He
told Trooper Pease that he recently received 16 pounds of
marijuana from suppliers in California and that he had
delivered all 16 pounds to Donahue on November 7, 1990.
Police arrested Donahue after additional investigation, and
charged him with conspiracy to distribute marijuana,
conspiracy to participate in a corrupt organization, and
possession of marijuana with the intent to distribute. The
arrest warrant for Donahue was based upon a criminal
complaint that incorporated an affidavit of probable cause
that Pease and Girard signed.

Donahue filed a suppression motion prior to trial. He
argued that the electronic surveillance had been initiated
and maintained in a manner that violated the Pennsylvania
Wiretapping and Electronic Surveillance Control Act, 18 PA.

                                5
CONST. STAT. ANN. SS 5701-5748. After the suppression
motion was denied, Donahue proceeded to trial before a
jury.

Bieber was one of the prosecution witnesses at that trial.
He testified about his extensive drug dealings with
Donahue, including the aforementioned delivery of 16
pounds of marijuana on November 7, 1990. The jury
convicted Donahue of all the charges against him.

On direct appeal, the Pennsylvania Superior Court
reversed and ordered a new trial. That court held that,
given Bieber's testimony, the trial court committed
reversible error in not giving a "corrupt source" jury
instruction. Commonwealth v. Donahue, 630 A.2d 1238,
1246-47 (Pa. Super. 1993).7 However, the court rejected all
of Donahue's other arguments, including his argument that
his suppression motion should have been granted because
the electronic surveillance was contrary to law. Id. at 278-
281.8 Donahue's Petition for Allowance of Appeal to the
Pennsylvania Supreme Court was denied. Donahue v.
Commonwealth, 645 A.2d 1316 (Pa. 1994).

In January of 1997, the Berks County Court of Common
Pleas dismissed the corrupt organizations charges against
Donahue based upon intervening changes in the applicable
case law. At that point, Donahue had already spent more
than two and one-half years in prison on his sentence. The
Berks County District Attorney concluded that Donahue
would not receive any additional incarceration if he were to
be convicted in a retrial pursuant to the Superior Court's
_________________________________________________________________

7. The Superior Court held that "It is reversible error for a trial court
not
to give an accomplice charge if the evidence permits an inference that a
witness was an accomplice." 630 A.2d at 1247 (citation omitted).

8. In its opinion, the Superior Court noted that Donahue alleged in his
appeal that the violations of the Wiretap Act were constitutional
violations. However, the Superior Court found that"no constitutional
claims were preserved in post-verdict motions. We therefore deem any
constitutional claims in this regard to be waived for our review." 630
A.2d at 1248. Consequently, "grounds for suppression . . . are limited to
incriminating evidence resulting from a wiretap based on an interception
which was unlawful or otherwise conducted in contravention of judicial
order, or because the judicial order was insufficient on its face." Id.

                                6
remand. Accordingly, the Assistant District Attorney who
was then assigned to the case asked the trial court to enter
a nolle prosequi ("nol pros"), thereby terminating the
prosecution. The state court granted that request, and
those charges that remained after the remand were
dismissed.

II. DISTRICT COURT PROCEEDINGS

A. The 1995 Action.

In April of 1995, Donahue filed a two-count complaint in
the district court pursuant to 42 U.S.C. S 1983. He sought
monetary damages against Berks County as well as Yatron,
Gavin, Pease, and Girard, based upon the electronic
surveillance that had been conducted during the 1990-91
investigation and prosecution. In Count I of his complaint,
he alleged an illegal search and seizure in violation of the
Fourth, Fifth and Fourteenth Amendments. Count II alleged
violations of the Pennsylvania Wiretapping and Electronic
Surveillance Act, 18 PA. CONST. STAT. ANN. SS 5701-5748.

The defendants moved for summary judgment or
dismissal under Fed. R. Civ. P. Rule 12(b)(6), based upon
the applicable statutes of limitations. The district court
agreed, and entered orders dismissing the suit on January
4, 1996. Donahue did not appeal.

B. The 1998 Action.

In 1998, Donahue filed another civil action based upon
the aforementioned investigation and prosecution. The
complaint asserted: a S 1983 Fourth Amendment claim for
malicious prosecution against Berks County, Yatron, Gavin,
Pease and Girard (Count 1); a S 1983 Fourth Amendment
illegal search and seizure claim against D.A. Gavin,
Assistant D.A. Yatron, several Troopers involved in the
electronic monitoring, including Pease and Girard,
Pennsylvania Deputy Attorney General Richard Patton,
First Savings Bank of Perkasie, First Savings employee
Robert Schwartz and Berks County (Count II);9 a S 1983
_________________________________________________________________

9. Donahue sued the bank and its employee because the bank gave the
state police information about Donahue's bank accounts during the
investigation.

                                 7
deprivation of property claim against Patton, Schwartz and
First Savings (Count III);10 claims for a violation of the Right
to Financial Privacy Act, 12 U. S. C. SS 3401-3422, against
First Savings and Loan and an employee of that bank 11
(Count IV); and various claims of violations of the
Pennsylvania Wiretapping and Electronic Control Act
against Gavin, Yatron, Pease, Patton, Trooper Jeffrey
Hawbecker and Montgomery County District Attorney
Michael Marino (Counts V-VIII).

The defendants filed various motions to dismiss under
Fed. R. Civ. P. 12(b)(6) and for judgment on the pleadings
under Fed. R. Civ. P. 12(c). By Memoranda and Orders
dated December 8, 1998 and March 12, 1999, the district
court dismissed all but one claim and most of the
defendants. See Donahue v. Gavin, 1999 WL 165700 (E. D.
Pa. 1999). The court held that all federal claims for
unlawful search and seizure against Berks County, Yatron,
Gavin, Pease and Girard were precluded both by the
judgment in the 1995 action and by the applicable statutes
of limitations. It also ruled that all claims under the
Pennsylvania Wiretapping and Electronic Surveillance
Control Act were barred by the statute of limitations.

As a result of that ruling, the only claim remaining was
Count I - the S 1983 claim for malicious prosecution under
the Fourth Amendment. However, the district court ruled
that that claim could only be asserted against Berks
County, Yatron, Gavin (the "County Defendants") and Pease
and Girard (the "State Defendants"), and the suit proceeded
to discovery. At the close of discovery, all of the remaining
defendants moved for summary judgment. The County
Defendants argued that they had either absolute or
qualified immunity. The State Defendants argued that
Donahue could not establish a Fourth Amendment violation
as a matter of law, and that even if he could, they were also
entitled to qualified immunity.

Donahue opposed the defendants' summary judgment
_________________________________________________________________

10. Donahue ultimately withdrew Count III.

11. Police obtained financial information about Donahue from the bank
during the course of the investigation.

                                8
motions and also filed a motion to suppress all of the
evidence derived from the electronic surveillance. He argued
that suppression was required because the wiretap
evidence was obtained in violation of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. SS 2510-2520. The district court granted each of the
defendants' motions for summary judgment. The court held
that the County Defendants had absolute immunity and
that the State Defendants had qualified immunity. Donahue
v. Gavin, 2000 WL 772819 (E. D. Pa. 2000).

This appeal followed. Donahue only appeals the grant of
summary judgment in favor of the State and County
Defendants on the S 1983 malicious prosecution claim.12 No
other issues are before us.

III. DISCUSSION

A.

The essence of Donahue's S 1983 malicious prosecution
suit against the State Defendants is that Pease and Girard
lacked probable cause to initiate the criminal proceedings
against him. Similarly, the essence of his S 1983 malicious
prosecution claim against the County Defendants is that
Yatron and Gavin did not have probable cause to prosecute
him. As noted, both the County Defendants and the State
Defendants asserted qualified immunity.13

Donahue attempts to establish this absence of probable
cause in a unique manner. He asks the court to suppress
the very evidence that would be relevant to determining if
the defendants had probable cause. He argues that the
suppression remedy contained in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C.
_________________________________________________________________

12. Our review of the district court's grant of summary judgment is
plenary. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998).

13. The County Defendants also raised the defense of absolute immunity
to all acts undertaken in their decision to prosecute Donahue and to all
acts taken in preparation necessary to present their case. See 2000 WL
772819 at * 3.

                                9
SS 2510-2520,14 is not restricted to criminal prosecutions.
See Br. of Appellant, 17-20. Accordingly, Donahue claims
that the district court should have ruled on his suppression
motion before determining whether defendants were
protected by any form of immunity. He argues:

       The motion to suppress should have been ruled upon
       -- and granted -- first. The Court should not have
       considered the wiretap evidence in ruling on the
       summary judgment motions because Defendants
       obtained and used this material illegally.

Id. at 16.

B.

Government officials exercising discretionary functions
have qualified immunity from suits seeking damages under
S 1983 "insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v.
Fitzgerald, 457 U. S. 800, 818 (1982); see also Wilson v.
Russo, 212 F.3d 781, 786 (3d Cir. 2000) ("According to the
doctrine of qualified immunity, law enforcement officers
acting within their professional capacity are generally
immune from trial insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.")(citations
and internal quotations omitted).15
_________________________________________________________________

14. For example, Donahue argues: "[d]espite . . . assertions contained in
their applications and supporting affidavits that there was probable
cause to support the approval of the proposed wiretap order, Pease has
since admitted the lack of probable cause." Appellant's Br. at 4.

"Defendants falsely stated that Pease and Girard were qualified to
conduct the wiretaps, when they were not." Id. "Pease and Girard falsely
swore that all conventional investigative techniques (such as physical
surveillance) had been either exhausted or were impossible to use. . . .
In fact, they were had not even attempted to use any conventional
investigative techniques." Id. Donahue also claims that "Gavin played a
large role in supporting and directing the investigation, . . . ." Id. at
6.

15. In Imbler v. Pachtman, 424 U. S. 409, 430 (1976), the Supreme Court
extended absolute immunity to prosecutors when their"activities were

                               10
As noted above, the district court decided this case on
grounds of the defendants' immunity and concluded that it
did not need to address the applicability of Title III's
suppression remedy. Although we agree that the defendants
are entitled to judgment, we conclude that the district court
should not have reached the issue of the defendants'
qualified immunity without first addressing whether
Donahue even alleged a civil rights claim. The Supreme
Court has held that courts must "determine first whether
the plaintiff has alleged a deprivation of a constitutional
right at all" when a government official raises qualified
immunity as a defense to an action under S 1983. County
of Sacramento v. Lewis, 523 U. S. 833, 842 n.5 (1998).
_________________________________________________________________

intimately associated with the judicial phase of the criminal process."
More specifically, the Court held that "in initiating a prosecution and in
presenting the State's case, the prosecutor is immune from a civil suit
for damages under S 1983." Id. at 431. Therefore, a prosecutor is
absolutely immune when acting as an advocate in judicial proceedings.
Kalina v. Fletcher, 522 U. S. 118, 125 (1997). However, "a prosecutor
acting in an investigative or administrative capacity is protected only by
qualified immunity." Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir.
1992)(citations omitted). "In determining whether absolute immunity is
available for particular actions, the courts engage in a `functional
analysis' of each alleged activity." Id. (citations omitted). "The
decision to
initiate a prosecution is at the core of a prosecutor's judicial role."
Id.
Thus, "[a] prosecutor is absolutely immune when making this decision,
even where he acts without a good faith belief that any wrongdoing has
occurred." Id.

Donahue concedes that the County Defendants have absolute
immunity with regard to their actions during the judicial phase of his
prosecution. However, he attempts to circumvent that immunity by
alleging that they engaged in misconduct in the investigative phase.
More particularly, he points to their roles in gathering evidence, his
allegation that they fabricated evidence, his allegations of false
swearing
on an arrest warrant, his allegations of their covering up the illegal
wiretaps and his allegations that they made false statements in press
conferences they held. "Evidence obtained at or after the filing is likely
to be connected with an existing prosecution, and is absolutely
protected." Kulwicki, 969 F.2d at 1465. However, a prosecutor is not
entitled to absolute immunity when holding a press conference, or when
he allegedly fabricated evidence concerning an unsolved crime. Kalina,
522 U.S. at 126.

                               11
Accordingly, in Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir.
1997), we stated:

       Where a defendant asserts a qualified immunity
       defense in a motion for summary judgment, the
       plaintiff bears the initial burden of showing that the
       defendant's conduct violated some clearly established
       statutory or constitutional right. Only if the plaintiff
       carries this initial burden must the defendant then
       demonstrate that no genuine issue of material fact
       remains as to the objective reasonableness of the
       defendant's belief in the lawfulness of his actions. This
       procedure eliminates the needless expenditure of
       money and time by one who justifiably asserts a
       qualified immunity defense from suit.

Id. at 399 (citations omitted, and internal quotation marks
omitted)(emphasis added).

Determining whether plaintiff has alleged a violation of a
statutory or constitutional right is, therefore, the threshold
issue, and the Supreme Court has clearly instructed that
we must not "assum[e], without deciding, this preliminary
issue." Seigert v. Gilley, 500 U. S. 226, 232 (1991). Thus,
the district court should only have considered the
defendants' claim of immunity if Donahue first established
that their conduct violated a clearly established statutory or
constitutional right. Wilson v. Russo, 212 F.2d at 786
(courts "should . . . proceed to determine whether that right
was clearly established at the time of the alleged
violation."). Accordingly, "we begin [our analysis] with the
predicate question of whether [Donahue's] allegations are
sufficient to establish a violation of a constitutional right at
all." Sherwood,113 F.3d at 399 (citations and internal
quotations omitted).

C.

Prior to 1994, we allowed plaintiffs to bring malicious
prosecution claims under S 1983 by alleging the common
law elements of the tort. See Lee v. Mihalich , 847 F.2d 66,
69-70 (3d Cir. 1988). In order to prove malicious
prosecution under Pennsylvania law the plaintiff had to
prove: (1) the defendants initiated a criminal proceeding; (2)

                               12
the criminal proceeding ended in plaintiff 's favor; (3) the
proceeding was initiated without probable cause; and (4)
the defendants acted maliciously or for a purpose other
than bringing the plaintiff to justice. Hilfirty v. Shipman, 91
F.3d 573, 579 (3d Cir. 1996)(citing Haefner v. Burkey, 626
A.2d 519, 521 (Pa. 1993)). We had always assumed that by
proving a violation of the common law tort, the plaintiff
proved a violation of substantive due process that would
support a S 1983 claim for malicious prosecution suit. See
Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.
1998)(citing Lippay v. Christos, 996 F.2d 1490, 1502 (3d
Cir. 1993)).

However, the Supreme Court's decision in Albright v.
Oliver, 510 U. S. 266 (1994), significantly changed that
legal landscape. There, Albright was released on bail after
surrendering on an outstanding arrest warrant. The
criminal prosecution was ultimately dismissed because the
charges did not constitute an offense under state law.
Thereafter, Albright filed a S 1983 action against Oliver, the
police officer who had obtained the arrest warrant. Albright
claimed that Oliver had deprived him of his Fourteenth
Amendment substantive due process right to be "free from
criminal prosecution except upon probable cause." Id. at
269.

Chief Justice Rehnquist, writing for a plurality of four
justices, noted that Albright's claim was "a very limited one"
that did not raise procedural due process or Fourth
Amendment claims. Id. at 271. The plurality then
commented that "as a general matter, the Court has always
been reluctant to expand the concept of substantive due
process, preferring, instead, to limit substantive due
process protections to matters relating to marriage, family,
procreation, and the right to bodily integrity." Id. at 271-72.
Consequently, the plurality believed that Albright's claim
"to be free from prosecution except on the basis of probable
cause is markedly different" from the generally recognized
type of substantive due process protections" and held that
"[w]here a particular amendment provides an explicit
textual source of constitutional protection against a
particular sort of government behavior, that Amendment,
not the more generalized notion of substantive due process,

                               13
must be the guide for analyzing these claims." Id. at 272,
273.

Accordingly, the plurality held that "substantive due
process, with its scarce and open-ended guideposts,"
provided no relief. Id. at 275. However, while the plurality
"express[ed] no view" as to whether the Fourth Amendment
would provide relief to Albright, it intimated that Albright
could have obtained some relief under the Fourth
Amendment had he raised that issue. Id. at 274. Other
members of the Court agreed. Id. at 814-817 (Ginsburg, J.,
concurring in judgment); id. at 281 (Kennedy, J.,
concurring in judgment and joined by Thomas, J.); id. at
288-89 (Souter, J., concurring in judgment).

In Gallo v. City of Philadelphia, supra, we had our first
opportunity to consider Albright's impact upon our S 1983
malicious prosecution jurisprudence. There, a federal grand
jury indicted Gallo for arson. "He never was arrested,
detained, or handcuffed" following indictment, but certain
restrictions were imposed upon him in lieu of bail. 161 F.3d
at 219. Gallo subsequently discovered that the local fire
marshal had altered his original report so as to suggest
that a fire at Gallo's warehouse had been caused by arson
rather than a faulty electrical appliance. The fire marshal
had also changed his report to corroborate that accusation.

Gallo was acquitted after his defense counsel vigorously
cross-examined the fire marshal about the discrepancies in
his report. Following his acquittal, Gallo brought aS 1983
civil rights action against the fire marshal and others who
had been involved in his prosecution. He alleged that the
defendants "had caused the federal government to
prosecute him without probable cause." 161 F3d at 220.

The district court construed Gallo's S 1983 action as one
for malicious prosecution and held that, under Albright,
Gallo must show a Fourth Amendment violation in order to
prove the malicious prosecution constituted a
constitutional injury. However, inasmuch as Gallo was
never detained on the charges, he could not establish a
constitutional injury.

On Gallo's appeal, we noted that the Court in Albright
"left open the possibility that Albright could have succeeded

                                14
if he had relied on the Fourth Amendment." 161 F.3d at
222. We then wrote that

       [b]y stating that `the accused is not entitled to judicial
       oversight or review of the decision to prosecute,'
       Albright implies that prosecution without probable
       cause is not, in and of itself, a constitutional tort.
       Instead, the constitutional violation is the deprivation of
       liberty accompanying the prosecution. Thus, . . . a
       plaintiff asserting a malicious prosecution claim must
       show some deprivation of liberty consistent with the
       concept of seizure.

Id. (citations and certain internal quotations
omitted)(emphasis added). Continuing our analysis, we
noted that because "under the common law, the tort of
malicious prosecution concerns perversion of legal
procedures," Gallo was required to "show that he suffered
a seizure as a consequence of a legal proceeding." Id. We
concluded that the post-indictment restrictions placed on
Gallo's liberty constituted a seizure. Consequently, we
reversed the district court and remanded for further
proceedings.16 Id. at 225.

Eight days after we decided Gallo, we once again had
occasion to view a S 1983 malicious prosecution suit
through the lens of Albright. In Torres v. McLaughlin, 163
F.3d 169 (3d Cir. 1998), we held, inter alia, that post-
conviction incarceration is not a seizure within the meaning
of the Fourth Amendment and, therefore, post-conviction
incarceration cannot constitute a Fourth Amendment
violation. Id. at 173-175.

Officer McLaughlin arrested Torres after the officer
claimed to have seen Torres selling cocaine. The next day,
the district attorney issued a criminal complaint charging
Torres with unlawful possession of cocaine with intent to
deliver. McLaughlin was the only prosecution witness at
trial. Torres testified on his own behalf, denied the charges
_________________________________________________________________

16. We remanded because the district court did not rule on whether
Gallo had satisfied the common law elements of a malicious prosecution
claim or whether certain of the defendants were entitled to qualified
immunity. 161 F.3d at 220.

                               15
and argued that McLaughlin should not be believed. The
jury believed McLaughlin and Torres was convicted, and
sentenced to three to six years in prison.

About seven and one-half months later, Torres moved for
a new trial. The state did not oppose the motion and told
the court that if a new trial was granted, the state would
ask the court to enter a nol pros and terminate the case.
The change of heart resulted from information that
suggested that McLaughlin lied in obtaining a search
warrant in an unrelated case. The state had since learned
that McLaughlin was a "rogue cop" and had moved to nol
pros 53 other cases in which McLaughlin had been an
essential witness. The court granted Torres' motion, and
the charges were dismissed pursuant to the nol pros that
the court entered pursuant to the prosecution's request.

Thereafter, Torres filed a S 1983 action in the district
court. His suit included a claim that the conduct of
McLaughlin and others constituted malicious prosecution
in violation of the Fourth Amendment. McLaughlin argued
that he was entitled to qualified immunity on theS 1983
claim and moved for summary judgment. The district court
denied the motion, and McLaughlin appealed.17 McLaughlin
argued to us that Torres' prosecution did not amount to a
constitutional violation, or, in the alternative, that he was
entitled to qualified immunity for any violation that may
have occurred.

The only issue before us was Torres' Fourth Amendment
claim, which we characterized "as a claim based on
McLaughlin's role in initiating the prosecution by conveying
false information to the prosecutor." Torres, at 172. We
stressed that "[t]he harm resulting from this action is
Torres's incarceration after the jury found him guilty." Id.
We then inquired into whether "Torres's post-conviction
incarceration was a Fourth Amendment seizure." Id. at
173-74 (emphasis added). After discussing Albright and
related cases, we concluded that:
_________________________________________________________________

17. "[A]n order rejecting the defense of qualified immunity at either the
dismissal stage or the summary judgment stage is a`final' judgment
subject to immediate appeal." Behrens v. Pelletier, 516 U. S. 299, 307
(1996).

                                16
       the limits of Fourth Amendment protection relate to the
       boundary between arrest and pretrial detention. At
       most, there may be some circumstances during pre-
       trial detention that implicate Fourth Amendment
       rights; however, we refer to the Fourth Amendment as
       applying to those actions which occur between arrest
       and pre-trial detention. See United States v. Johnstone,
       107 F.3d 200, 206-07 (3d Cir.1997) (commenting that
       "[w]here the seizure ends and pre-trial detention begins
       is a difficult question"). Therefore, consistent with our
       language in Johnstone, we conclude that post-
       conviction incarceration cannot be a seizure within the
       meaning of the Fourth Amendment, and Torres's
       incarceration did not violate his Fourth Amendment
       rights.

Id. at 174 (emphasis added).

It was not appropriate to inquire into qualified or
absolute immunity because Torres had not alleged a Fourth
Amendment violation. Id. at 174-75. Accordingly, we
reversed and directed the district court to enter summary
judgment in favor of McLaughlin on Torres's Fourth
Amendment claim for malicious prosecution. Id. at 175.
That is precisely the situation posed by Donahue'sS 1983
claim for malicious prosecution.

Albright, Gallo and Torres are clearly implicated here
because Donahue's S 1983 malicious prosecution action is
grounded in the Fourth Amendment. His complaint alleges:
"[t]he defendants Berks County, Yatron, Gavin, Girard and
Pease violated Donahue's right to be free of malicious
prosecution by state actors under color of law pursuant to
the 4th Amendment." Complaint, P 165. However, Donahue
is attempting to recover for post-conviction losses. The
district court properly noted:

       [p]laintiff alleges in his complaint that"defendants
       Berks County, Yatron, Gavin, Girard, and Pease
       violated his right to be free of malicious prosecution ...
       pursuant to the Fourth Amendment." Compl. P 165. He
       seeks damages for, among other items, the two years
       and nine months he was incarcerated in state prison
       after his conviction. Id. at P 174.

                                17
2000 WL 772819, *3 (emphasis added). However, damages
for post-conviction injuries are not within the purview of
the Fourth Amendment.

Donahue's brief cites neither Torres nor Gallo, and his
only mention of Albright offers little support for his position
in view of the holdings in those cases. He refers to Albright
only by way of arguing its "doctrinal shift . . . in the law of
malicious prosecution." He argues "[b]efore Albright,
malicious prosecution claims were regularly understood to
be grounded in the Fourteenth Amendment Due Process
Clause . . . Since Albright . . . malicious prosecution claims
have been most often understood as Fourth Amendment
violations." Appellant's Br. at 23. However, he does not
begin to establish the required nexus between the alleged
Fourth Amendment violation and the damages he alleges.

After noting that Donahue is attempting to recover for
post-conviction injuries, the district court correctly stated:
"[Donahue] is unable to recover damages for post-conviction
incarceration based upon any alleged Fourth Amendment
violation." (citing Torres, 163 F.3d at 173-74). 2000 WL at
*3. We agree. In fact, we need only substitute the names of
the plaintiffs to show how neatly Donahue's claim is refuted
under the holding in Torres. In Torres, we stated: "[t]his
case, however, concerns the other end of the Fourth
Amendment continuum -- post-conviction incarceration.
Although Fourth Amendment seizure principles may in
some circumstances have implications in the period
between arrest and trial, we conclude that [Donahue's]
posttrial incarceration does not qualify as a Fourth
Amendment seizure." Torres, 163 F.3d at 174.

Donahue alleges he became

       ill emotionally and physically by the defendants'
       egregious misconduct -- he has lost his reputation, his
       family, his home, his savings, and other property, the
       respect and confidence of the community in which he
       lives, his investment in his education, and his business
       and career (he has lost future earnings in excess of
       $2,000,000) and was forced to spend over 2 years and
       9 months in prison only to find that he incurred debt
       beyond his control due to the defendants' unlawful
       conduct.

                               18
Complaint at P 174 (emphasis added).

Like Gallo, Donahue can establish a Fourth Amendment
seizure, and he may have incurred some "injury" as a result
of that seizure. However, even at this late date, he makes
no attempt to distinguish between damages that may have
been caused by that "seizure", and damages that are the
result of his trial, conviction and sentence. Consequently,
he has not even attempted to establish the Fourth
Amendment violation that is the condition precedent to
establishing his malicious prosecution claim.

We realize, of course, that modern rules of pleading do
not require a great deal of specificity. See Frazier v.
Southeastern Pennsylvania Transportation Authority, 785
F.2d 65, 68 (3rd Cir. 1986) (discussing "the specificity
requirement in civil rights cases" for purposes of Fed. R.
Civ. P. 8.). However, the defect in Donahue's complaint is
not that he has pled a cause of action with inadequate
specificity. Rather, it is that the specificity he has pled
reveals that he is trying to recover for injuries that are
unrelated to the constitutional guarantee his claim is
predicated upon. See Torres, 163 F.3d at 174.

Accordingly, we are constrained to hold that Donahue
has not met his burden of demonstrating that the
defendants' "conduct violated some clearly established
statutory or constitutional right." Sherwood , at 399. The
district court noted this defect and stated: "[s]ince I need
not decide the issue, . . .[ ] I express no view as to whether
plaintiff 's post-conviction incarceration violates some other
constitutional provision, such as the procedural component
of the Due Process clause[ ]." 2000 WL 772819. However,
Donahue's S 1983 action is limited to a Fourth Amendment
violation based upon malicious prosecution. We need go no
further.18
_________________________________________________________________

18. In Torres, we read Albright as "standing for the broader proposition
that a section 1983 claim may be based on a constitutional provision
other than the Fourth Amendment," including "procedural due process
or other explicit text of the Constitution." 163 F.3d 172, 173. However,
because Donahue's S 1983 malicious prosecution claim is based only on
the Fourth Amendment it ought not to be analyzed under procedural due
process notions, or on any other explicit constitutional guarantee.

                               19
However, even if we overlook this defect in Donahue's
cause of action and assume arguendo that some
unidentified (and unidentifiable) quantum of his damage
claim results solely from his seizure and pretrial detention,
we would still be constrained to find that he has not
established the tort of malicious prosecution. "One element
that must be alleged and proved in a malicious prosecution
action is the termination of the prior criminal proceeding in
favor of the accused." Heck v. Humphrey, 512 U.S. 477, 512
(1994).19

Section 659 of the RESTATEMENT (SECOND) OF TORTS (1976)
provides: "[c]riminal proceedings are terminated in favor of
the accused by

       (a) a discharge by a magistrate at a preliminary
       hearing, or

       (b) the refusal of a grand jury to indict, or

       (c) the formal abandonment of the proceedings by the
       public prosecutor, or

       (d) the quashing of an indictment or information, or

       (e) an acquittal, or

       (f) a final order in favor of the accused by a trial or
       appellate court.

(emphasis added).20 "The usual method by which a public
prosecutor signifies the formal abandonment of criminal
proceedings is by the entry of a nolle prosequi. " Id. S 659,
com. c, illus. e. As noted above, the trial court entered a nol
pros here. However, while "a grant of nolle prosequi can be
sufficient to satisfy the favorable termination requirement
for malicious prosecution, not all cases where the
prosecutor abandons criminal charges are considered to
have terminated favorably." Hilfirty v. Shipman, 91 F.3d at
579-580. A nol pros signifies termination of charges in favor
of the accused "only when their final disposition is such as
to indicate the innocence of the accused" Id. S 660, cmt. a
_________________________________________________________________

19. Heck was decided just four months after Albright.

20. The Pennsylvania Supreme Court adopted S 659 in Haefner v.
Burkey, 626 A.2d 519, 521 (Pa. 1993).

                               20
(emphasis added) Accordingly, in Hector v. Watt , 235 F.3d
154, 156 (3d Cir. 2000), we stated that a S 1983 malicious
prosecution plaintiff "must be innocent of the crime
charged in the underlying prosecution."

As noted above, the charges against Donahue were
dismissed pursuant to a nol pros in part because of a
change in the law of corrupt organizations. The state had
the option of retrying Donahue on the remaining drug
distribution and conspiracy charges but elected not to. The
Berks County District Attorney filed a motion which stated:

       In an opinion dated August 27, 1993, the Superior
       Court reversed the judgment of sentence and
       remanded for a new trial due to the failure of the .. .
       trial judge . . . to give a "corrupt and polluted source"
       charge to the jury. Upon remand for the new trial, all
       seized drugs which relate to the corrupt organization
       charges became irrelevant to the remaining charges of
       possession of marijuana and possession of marijuana
       with intent to deliver and criminal conspiracy because
       of a subsequent decision of the Supreme Court of
       Pennsylvania which required the trial court to dismiss
       the corrupt organization charges. Certain intercepted
       conversations then became irrelevant because they did
       not pertain to the remaining charges. In addition, the
       defendant has already served approximately 2 years, 7
       months and 23 days, and if convicted, the defendant
       would most likely not receive any additional jail time.
       Therefore, in the interest of judicial economy and to
       preserve scarce judicial resources, the Commonwealth of
       Pennsylvania, in exercising its prosecutorial discretion,
       requests entry of a Nolle Prosequi Order.

App. at 1308 (emphasis added).

It is clear from even a cursory reading of the request for
a nol pros that the resulting dismissal can hardly be
described as "indicat[ing] the innocence of the accused."
The prosecutor simply reasoned that Donahue was not
likely to receive any additional jail time if convicted in a
retrial, and concluded that further prosecution was
therefore not an appropriate use of limited resources. Far
from indicating Donahue's innocence, the nol pros merely

                                 21
reflected an informed and reasoned exercise of
prosecutorial discretion as to how best to use those limited
resources. It does not suggest that Donahue was innocent
of the remaining criminal charges. Accordingly, there is no
way that Donahue can establish the malicious prosecution
that is necessary to establishing the constitutional violation
he has alleged as the basis of his S 1983 civil rights claim,
and the defendants are entitled to judgment for that
reason.

IV.

For all of the above reasons, we will affirm the judgment
of the district court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               22
