                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                   _____________
                                    No. 14-1055
                                   _____________

                                GLORIA GEBHART,
                                                       Appellant
                                          v.

                      DAVID STEFFEN; TIMOTHY BARKER
                                    ____________
                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (Case No. 1-12-cv-01837)
                       District Judge: Hon. William W. Caldwell
                                    ____________
                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   June 26, 2014

Before: MCKEE, Chief Judge, and FUENTES and GREENAWAY, JR., Circuit Judges.

                             (Opinion filed: August 1, 2014)



                               OPINION OF THE COURT


FUENTES, Circuit Judge:

   Gloria Gebhart brought a 42 U.S.C. § 1983 suit against defendants Timothy Barker, a
York County Police Officer, and David Steffen, a York County Assistant District

Attorney. Gebhart alleged that Barker and Steffen maliciously prosecuted her and abused
the legal process when they arrested and prosecuted her for crimes she did not commit.

After multiple rounds of amendments and foregone opportunities to amend, the District

Court dismissed Gebhart’s complaint. We conclude that Gebhart failed to sufficiently

plead a malicious prosecution claim because she has not alleged facts to show that

Steffen initiated her criminal proceedings without probable cause. We also conclude that

Gebhart failed to plead a cause of action for abuse of process because she did not allege

that her proceedings were misused after they were initiated. We affirm.

                                       I. Background

   Because this is an appeal of dismissals for failure to state a claim, we take the

allegations in Gebhart’s complaint as true. Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d

Cir. 2010).

   Gloria Gebhart’s action began with her son. Prior to Gebhart’s arrest, her son, Steven,

was incarcerated. While imprisoned, he sued York County officials for civil rights

violations. Around the same time, York County law enforcement investigated Steven for

ongoing criminal activity. His jailhouse phone calls were being recorded and reviewed.

   The investigation into Steven swept up his mother, as well. On August 27, 2007,
Officer Steffen filed a criminal complaint against Gloria Gebhart alleging multiple

offenses, including participating in a criminal conspiracy with her son to commit theft by

deception. The complaint rested, at least in part, on information culled from Steven’s
phone calls. Barker, an Assistant District Attorney, actively participated in the

investigation and advised Steffen on the charges he should file. On the basis of the

alleged conspiracy, Barker consolidated Gebhart’s and Steven’s trials and presented them

to the same jury. On November 17, 2010, the jury found Gebhart not guilty of all charges.


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   After the jury acquitted her, Gebhart filed a § 1983 complaint alleging that Barker and

Steffen maliciously prosecuted her in violation of the Fourth Amendment, and also

abused the legal process in violation of state law. Gebhart claims that “the rambling,

diffuse, and overbroad affidavit of probable cause filed as part of the criminal complaint”

made “no definitive or understandable charge . . . with the required specificity.” Second

Am. Compl. ¶ 10. The charges, Gebhart asserts, were “exaggerated and trumped up,”

“baseless,” and without probable cause. Id. ¶¶ 1, 5, 6, 19. Gebhart alleges that Barker and

Steffen arrested and prosecuted her to retaliate against Steven for his civil rights suit.

   Gebhart’s pleading went through three iterations of pleading, dismissal, and

subsequent amendment. Barker and Steffen moved to dismiss under Rule 12(b)(6) or

Rule 12(c) at each stage, arguing that Gebhart had failed to state a claim and that they

were immune from liability. Ultimately, the District Court dismissed both of Gebhart’s

claims with prejudice for failure to state a claim. The District Court never reached the

immunity issues.

   Considering Gebhart’s abuse of process claim, the District Court noted that, under

Pennsylvania law, “[t]he gravamen of a malicious abuse of process claim is not . . . the

wrongful initiation of criminal . . . proceedings; it is the misuse of process.” Gebhart v.
Steffen, No. 12 Civ. 1837, 2013 WL 160218, at *2 (M.D. Pa. Jan. 15, 2013) (quoting

Dunne v. Twp. of Springfield, 500 F. App’x 136, 139 (3d Cir. 2012)) (original alterations

omitted). The Court concluded that Gebhart’s Complaint alleged only that the criminal

charges were initiated wrongly, not that the process was misused after it began, and held

that Gebhart failed to state a claim of abuse of process. The Court granted Gebhart leave

to amend. When her First Amended Complaint included no changes to the abuse of


                                                3
process claim, the District Court held that allowing Gebhart to make additional changes

would be futile. It dismissed the claim with prejudice.

        Next, the District Court held that Gebhart’s Second Amended Complaint had not

sufficiently alleged that her proceedings were initiated without probable cause, an

element of malicious prosecution. The Court gave Gebhart twenty-one days to amend her

complaint and warned her that her claim would be dismissed if she failed to amend.

Nineteen days later, Gebhart moved for a time extension and the District Court granted

her an additional twelve days to comply. Four days after the extension period expired,

Gebhart filed a motion and the Court gave her another seven days to file an amended

complaint. When Gebhart failed to file a third amended complaint after this third deadline

elapsed, the District Court dismissed her complaint with prejudice.

    Gebhart raises two arguments on appeal. First, she contends the District Court erred in

dismissing her claims of malicious prosecution. Second, she contends the District Court

erred in dismissing her claims of abuse of process. We will address each issue in turn.

                                       II. Discussion

    We exercise plenary review over a District Court’s grant of a motion to dismiss.1
Byers, 600 F.3d at 291. Rule 12(b)(6) motions to dismiss and Rule 12(c) motions for

judgment on the pleadings for failure to state a claim are judged according to the same

standard. Turbe v. Gov. of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991).

    When considering a motion to dismiss, we take all of the plaintiff’s “factual

allegations as true [and] construe the complaint in the light most favorable to the

1
 The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. Because the
District Court’s dismissal order ended the litigation, this court has jurisdiction over
Gebhart’s appeal pursuant to 28 U.S.C. § 1291.
                                               4
plaintiff.” Byers, 600 F.3d at 291. However, a complaint must contain “more than labels

and conclusions” or a “formulaic recitation of the elements of a cause of action.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, “[t]he

plaintiff must allege ‘enough facts to state a claim to relief that is plausible on its face.’”

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (quoting Twombly,

550 U.S. at 570). This standard is not a probability requirement but the plaintiff needs to

show “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

                                                A.

   The District Court correctly dismissed Gebhart’s claim for malicious prosecution. To

state a valid malicious prosecution claim for violations of Fourth Amendment rights, a

party bringing a § 1983 claim must allege enough facts to plausibly show that:

   (1) the defendants initiated a criminal proceeding;

   (2) the criminal proceeding ended in the plaintiff’s favor;

   (3) the proceeding was initiated without probable cause;

   (4) the defendants acted maliciously or for a purpose other than
       bringing the plaintiff to justice; and

   (5) the plaintiff suffered a deprivation of liberty consistent with the

      concept of seizure as a consequence of a legal proceeding.
DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005).


   Gebhart has failed to allege the third element, that Steffen and Barker initiated

criminal proceedings against her without probable cause. Gebhart pleads that: (1) the

affidavit of probable cause was “rambling, diffuse, and overbroad” and without “the
required specificity,” Second Am. Compl. ¶ 10; (2) the charges were “exaggerated and
                                                 5
trumped up,” Id. ¶ 1, “baseless,” Id. ¶ 6, 18, based on “materially misrepresented”

evidence, Id. ¶ 12, and without probable cause; (3) she was arrested to pressure Steven

because of his existing civil rights suit; and (4) she was acquitted. These statements do

not illustrate the absence of probable cause.

   First, Gebhart asserts that Steffen and Barker lacked probable cause to justify criminal

proceedings. This is a legal conclusion. Gebhart also describes the charges as exaggerated

and baseless, and premised on “materially misrepresented” evidence, but she makes no

effort to identify the misrepresented facts or describe how the charges were exaggerated

and baseless. Her naked allegations, without some kind of elaboration, are just more

colloquial ways of saying the charges lacked probable cause. See Morrow v. Balaski, 719

F.3d 160, 165 (3d Cir. 2013) (on a motion to dismiss, “we are not compelled to accept

unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a

factual allegation” (citation and quotation marks omitted)).

   Second, Gebhart’s ultimate acquittal, though required as an element of a malicious

prosecution claim, does not simultaneously satisfy the probable cause element. “[T]he

constitutional validity of the arrest does not depend on whether the suspect actually

committed any crime . . . [and] it is irrelevant to the probable cause analysis . . . whether
a person is later acquitted of the crime for which she or he was arrested.” Wright v. City

of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (citations omitted).

   Third, the existence of Steven’s lawsuit and Gebhart’s assertion that her criminal

proceedings were used as a device to pressure Steven does not show the absence of

probable cause. These allegations do explain why an officer might be motivated to arrest

Gebhart without probable cause. But nothing about these statements indicates that Steffen
did so. See Iqbal, 556 U.S. at 683.
                                                6
   At best, Gebhart claims that the arrest affidavit was “rambling, diffuse, and

overbroad.” Second Am. Compl. ¶ 10. True, a “rambling, diffuse, and overbroad” arrest

affidavit might lack of probable cause. But, on the other hand, such an affidavit might

reflect the existence of probable cause.. Gebhart does not allege enough to nudge her

claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. The

District Court properly dismissed her malicious prosecution claim.

                                             B.

   The District Court correctly dismissed the abuse of process claim. Under

Pennsylvania law, an abuse of process claim must establish three elements:

   (1) The defendant used a legal process against the plaintiff,

   (2) the defendant used the process primarily to accomplish a purpose for which the

       process was not designed; and

   (3) harm has been caused to the plaintiff.
Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. Ct. 2008).

   Abuse of process and malicious use of process, also known as malicious prosecution,

are separate torts. Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989). While malicious

prosecution “has to do with the wrongful initiation of civil process,” abuse of process “is

concerned with perversion of process after litigation has begun.” U.S. Express Lines Ltd.

v. Higgins, 281 F.3d 383, 394 (3d Cir. 2002). For abuse of process to lie, the improper

use must be the primary purpose of the proceeding and “there is no action for abuse of

process when the process is used for the purpose for which it is intended, but there is an

incidental motive or spite or ulterior purpose of benefit to the defendant.” Gen.


                                                7
Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 305 n.2 (3d Cir. 2003)

(quoting Rosen v. Am. Bank of Rolla, 627 A.2d 190, 192 (Pa. Super. Ct. 1993)).

   Gebhart has not pled that either Steffen or Barker committed abuse of process. Her

allegations that Steffen wrongfully arrested her do not describe an abuse of process. See

McGee v. Feege, 535 A.2d 1020, 1025 (identifying malice, absence of probable cause,

and commencement of a case as “factors germane to an action for malicious use of

process.”). Because Gebhart makes no allegations that Steffen participated in the

proceedings after he initiated them, her claim against Steffen fails at the start.

   As to Barker, the only allegation Gebhart makes that pertains to her legal process after

its initiation was that Barker consolidated Gebhart’s and Steven’s trials on the basis of the

alleged conspiracy. Gebhart argues in her brief that Barker consolidated the trials for the

purpose of pressuring Steven. If true, this could be an abuse of process because “using a

legal process primarily to harass and cause direct injury to an adversary . . . could

constitute a perversion of that process.” Gen. Refractories Co., 337 F.3d at 307.

Gebhart’s complaint, however, does not reflect these facts. The complaint alleges only

that Barker had an improper motive in initiating the suit, not in conducting it, and

“[t]here is no liability where the defendant has done nothing more than carry out the

process to its authorized conclusion, even though with bad intentions.” Al Hamilton

Contracting Co. v. Cowder, 644 A.2d 188, 499 (Pa. Super. Ct. 1994) (citation and

quotation marks omitted).



                                                8
   Assuming that Gebhart did allege that the primary purpose of Barker’s litigation

strategy was to pressure Steven, the claim would fail anyway. In Pennsylvania, assistant

district attorneys “are immune from suits seeking damages for actions taken . . . in the

course of their official duties.” Durham v. McElynn, 772 A.2d 68, 69-70 (Pa. 2001). As

an assistant district attorney, Barker’s effort to consolidate the trials of co-conspirators, or

any other litigation strategy he chose to pursue, related to his official duties. His conduct,

therefore, falls within the scope of Pennsylvania’s immunity laws.

   Because Gebhart failed to allege that either Barker or Steffen misused the criminal

proceedings after they were initiated against her and, alternatively, because Barker is

protected by absolute immunity, the District Court properly dismissed her claim.

                                         III. Conclusion


   We affirm the District Court’s dismissal orders. To state a claim for malicious

prosecution, Gebhart had to allege the absence of probable cause. She has not done so. To

state a claim for abuse of process, Gebhart had to allege that her criminal proceedings

were misused after they were initiated. She has not alleged that either.




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