                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-1651
                                       ___________

                                   DONTE MILBURN,
                                             Appellant

                                             v.

                       CITY OF YORK; MICHAEL S. HOSE;
                  RICHARD S. PEDDICORD; JEFFREY T. SPENCE
                     ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1-12-cv-00121)
                      District Judge: Honorable John E. Jones III
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 18, 2015

               Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

                                  (Filed: May 14, 2015)
                                       ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      Pro se appellant Donte Milburn appeals the District Court’s order granting the

defendants’ motion for summary judgment and the Magistrate Judge’s orders denying his

requests to amend his complaint. For the reasons detailed below, we will affirm the

District Court’s judgment.

      In August 2006, a man named Juan Laboy was shot and killed in York,

Pennsylvania. Two years later, a grand jury was convened to determine whether Milburn

should be charged with the shooting. In the grand-jury proceedings, the prosecuting

attorney, William Graff, presented several witnesses, including Luis Valentine and

Gregory Hall. Both Valentine and Hall testified that Milburn had admitted to them that

he and an accomplice had shot Laboy after he had resisted their attempt to rob him. The

grand jury recommended that Milburn be prosecuted. On October 29, 2008, Milburn,

who was already incarcerated for a different conviction, was arrested and charged with

criminal homicide, robbery, and two counts of criminal conspiracy. He was arraigned on

January 26, 2009.

      At Milburn’s criminal trial, Valentine admitted that he had lied to the grand jury

about Milburn’s involvement. Hall did not testify, for reasons that are not clear. The

prosecution dropped all charges against Milburn on the second day of trial.

      On January 6, 2012, Milburn filed this lawsuit, naming as defendants the City of

York and several City police officers. Milburn claimed, under 42 U.S.C. § 1983, that the

defendants had engaged in malicious prosecution and abuse of process; he also raised a

municipal-liability claim. In September 2012, Milburn filed a motion to amend the

complaint, seeking to add the prosecuting attorney, Graff, as a defendant. The Magistrate

                                            2
Judge denied that request. Milburn later filed another motion to amend his complaint,

this time seeking to add a claim under Brady v. Maryland, 373 U.S. 83 (1963), and a

claim of false arrest. The Magistrate Judge again refused to allow amendment. The

District Court then granted summary judgment to the defendants, and Milburn filed a

timely notice of appeal to this Court.

       We have jurisdiction under 28 U.S.C. § 1291. We review the orders denying

Milburn leave to amend his complaint for abuse of discretion, Garvin v. City of Phila.,

354 F.3d 215, 219 (3d Cir. 2003),1 and exercise plenary review over the District Court’s

summary-judgment order, see Camp v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000).

       We agree with the District Court’s disposition of this case. First, the Magistrate

Judge did not err in concluding that it would have been futile for Milburn to amend his

complaint to name Graff as a party. In Pennsylvania, the statute of limitations for claims

under § 1983 is two years. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009).

Milburn’s malicious-prosecution claim accrued on January 12, 2010, when the criminal

action was terminated, see Rose v. Bartle, 871 F.2d 331, 348 (3d Cir. 1989), and he was

thus required to file his § 1983 claims on or before January 12, 2012. His initial

1
  As we note above, the Magistrate Judge entered the orders denying Milburn’s motions
to amend. Milburn failed to file an appeal with the District Court of the Magistrate
Judge’s order denying his first motion to amend. See 28 U.S.C. § 636(b)(1)(A). While
Milburn did file an appeal of the second order, it appears that the District Court never
ruled on that request. By failing to appeal the first order to the District Court, Milburn
waived his right to appeal that ruling to this Court. See United States v. Polishan, 336
F.3d 234, 240 (3d Cir. 2003). However, this failure to appeal does not deprive this Court
of jurisdiction, see id. at 239, and because the defendants have not raised this waiver
argument, we will address Milburn’s arguments on the merits, see generally Freeman v.
Pittsburgh Glass Works, LLC, 709 F.3d 240, 250 (3d Cir. 2013) (“a party can waive a
waiver argument by not making the argument . . . in its briefs”).
                                             3
complaint was timely; however, he sought to amend his complaint to add Graff on

September 12, 2012, well outside the two-year limitations period.

       Accordingly, Milburn’s claim against Graff would be timely only if it related back

to the date of the original complaint. See Fed. R. Civ. P. 15(c)(1). As relevant here, this

required a showing that, within 120 days of the filing of the original complaint, the party

to be added to the action “received such notice of the action.” Rule 15(c)(1)(C)(i). As

the Magistrate Judge concluded, the record is bereft of any facts suggesting that Graff

had actual or imputed notice of the lawsuit during the pertinent period. See Singletary v.

Pa. Dep’t of Corr., 266 F.3d 186, 196-97 (3d Cir. 2001). While Milburn claims that the

same law firm that represented the named defendants would likely have represented

Graff, this will not suffice here, where Milburn has presented no evidence whatsoever

suggesting that the attorneys “had any communication or relationship whatsoever with

[Graff] within the 120-day period.” Garvin, 354 F.3d at 226. Thus, as the Magistrate

Judge held, it would have been futile to amend the complaint to raise this time-barred

claim. See id. at 222.2

       We likewise agree with the Magistrate Judge’s refusal to permit Milburn to amend

his complaint to bring a claim of false arrest and a claim alleging a Brady violation. As

to the former, the false-arrest claim accrued on January 26, 2009, when Milburn was

arraigned. See Wallace v. Kato, 549 U.S. 384, 390 (2007). The limitations period for

this claim therefore expired on January 26, 2011 — that is, before Milburn filed his initial

2
  Graff would also have enjoyed absolute immunity from claims concerning his actions
“in initiating a prosecution and in presenting the State’s case.” Imbler v. Pachtman, 424
U.S. 409, 431 (1976).
                                             4
complaint. Accordingly, this amendment would have been futile even assuming that it

related back under Rule 15(c). See, e.g., Spotts v. United States, 613 F.3d 559, 573-74

(5th Cir. 2010).

       In his putative Brady claim, Milburn alleges that the defendants violated his rights

by failing to test blood samples and gunshot residue that were found on the crime scene;

he contends that this evidence could have established his innocence. Even assuming that

this claim would not have been time-barred, it would have been futile for Milburn to raise

it. The blood samples and gunshot residue represent “potentially useful evidence,”

because Milburn can only “hope that, had the evidence been preserved, a . . . test

conducted on the substance[s] would have exonerated him.” Illinois v. Fisher, 540 U.S.

544, 548 (2004) (quotation marks omitted). To make out a due-process claim with

respect to potentially useful evidence, Milburn must show that the Government acted in

“bad faith” when it destroyed the evidence. Id.; see also Arizona v. Youngblood, 488

U.S. 51, 57 (1988). Here, Milburn’s allegations of bad faith are entirely conclusory and

fail to state a facially plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”). The Magistrate Judge therefore did not err in denying leave

to present this claim. See Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238, 243

(3d Cir. 2010) (amendment is futile if the amended complaint fails to state a claim).

       We also agree with the District Court’s determination that the defendants were

entitled to summary judgment on Milburn’s malicious-prosecution claim. To establish

this claim, Milburn was required to show, among other things, that the criminal

                                             5
proceeding “was initiated without probable cause.” Estate of Smith v. Marasco, 318 F.3d

497, 521 (3d Cir. 2003). In cases like this one, where the grand jury issued a

presentment, that presentment “constitutes prima facie evidence of probable cause to

prosecute”; this presumption can be overcome only “by evidence that the presentment

was procured by fraud, perjury or other corrupt means.” Rose, 871 F.2d at 353.

       Here, the grand jury issued its presentment after hearing both Valentine and Hall

identify Milburn as the perpetrator. While Milburn alleges that the defendants induced

Valentine and Hall to testify falsely, he presents no evidence in support of his claims.

See In re Ikon Office Solutions, Inc., 277 F.3d 658, 666 (3d Cir. 2002) (“a party will not

be able to withstand a motion for summary judgment merely by making allegations”). In

fact, the record evidence is to the contrary — Valentine testified in his deposition that the

defendants did not tell him to give a false statement. Further, while Milburn complains

that the defendants failed to present evidence to the grand jury that tended to implicate

other individuals, that is insufficient to rebut the presumption created by the presentment.

See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 363 (3d Cir. 2003).

Accordingly, the District Court correctly concluded that Milburn’s claim could not

survive summary judgment. See id.; see also Merkle v. Upper Dublin Sch. Dist., 211

F.3d 782, 790 (3d Cir. 2000).

       Nor did the District Court err in granting judgment to the defendants on Milburn’s

abuse-of-process claim. As we have explained, “a section 1983 claim for malicious

abuse of process lies where prosecution is initiated legitimately and thereafter is used for

a purpose other than that intended by the law.” Rose, 871 F.2d at 350 n.17 (internal

                                              6
quotation marks omitted). Here, Milburn has steadfastly maintained that the criminal

action was improper from the start, which constitutes malicious prosecution. See id. He

presented no evidence that the criminal proceedings were ever used for an improper

purpose. See generally Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297,

305 n.2 (3d Cir. 2003).

       Finally, given that the District Court did not err in granting judgment to the

defendants on Milburn’s various claims, it was also appropriate to grant judgment on his

claim of municipal liability. See Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006) (“in

order for municipal liability to exist, there must still be a violation of the plaintiff's

constitutional rights”).

       Accordingly, we will affirm the District Court’s judgment




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