                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 18-1945
                                   ________________

                                    DEVON YOUNG,
                                           Appellant

                                             v.

            CITY OF CHESTER, PA; DETECTIVE MARC BARAG;
      OFFICER WILLIAM CAREY; POLICE COMMISSIONER JOSEPH BAIL
                 ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 2-17-cv-03066)
                      District Judge: Honorable Wendy Beetlestone
                      ____________________________________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                  on March 19, 2019

               Before: SHWARTZ, KRAUSE and BIBAS, Circuit Judges

                             (Opinion filed: March 29, 2019)



                                        OPINION*




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

       Appellant Devon Young appeals the District Court’s dismissal of his complaint

alleging constitutional and state law claims against the City of Chester and certain

members of its police department (“Appellees”) for his arrest and pre-trial detention

before his eventual acquittal. For the reasons that follow, we will affirm.

I.     Background

       On July 16, 2015, Officers Marc Barag and William Carey were conducting covert

narcotics surveillance in Chester, Pennsylvania, when they observed Young standing on a

sidewalk and an individual, later identified as Basil Evans, walk up and engage Young in

a brief conversation. When the men finished speaking to each other, Evans handed

Young cash and, in return, Young took out a small package and handed it to Evans.

When Evans walked away, Officer Barag stopped him, conducted a pat-down search, and

recovered a small clear pink bag containing 0.4 grams of marijuana from his pants

pocket. Evans was then arrested.

       Within a couple hours, Officer Carey relayed Young’s whereabouts to a third

officer who arrested Young and recovered a cell phone and 184 dollars. Officer Barag

also swore out an affidavit of probable cause against Young, alleging possession of drug

paraphernalia, in violation of 35 Pa. Stat. Ann. § 780-113(a)(32), and possession with

intent to deliver a controlled substance, in violation of 35 Pa. Stat. Ann. § 780-

113(a)(30). Because Young was unable to post the $50,000 bail set by the court, he

remained in prison for almost ten months before his two-day trial resulted in an acquittal

on both charges.

                                              2
       Young then filed a complaint in the Eastern District of Pennsylvania, asserting

§ 1983 false arrest and malicious prosecution claims, as well as state law claims, against

Officers Carey and Barag, and a claim against the City of Chester, pursuant to Monell v.

Department of Social Security, 436 U.S. 658 (1978), and against Police Commissioner

Joseph Bail, pursuant to a theory of supervisory liability.1 The District Court dismissed

the complaint in its entirety, and Young timely appealed.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367,

and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a

district court’s dismissal of claims under Federal Rule of Civil Procedure

12(b)(6), Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014), accepting the complaint’s

factual allegations as true and construing them in the light most favorable to the

nonmoving party, Connelly v. Lane Constr. Corp., 809 F.3d 780, 790, 793 (3d Cir. 2016),

but disregarding conclusory assertions and bare recitations of the elements, id. at 786 n.2,

789-90.




       1
         Appellees initially failed to respond to Young’s complaint, and the District Court
entered a default in Young’s favor. Upon Appellees’ motion to vacate the default, the
District Court applied the three-part test articulated in Chamberlain v. Giampapa, 210
F.3d 154, 164 (3d Cir. 2000), concluding that (1) Young would not suffer prejudice if
default was denied, (2) Appellees had a litigable defense, and (3) Appellees’ delay was
not due to “willfulness” or “bad faith.” JA 49. While we note that Giampapa concerned
the standard for granting the entry of default judgment rather than vacating the entry of
default, the test is the same. See Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982).
Accordingly, contrary to Appellant’s contention, the District Court properly exercised its
discretion to vacate the default. See Fed. R. Civ. P. 55(c).
                                             3
III.   Discussion

       Young raises four arguments on appeal, none of which is persuasive.

       First, Young contends that the District Court erred in dismissing his false arrest

claim because the officers lacked probable cause to arrest him. To state a false arrest

claim under § 1983, a plaintiff must adequately allege that the arresting officers lacked

probable cause. See Berg v. Cty. of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000).

Probable cause requires only that “the facts and circumstances within the arresting

officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe

that an offense has been or is being committed by the person to be arrested,” Orsatti v.

N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995), and while probable cause “requires

more than mere suspicion[,]” it does not “require the same type of specific evidence of

each element of the offense as would be needed to support a conviction[,]” Reedy v.

Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (citations omitted). Probable cause is present

so long as there is a “fair probability that the person committed the crime at issue.”

Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (internal quotation marks and citation

omitted).

       Here, in light of the information that the complaint acknowledges was available at

the time of Young’s arrest, a reasonable officer could conclude there was a “fair

probability” that Young “use[d], or possess[ed] with intent to use, drug paraphernalia” to

execute a drug transaction with Evans, in violation of 35 Pa. Stat. Ann. § 780-113(a)(32),

and that he possessed with intent to deliver a controlled substance, in violation of 35 Pa.

Stat. Ann. § 780-113(a)(32). As reflected in the complaint, the officers in this case

                                              4
observed Young speaking with Evans and exchanging money for a small package, and

Evans was arrested moments later with 0.4 grams of marijuana in his possession. Those

facts were sufficient for a reasonable officer to believe that Young used or possessed

“drug paraphernalia,” which is defined under Pennsylvania law as “all equipment,

products and materials of any kind which are used, intended for use or designed for use in

. . . storing, containing, [or] concealing . . . a controlled substance.” 35 Pa. Stat. Ann. §

780-102(b). While that alone is fatal to Young’s false arrest claim because such claims

“necessarily fail if probable cause existed for any one of the crimes charged,” Dempsey v.

Bucknell Univ., 834 F.3d 457, 477 (3d Cir. 2016), the officers’ observations were also

sufficient to conclude that Young possessed with intent to distribute the marijuana that

was recovered from Evans, see § 780-113(a)(30).

       Second, Young challenges the dismissal of his malicious prosecution claim against

the officers. To plead a malicious prosecution claim, a plaintiff must allege that (1) the

defendant initiated a criminal proceeding; (2) the criminal proceeding ended in the

plaintiff’s favor; (3) the defendant initiated the proceeding without probable cause; (4)

the defendant acted maliciously or for a purpose other than bringing the plaintiff to

justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of

seizure as a consequence of a legal proceeding. Zimmerman v. Corbett, 873 F.3d 414,

418 (3d Cir. 2017), cert. denied, 138 S. Ct. 2623 (2018). Young’s malicious prosecution

claim fails because probable cause existed for both charges he faced.

       Third, while Young insists that the District Court erred by dismissing his state law

claims, his claims of false arrest, false imprisonment, and malicious prosecution fail

                                               5
because the elements are substantially the same as those for his § 1983 claims. See Renk

v. City of Philadelphia, 641 A.2d 289, 293 (Pa. 1994) (false arrest/false imprisonment);

Turano v. Hunt, 631 A.2d 822, 824 (Pa. Commw. Ct. 1993) (malicious prosecution).

And his claims of false light invasion of privacy and intentional infliction of emotional

distress were properly dismissed because they were asserted “in a conclusory manner

without alleging any facts in support of the elements for each claim.” JA 11; see Hoy v.

Angelone, 720 A.2d 745, 753 (Pa. 1998) (intentional infliction of emotional distress);

Coleman v. Ogden Newspapers, Inc., 142 A.3d 898, 905 (Pa. Super. Ct. 2016) (false

light).

          Last, Young argues that his Monell claim against the City of Chester was

improperly dismissed because the constitutional violations he suffered “clearly stemmed

from the City of Chester’s failure to train [them].” Appellant’s Br. 35. Municipalities,

however, may be held liable under § 1983 only if the plaintiff can show a predicate

constitutional violation of the plaintiff’s rights. Startzell v. City of Philadelphia, 533 F.3d

183, 204 (3d Cir. 2008) (citation omitted). The City of Chester cannot be “liable under

Monell unless one of [its] employees is primarily liable under section 1983 itself.”

Williams v. Borough of West Chester, 891 F.2d 458, 467 (3d Cir. 1989). Because Young

has not adequately alleged a predicate constitutional violation, he cannot pursue a Monell

claim against the City.2


          2
         Likewise, to the extent that Young pleads a claim for supervisory liability against
Bail, this claim fails because he has not plausibly alleged a predicate constitutional
violation. See, e.g., Reedy, 615 F.3d at 231 (requiring participation in a violation of the
plaintiff’s rights).
                                              6
       Even if there were an underlying constitutional violation, municipalities may be

held liable under § 1983 only if the plaintiff proves the existence of an unconstitutional

policy or custom that caused her injury. Brown v. City of Pittsburgh, 586 F.3d 263, 292

(3d Cir. 2009) (citing Monell, 436 U.S. at 694). Here, the District Court rightly

concluded that, because Young’s complaint contains only conclusory allegations

regarding the City of Chester’s policies in six areas, it “fail[s] to satisfy the ‘rigorous

standards of culpability and causation’ required for municipal liability.” McTernan v.

City of York, 564 F.3d 636, 658 (3d Cir. 2009) (quoting Bd. of Cty. Comm’rs of Bryan

Cty. v. Brown, 520 U.S. 397, 405 (1997)).

IV.    Conclusions

       For the aforementioned reasons, the District Court’s judgment will be affirmed.




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