CLD-227                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 11-1871
                                    ___________

                              RONALD G. JOHNSON,
                                              Appellant

                                          v.

     OFFICER BINGNEAR; SUPERVISOR OFFICER RUBEN MARTINEZ;
   OFFICER DEBORAH PROVENZA; BADGE #2479; STATE OF DELAWARE;
             NEW CASTLE COUNTY POLICE DEPARTMENT
                ____________________________________

                   On Appeal from the United States District Court
                             for the District of Delaware
                           (D.C. Civil No. 08-cv-00196)
                    District Judge: Honorable Leonard P. Stark
                    ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 30, 2011

              Before: RENDELL, FUENTES and SMITH, Circuit Judges

                           (Opinion filed: August 4, 2011 )
                                     _________

                                     OPINION
                                     _________

PER CURIAM

      Ronald G. Johnson, proceeding pro se, appeals from the District Court’s entry of

summary judgment in favor of Appellees. For the reasons that follow, we will summarily


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affirm the judgment of the District Court.

       In April 2008, Johnson initiated a civil rights action in the United States District

Court for the District of Delaware, alleging that certain members of the New Castle

County Police Department violated his constitutional rights by knowingly filing false

felony charges against him. The facts underlying his complaint were based on events

occurring on two separate dates. On September 23, 2007, Officer Provenza responded to

a call at the home of Kelly Roache, to whom a No Contact Order (“NCO”) was issued on

September 7, 2007. The NCO prevented Johnson from coming within 100 yards of her,

her home, or her workplace. According to Officer Provenza’s police report, Johnson

showed up at Roache’s home to collect some of his belongings, they became involved in

an altercation, and he grabbed her shirt. He was no longer at the home when Officer

Provenza arrived. On the evening of September 23, 2007, Johnson repeatedly called

Roache’s residence. Officer Provenza stated that she heard twelve voicemail messages

from him and observed his telephone number on the caller ID four times. Following this

incident, Johnson was charged with aggravated harassment, offensive touching, and two

counts of breach of release. He was arraigned on September 27, 2007, at which time the

Judge ordered that the NCO would remain in place.

       On November 23, 2007, Officer Bingnear responded to a call from Ms. Roache

alleging that Johnson was again in violation of the NCO. According to the police report,

while incarcerated at the Howard Young Correctional Institution, Johnson sent six letters

to Ms. Roache and her daughter, addressing them as “Esq.”, presumably to avoid

detection by the Howard Young staff. In the letters, Johnson told Roache that he loved

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her and wanted to live with her upon his release from prison, asked her and her daughter

not to testify against him at trial, and offered to give $200 to her and $100 to her

daughter. He was charged with one count of bribing a witness, and four counts of

noncompliance with the conditions of his bond. Officer Bingnear’s report was approved

by Sergeant Martinez.

       In his complaint, Johnson named the State of Delaware, Officer Bingnear,

Sergeant Martinez, Officer Provenza, and the New Castle County Police Department as

defendants. He maintained that Officers Bingnear and Provenza knowingly filed false

felony charges against him with the purpose of illegally incarcerating him and increasing

the bail he would be subject to so he would not be able to get out of jail. He also asserted

that the New Castle County Police Department maintained a practice of overcharging

people with felonies instead of misdemeanors, with the intent to increase their bail and

induce them to plead guilty to the lesser offense.

       On December 4, 2009, Appellees moved for summary judgment. Johnson was

directed to respond to the motion by January 14, 2010, but did not. On January 29, 2010,

he filed a motion for the appointment of counsel, alleging that he had suffered a mental

breakdown and had changed addresses and been incarcerated several times. He requested

additional time to file a response. In June of 2010, the Court ordered Johnson to show

cause why the case should not be dismissed for failure to prosecute. Johnson responded

on July 29, 2010, averring that he had not responded to Appellees’ summary judgment

motion due to his impaired mental state. He did not explain why he was able to respond

to the order to show cause, but not the summary judgment motion. On September 30,

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2010, the Court ordered that Johnson be provided with an additional copy of Appellees’

motion, free of charge, and granted Johnson one final extension to respond to Appellees’

motion. The Court order stated that the response was due by October 22, 2010, and that

no further extensions would be granted. On October 5, 2010, Johnson filed a motion

requesting another extension for an unspecified amount of time, but did not indicate why

he could not file a response between that time and October 22. The Court denied the

motion and, on December 23, 2010, the District Court granted Appellees’ motion for

summary judgment. After the Court entered summary judgment, Johnson timely filed a

motion for reconsideration, which the District Court denied on March 31, 2011. Johnson

timely filed a notice of appeal, pro se.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We      review

the District Court’s entry of summary judgment de novo, viewing the underlying facts

and all reasonable inferences therefrom in the light most favorable to Appellant, the non-

moving party. See Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010). Summary

judgment is appropriate only if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). A

party asserting that there is a genuine dispute as to a material fact must support that

assertion with specific citations to the record.       See Fed. R. Civ. P. 56(c)(1).

       Johnson’s primary claims are that Officers Bingnear and Provenza filed

unsupported felony charges against him, thereby subjecting him to false arrest and

malicious prosecution. While the District Court construed Johnson’s complaint as raising

a claim of excessive bail, Johnson disavowed this interpretation in his motion for

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reconsideration, explaining that he was not arguing that the bail set by the Magistrate

Judge was excessive, but rather that the named officers intentionally levied false felony

charges against him for the purpose of subjecting him to excessive bail.

       First, we note that Johnson failed to meet his burden of responding to a motion for

summary judgment. While Johnson claims that he did not receive all of the Court’s

orders and correspondence, the record clearly reflects that he received some of them, that

he was aware of the pendency of Appellees’ summary judgment motion, and that he had

ample time to respond within the year during which the motion was pending.            Under

Federal Rule of Civil Procedure 56, a party opposing a motion for summary judgment

must cite to specific materials in the record that demonstrate the existence of a disputed

issue of material fact. See Fed. R. Civ. P. 56(c)(1)(A). To the extent that Johnson argues

that any such dispute exists, he fails to support his position with anything other than his

own assertion. While the District Court declined to enter summary judgment against

Johnson on these grounds, even if we were to consider Johnson’s motion for

reconsideration as a proper opposition to Appellees’ motion, we conclude that he does

not demonstrate a genuine dispute as to any material fact which would render the entry of

summary judgment inappropriate.

       In order to prove a claim of false arrest, a litigant must show that the police lacked

probable cause for the arrest. See Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d

Cir. 1995). “[P]robable cause to arrest exists when 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.”

                                             5
Orsatti v. New Jersey, 71 F.3d 480, 483 (3d Cir. 1995). The question of whether

probable cause existed is often a question for the jury. See Groman, 47 F.3d at 635. In

this case, however, there is no dispute that an NCO was in place, and that Johnson had

violated it. While Johnson maintains that he was found not guilty at trial, Appellees’

records indicate that Johnson pled guilty to one count of breach of release. Johnson

offers no documentary evidence to dispute this. Furthermore, “‘[t]he proper inquiry in a

section 1983 claim based on false arrest . . . 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.’” Groman, 47 F.3d at 634

(quoting Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). The

Officers in question undoubtedly had probable cause here.

       In order to prevail on a claim of malicious prosecution, a litigant must demonstrate

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 deprivation of liberty consistent with the concept of

seizure as a consequence of a legal proceeding.” McKenna v. City of Philadelphia, 582

F.3d 447, 461 (3d Cir. 2009). As the District Court held, because there was probable

cause for the arrests, Johnson’s claims of malicious prosecution must fail as well.

       The District Court entered summary judgment in favor of Sergeant Martinez on

the ground that Johnson failed to allege sufficient personal involvement on the part of


                                             6
Martinez to demonstrate that he personally violated Johnson’s constitutional rights. See

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1948. While we agree that Johnson

alleged nothing more than that Sergeant Martinez approved Officer Bingnear’s police

report, we will affirm on the ground that, because there is no merit to the underlying

claim, there is no merit to any claim resting on a theory of respondeat superior.

       With respect to Johnson’s claim that the New Castle County Police Department

maintained a practice of overcharging people with felonies with the intent to induce them

to plead guilty to misdemeanors, the District Court held that the Police Department is not

a separate entity for the purposes of this lawsuit, and that Johnson failed to file suit

against the proper party, the County of New Castle. The District Court therefore entered

summary judgment in favor of the New Castle County Police Department on this claim.

While we agree with the District Court’s disposition of this claim, we also note that

Johnson failed to support this allegation with anything other than his own assertion. This

is plainly insufficient to withstand a motion for summary judgment.

       Finally, while Johnson did not allege any facts to support a claim of conspiracy, he

did cite 42 U.S.C. §§ 1985 and 1986 in his complaint. We agree with the District Court

that there is no support for these causes of action in the record. See Lake v. Arnold, 112

F.3d 682, 685 (3d Cir. 1997) (setting out elements of § 1985 claim); Robison v.

Canterbury Vill., Inc., 848 F.2d 424, 431 n.10 (3d Cir. 1988) (holding that a cognizable

claim under § 1985 is a prerequisite to a claim under § 1986).

       Based on the foregoing, we conclude that this appeal presents no substantial

question and, accordingly, will summarily affirm the judgment of the District Court. See

                                             7
3d Cir. LAR 27.4; I.O.P. 10.6.




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