                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-1687
                                     _____________

                   LARRY HARTPENCE, owner of Hartpence Farms,
                                   Appellant

                                             v.

     MADISON TOWNSHIP; MADISON TOWNSHIP SUPERVISORS; ANDY
    NAZARENKO; CHARLES FREY; PHILIP SETZER; MADISON TOWNSHIP
    PERMIT OFFICER; HOWARD STEVENS, Madison Township Building Code
Enforcement Officer; JAMES DAMSKI; BUILDING INSPECTION UNDERWRITERS
                          OF PENNSYLVANIA, INC.
                              ______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                  (No. 3-13-cv-00626)
                       District Judge: Hon. Malachy E. Mannion
                                    ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 25, 2015

             Before: CHAGARES, KRAUSE, and BARRY, Circuit Judges.

                              (Opinion Filed: July 7, 2015)

                                      ____________

                                        OPINION*
                                      ____________



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

       Larry Hartpence appeals the District Court’s grant of the defendants’ motion to

dismiss. For the reasons that follow, we will affirm.

                                             I.

       Hartpence owns a property in Madison Township, Pennsylvania (“the Township”)

that contains a building for storing animal bedding materials. In January 2008, in

connection with the construction of the building, Hartpence filed an Application for Code

Exempt Building Permit with the Township. The application was denied, and, in the

same month, the Township issued an order to show cause why his building should not be

vacated or closed for violations of the Uniform Construction Code (“the Code”).

Hartpence responded to the order to show cause by arguing that the structure was exempt

from the Code as an agricultural building. The Township contended that the building

was not exempt and issued an order to vacate. On March 20, 2008, the Township filed a

criminal complaint against Hartpence in state court for failing to obtain a required permit.

Hartpence was convicted, but on appeal, the Superior Court overturned his conviction on

the ground that the building was indeed exempt from the permit requirement.

       On July 23, 2012, Hartpence filed an action in state court against Madison

Township, Madison Township Supervisors, Andy Nazarenko, Charles Frey, Philip

Setzer, Howard Stevens, James Damski, and the Building Inspection Underwriters of

Pennsylvania. In February 2013, he filed a three-count amended complaint. Count I of

the amended complaint is labeled “Malicious Prosecution of Criminal Charges,” and it

refers exclusively to Pennsylvania state law. Appendix (“App.”) 37. Count II

                                             2
(erroneously labeled Count I in the amended complaint) is labeled “Violation of 42

U.S.C. § 1983,” and it alleges, “in their rejection of the Plaintiff’s application and in their

initiation of the criminal charges against Plaintiff [, the defendants] deprived the Plaintiff

of his constitutional rights.” App. 39. Hartpence does not allege any facts describing

how the action constituted a deprivation of constitutional rights. Count III alleges a

deprivation of Hartpence’s constitutional rights due to policies and procedures the

Township promulgated.

       The defendants removed the action and moved to dismiss on the grounds that the

state malicious prosecution claim failed on the merits and that the two-year statute of

limitations barred the § 1983 claims. Hartpence argued that Count II included a

malicious prosecution claim under § 1983, and because the time limit for that claim did

not begin to run until Hartpence’s appeal had concluded successfully, it was not time-

barred. The District Court rejected the argument that the complaint contained a § 1983

malicious prosecution claim, finding that the only malicious prosecution claim Hartpence

had alleged was under state law:

              Although the plaintiff specifically cites § 1983 in Counts II
              and III of his complaint, he does not do so in Count I. In fact,
              in Count I, the plaintiff specifically cites to Pennsylvania state
              law. Moreover, the elements alleged in the amended
              complaint are consistent with that of a Pennsylvania state law
              malicious prosecution claim, not a § 1983 claim.

App. 10-11 n.4. The District Court thus found that the § 1983 claims concerned only the

rejection of Hartpence’s application and the initiation of criminal charges against him,

both of which were barred by the statute of limitations. The District Court concluded that


                                               3
Hartpence’s state law malicious prosecution claim failed because the initial state court

conviction established that the proceeding was not initiated without probable cause, as is

necessary to state a claim for malicious prosecution under Pennsylvania law. The District

Court thus granted the motion to dismiss. Hartpence timely appealed.

                                             II.

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

we have jurisdiction pursuant to 28 U.S.C. § 1291.

       We exercise plenary review over a district court’s decision to grant a motion to

dismiss under Rule 12(b)(6). See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts

Inc., 140 F.3d 478, 483 (3d Cir. 1998). Like the District Court, we accept as true all

factual allegations in the complaint and we construe the complaint in the light most

favorable to the plaintiff. See id. We affirm a dismissal if the plaintiff has failed to plead

“‘enough facts to state a claim to relief that is plausible on its face.’” Malleus v. George,

641 F.3d 560, 563 (3d Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

                                             III.

       Hartpence argues on appeal is that the District Court should have read Count II of

the amended complaint as alleging malicious prosecution under § 1983. Had the District

Court so read Count II, Hartpence argues, his claim would have survived because

although the conviction was fatal to his state law claim, it would not have foreclosed a §

1983 malicious prosecution claim. We disagree.



                                              4
       The elements of a malicious prosecution claim under Pennsylvania law are that the

defendant “(1) instituted the proceedings (2) without probable cause with (3) actual

malice and (4) that the proceedings terminated in favor of the plaintiff.” Lippay v.

Christos, 996 F.2d 1490, 1502 (3d Cir. 1993) (citing Kelley v. Gen. Teamsters, Local

Union 249, 544 A.2d 940, 941 (Pa. 1988)). Under the common law, a criminal

conviction, even if it is later overturned on appeal, is sufficient to show that the action

was supported by probable cause, so long as the conviction was not obtained by fraud,

perjury, or other nefarious means. See Montgomery v. De Simone, 159 F.3d 120, 124

(3d Cir. 1998) (“At common law, a conviction presumptively establishes the existence of

probable cause absent a showing that the conviction was achieved through perjury, fraud

or corruption.”). A conviction does not have the same effect in the probable cause

analysis for a § 1983 malicious prosecution case. See id. at 125 (“We hold today that the

Restatement’s rule that an overturned municipal conviction presumptively establish[es]

probable cause contravenes the policies underlying the Civil Rights Act and therefore

does not apply to a section 1983 malicious prosecution action.”).

       Though the conviction would not have barred Hartpence from stating a § 1983

malicious prosecution claim, the District Court was nevertheless correct that the amended

complaint fails to state such a claim.

       A malicious prosecution claim under § 1983 includes the same four elements

listed above, see Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989), but it also contains an

additional requirement: in order to state a malicious prosecution claim under § 1983, a

plaintiff must allege facts sufficient to show a plausible “deprivation of liberty consistent

                                              5
with the concept of seizure.” Donahue v. Gavin, 280 F.3d 371, 380 (3d Cir. 2002)

(quotation marks omitted). Hartpence fails to show such a deprivation. Though he

alleges conclusorily that the defendants deprived him of his “constitutional rights,” this

allegation falls far short of the requirement that a plaintiff plead facts sufficient to state a

claim to relief that is plausible on its face to survive a motion to dismiss.

                                              IV.

       For the foregoing reasons, we will affirm the order of the District Court.




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