                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4590
                                     _____________

                                 JAMES E. BOOTHBY,

                                                        Appellant

                                            v.

                   GLENN C. DRAKE, II and JACOB ROTHERMEL


                                     _____________

                     On appeal from the United States District Court
                        For the Middle District of Pennsylvania
                                 (M.D. 09-cv-1399-JEJ)
                      District Judge: Honorable John E. Jones III
                                    _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 14, 2011

            BEFORE: SLOVITER, FUENTES, and FISHER, Circuit Judges

                             (Opinion Filed: August 4, 2011)


FUENTES, Circuit Judge.

       James Boothby appeals from an order granting summary judgment to

Pennsylvania State Troopers Glenn C. Drake, II and Jacob Rothermel (collectively

“defendants”) in an action under 42 U.S.C. § 1983 that alleges false arrest or
imprisonment and malicious prosecution, in violation of plaintiff‟s Fourth Amendment

rights. For the reasons set forth below, we will affirm.

                                        I.

       We write solely for the parties and therefore discuss only the facts necessary to

explain our decision. Boothby began working for Potter County Human Services (“the

County”) in 1987. In 2008, he was suspended by the County because he faced a non-

work-related animal cruelty charge.1 Boothby was concerned about the possibility of

termination, so in July of 2008, he requested, and the County permitted, his early

retirement.2 Had he not faced disciplinary action, Boothby would not have retired.

       On September 5, 2008, Boothby was scheduled to go to the County building to

retrieve his belongings and return property. Prior to his arrival, however, employees at

the County building observed what appeared to be a pipe bomb in Boothby‟s cubicle.

The Pennsylvania State Police were contacted, and the building was evacuated.

       Pennsylvania State Trooper Rothermel arrived at the building, where County

employees described the device inside as a bomb. Rothermel entered the building and

proceeded to a filing cabinet in Boothby‟s cubicle, where he observed two pieces of black

metal taped together with a nine-volt battery and wires. Rothermel noticed that the

window next to the cabinet was open. Rothermel removed the device from the building

and placed it in a field for inspection. Later, the bomb squad evaluated the device and



1
  On July 15, 2008, Boothby was cited for “cruelty to animals” by the Coudersport Boro
Police.
2
  Boothby‟s retirement was made official on August 13, 2008.
                                             2
observed fresh cut marks on the metal and new tape. The bomb squad then blew the

device up, confirming that it was free of any explosive material.

       When Boothby arrived at the County building, Rothermel placed him in custody.

Boothby was advised of his Miranda rights, and he agreed to speak with Trooper Drake

about the device. Boothby told Drake that he had constructed the bomb device 4 or 5

years earlier as a “prop” for a work-place safety training exercise and that he had given a

presentation on it. Boothby said that some of his former co-workers would confirm this.

Boothby also said that the device had been on his filing cabinet under paperwork for the

past 4 or 5 years.

       During the investigation, the Pennsylvania State Police interviewed every

employee working at Potter County Human Services. Not one employee had ever seen

the pipe bomb device before September 5, 2008, and none recalled Boothby giving a

presentation. The interviewed employees stated that it was not Boothby, but rather a

different employee, who made the bomb-like devices for the safety drills, and that the

devices made for the drills were not intended to look realistic. The Troopers also

interviewed the first employee to arrive at the building that day, and she reported that

when she arrived, the front door had been unlocked. Additionally, some of Boothby‟s

former co-workers indicated that he was upset about having to retire early.

       Based on this information, the defendants prepared an affidavit of probable cause

to support charges against Boothby of violating 18 Pa. C.S.A. § 3302, prohibiting causing

or risking a catastrophe, and 18 Pa. C.S.A. § 5503, prohibiting disorderly conduct. In the

affidavit, the defendants specifically noted that Boothby‟s statements that others would

                                             3
confirm he made the device as a safety prop and that he gave a presentation regarding the

device were not corroborated. Boothby was arrested and arraigned. He made bail and

was released the following day. At a preliminary hearing on October 6, 2008, the

magisterial district judge found a lack of probable cause and all charges were dismissed.

On July 20, 2009, Boothby filed suit against the defendants under 42 U.S.C. § 1983,

alleging false arrest or imprisonment and malicious prosecution, in violation of his Fourth

Amendment rights.

       On November 9, 2010, the District Court granted summary judgment to the

defendants, finding on the crucial issue of probable cause that there was no material issue

of fact that the defendants had ample probable cause to arrest and charge Boothby. This

timely appeal followed.3

       We exercise plenary review of a grant of summary judgment. Summary judgment

is appropriate where “there is no genuine issue as to any material fact” and thus “the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A

dispute of material fact is a genuine issue when there is evidence sufficient to support a

reasonable jury returning a verdict in favor of the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986). We view the record in the light most favorable

to Boothby – the non-moving party. Id.

                                        II.



3
 The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.
We have appellate jurisdiction under 28 U.S.C. § 1291. See W.V. Realty, Inc. v. N. Ins.
Co., 334 F.3d 306, 311 (3d Cir. 2003).
                                              4
       The District Court properly determined that the false arrest or imprisonment and

malicious prosecution claims turn on whether the defendants had probable cause in

arresting and charging Boothby.4 To prove false arrest or imprisonment, the plaintiff

must establish that probable cause was lacking during the arrest and related detention.

Gorman v. Twp. of Manalapan, 47 F.3d 628, 634-36 (3d Cir. 1995). To prove malicious

prosecution, the plaintiff must demonstrate that: (1) the defendants initiated a criminal

proceeding; (2) the criminal proceeding ended in the plaintiff‟s favor; (3) the defendants

initiated the proceeding without probable cause; (4) the defendants acted maliciously 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. Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).

       It is well-established that the Fourth Amendment “prohibits a police officer from

arresting a citizen except upon probable cause.” Orsatti v. N.J. State Police, 71 F.3d 480,

482 (3d Cir. 1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 169

(1972)). Probable cause “requires more than mere suspicion[.]” Orsatti, 71 F.3d at 482.

However, it does not “require the same type of specific evidence of each element of the

offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143,

149 (1972). Rather, “probable 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


4
 Accordingly, our analysis of false arrest or imprisonment and malicious prosecution
also turns on whether probable cause existed at the time Boothby was arrested.
                                               5
to be arrested.” Orsatti, 71 F.3d at 483; see also Wilson v. Russo, 212 F.3d 781, 789 (3d

Cir. 2000). The issue of whether there is probable cause is generally a question for the

jury; however, “a district court may conclude „that probable cause did exist as a matter of

law if the evidence, viewed most favorably to plaintiff, reasonably would not support a

contrary factual finding‟ and may enter summary judgment accordingly.” Estate of Smith

v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (quoting Sherwood v. Mulvihill, 133 F.3d

396, 401 (3d Cir. 1997)).

                                       III.

       On appeal, Boothby first argues that because there was no actual explosive device,

there could be no probable cause to initiate criminal proceedings under 18 Pa. C.S.A. §

3302. The statute provides in pertinent part:

                     (a)Causing catastrophe: A person who causes a
                     catastrophe by explosion, fire, flood, avalanche,
                     collapse of building…or by any other means of
                     causing potentially widespread injury or
                     damage…commits a felony of the first degree
                     if…intentionally…or a felony of the second
                     degree…if recklessly.

                     (b)Risking catastrophe: A person is guilty of a
                     felony of the third degree if he …creates a risk
                     of catastrophe in the employment of fire,
                     explosives or other dangerous means listed in
                     subsection (a) of this section.

Clarifying the statute, the Pennsylvania Supreme Court held that “the means by which the

catastrophe is risked …need not be specifically enumerated…nor must it be per se

dangerous in the absence of other factors. On the contrary, it is only required that the

„means‟ in any given case have the potential to cause a catastrophe.” Commonwealth v.

                                                6
Karetny, 880 A.2d 505, 517 (Pa. 2005). There is no question that a fake bomb,

constructed to look real, and initially believed to be real, constitutes a means to risk

causing a catastrophe. The mass evacuation of a government building, as occurred here,

most certainly has the potential to cause a catastrophe. In this light, the District Court did

not err.

       Boothby next argues that the defendants did not have probable cause to arrest and

charge him because he had no access to the building after the building administration

changed the entry codes upon his retirement. This argument, however, lacks merit,

because the record establishes that Boothby had potentially two methods of access to the

building, the unlocked door and the open window, of which the defendants had been

informed.

       Boothby‟s next assertion on appeal is that there was no probable cause to arrest

and charge him because Trooper Rothermel failed to appear for a subsequent preliminary

hearing. This is wholly without merit. As previously stated, probable cause analysis

turns on the objective facts available to the officers on the day of the arrest. Therefore,

the District Court correctly held that Rothermel‟s absence from a future hearing has no

bearing on a probable cause analysis that is properly focused on the date of arrest.

       Finally, Boothby argues that there was a lack of probable cause because “everyone

knew it was not a bomb.” Boothby bolsters this argument by stating that Rothermel went

into the building and retrieved the device, prior to the arrival of the bomb squad, because

he knew it was fake and not dangerous. The record, however, does not support

Boothby‟s claim. The Pennsylvania State Police responded to an emergency report of a

                                              7
bomb inside the County building. Upon arrival, Rothermel was informed by County

employees that there was a bomb inside. None of the employees said that they believed

the device was not real.5 Rothermel then observed what appeared to be an actual bomb.

The device was not confirmed to be “fake” until after the bomb squad detonated it.

Therefore, Boothby‟s claim that everyone knew the device was not an actual bomb is

contrary to the record and does not alter the probable cause analysis.

       In sum, the District Court‟s probable cause analysis appropriately focused on the

information the defendants had available to them on September 5, 2008. See Marasco,

318 F.3d at 514. The defendants responded to the report of a bomb inside a government

building. A suspicious device was located and removed from the cubicle of a former

employee who had recently been forced to accept an early retirement. Interviews with

County employees did not substantiate that the device was known to be a safety prop. In

fact, no one reported ever seeing the device prior to that morning. The building‟s front

door had reportedly been unlocked that day, and a window next to the device was open.

Based on this record, the District Court was correct in finding that no genuine issue of

material fact existed concerning whether the defendants had probable cause to arrest and

charge Boothby.

                                        IV.

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


5
  Boothby cites preliminary hearing testimony and subsequent newspaper interviews with
some of his former co-workers to support his assertion that no one believed the device
was a bomb. However, on the date of the incident, none of Boothby‟s co-workers told
the defendants that they knew the device was not a real bomb.
                                              8
