                                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                     No. 12-3906
                                    _____________

                               ANTHONY PRITCHETT,
                                      Appellant

                                          v.

 SHAWN WARRENDER, INDIVIDUALLY & IN HIS OFFICIAL CAPACITY AS A
DETECTIVE IN THE CITY OF PHILADELPHIA POLICE DEPARTMENT; CITY OF
                   PHILADELPHIA; JOHN DOES 1-10
                            ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (Case No. 11-cv-4682)
                    Magistrate Judge: Honorable Timothy R. Rice
                                    ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                              Argued: October 8, 2013

           Before: FUENTES, GREENBERG, and BARRY, Circuit Judges.

                           (Opinion Filed: November 4, 2013)

Matthew B. Weisberg [Argued]
Weisberg Law, P.C.
7 South Morton Avenue
Morton, PA 19070

Attorney for Appellant

Elise M. Bruhl [Argued]
Deputy Solicitor, Appeals
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102-1595

Attorney for Appellees
                                      ____________

                               OPINION OF THE COURT
                                    ____________
FUENTES, Circuit Judge:
       Anthony Pritchett appeals from the District Court’s judgment in favor of Shawn

Warrender. Pritchett had sought to recover from Warrender, a police detective, for
maliciously prosecuting him in violation of 42 U.S.C. § 1983. After the parties presented
their evidence at a jury trial, the District Court concluded that Pritchett had not come
forward with legally sufficient evidence of malice. The District Court entered judgment
as a matter of law for Warrender. We affirm.

                                      I. Background

       Pritchett’s claim of malicious prosecution stems from Pennsylvania’s efforts to
hold him criminally liable for the theft of a laptop computer. Based largely on the
suspicions of Pritchett’s work supervisor, who reported the disappearance of her laptop to

the police, Warrender arrested Pritchett on July 28, 2010 for three theft-related offenses.
But the prosecution stalled. After holding Pritchett in pre-trial custody for months, the
government withdrew its charges on January 13, 2011 and he was released.
       Following his release, Pritchett sued Warrender and the City of Philadelphia for
maliciously prosecuting him in violation Pennsylvania state law and 42 U.S.C. § 1983.
Before trial, the District Court granted summary judgment in the City’s favor, but the

Court found that disputes of fact precluded summary judgment in Warrender’s favor.
       Pritchett presented his case against Warrender to a jury. At the close of the
evidence, but before the jury received the case, the District Court heard argument on


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Warrender’s motion for judgment as a matter of law. The Court focused the parties on
element of malice. In particular, the Court questioned how the jury could lawfully
conclude that Warrender, for example, had been motivated by spite, did not actually
suspect Pritchett of wrongdoing, or intended to prosecute Pritchett for some improper
purpose. In response, Pritchett noted that he had offered evidence that Warrender had
made a false statement in an affidavit of probable cause. The District Court ruled that
Pritchett “need[ed] more than a false statement” in order to reach the jury on the question
of malice. (J.A. 174.) The Court then entered judgment in Warrender’s favor.

       Pritchett now appeals the District Court’s judgment on the § 1983 claim.

                                         II. Analysis 1

       According to Pritchett, the District Court committed three errors: (1) requiring him

to prove the element of malice as distinct from the absence of probable cause; (2)
refusing to permit the jury to infer malice from the absence of probable cause; and (3)
disregarding the law of the case as established at summary judgment.
       None of these arguments persuades us to vacate the judgment of the District Court.
First, the trial judge did not err by insisting that Pritchett come forward with evidence of
both the absence of probable cause and the presence of malice. In this circuit, a plaintiff

seeking to recover for malicious prosecution pursuant to § 1983 must show that a
defendant initiated criminal proceedings against him without probable cause. See, e.g.,

1
  The District Court had jurisdiction over the case pursuant to 28 U.S.C. § 1331. This Court has
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. The Third Circuit exercises plenary
review of a district court’s decision to grant a motion for judgment as a matter of law. ZF
Meritor, LLC v. Eaton Corp., 696 F.3d 254, 268 (3d Cir. 2012). Accordingly, this Court applies
the same standard as a district court: “A motion for judgment as a matter of law should be
granted only if, viewing the evidence in the light most favorable to the nonmovant and giving it
the advantage of every fair and reasonable inference, there is insufficient evidence from which a
jury reasonably could find liability.” Id. (quotation marks omitted).

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Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc). A plaintiff must also
show that the defendant “acted maliciously or for a purpose other than bringing the
plaintiff to justice.” Id. The District Court properly separated these two elements.
Pritchett rests his contrary view on Sykes v. Anderson, where the U.S. Court of Appeals
for the Sixth Circuit held that malice was not an element of a § 1983 malicious
prosecution claim. See 625 F.3d 294, 309-10 (6th Cir. 2010). Sykes v. Anderson,
however, is not the law in the Third Circuit, so the District Court did not err by requiring
the element of malice.

       Second, Pritchett cannot obtain a new trial on the grounds that the District Court
neglected to invoke the common law doctrine that a fact-finder may infer malice from the
absence of probable cause. “[I]t is well established that failure to raise an issue in the
district court constitutes a waiver of the argument.” Belitskus v. Pizzingrilli, 343 F.3d
632, 645 (3d Cir. 2003) (quotation marks and citation omitted). Here, Pritchett failed to
invoke the inference of malice before the District Court and therefore did not preserve the

issue for review.
       Third, the District Court’s denial of summary judgment did not create law of the
case that ensured Pritchett’s claim would reach the jury. “[T]he law of the case doctrine

limits relitigation of an issue once it has been decided in an earlier stage of the same
litigation.” Hamilton v. Leavy, 322 F.3d 776, 786 (3d Cir. 2003) (quotation marks
omitted). When the record contains new material evidence, however, a court may revisit
an earlier ruling. Id. at 787. That is the circumstance here, where the District Court
entered judgment as a matter of law on a different and more complete record than the one
on which it denied summary judgment. Indeed, the trial judge properly considered




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Warrender’s motion for judgment as a matter of law only after Pritchett had been “fully
heard on [the] issue during a jury trial.” See Fed. R. Civ. P. 50(a)(1).

                                       III. Conclusion

         We affirm the District Court’s judgment. Pritchett had the burden to introduce
evidence from which the jury could conclude that Warrender acted with malice. He did
not meet it. Pritchett conceded to the trial judge that his proof of malice hinged on a false
statement in Warrender’s affidavit of probable cause. The District Court correctly
determined that a malicious prosecution claim required more than a false statement to
prevail. Pritchett cannot fault the District Court for failing to infer malice from his
evidence regarding the absence of probable cause, because Pritchett never raised that
theory to the trial judge. Nor can Pritchett avoid judgment as a matter of law by pointing

to a favorable summary judgment ruling. The District Court properly considered whether
or not Pritchett had introduced evidence at trial from which the jury could find in his
favor.




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