                                                          NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                 No. 10-1102
                                 ___________

                MADHU AGARWAL; DR. ANIL AGARWAL,

                                                                  Appellants

                                       v.

 CITY OF JERSEY CITY; MR. JOSEPH MAZZONE; JERSEY CITY MUNICIPAL
COURT; STATE OF NEW JERSEY, through Jersey City Municipal Court Prosecutor
representing the State of New Jersey; MR. JOSEPH BOYLE; EDWARD COLEMAN,
   Director of Jersey City Division of Housing Code Enforcement; MR. RODNEY
 HADLEY, Director of Public Works Division of Parks and Forestry; MR. ROBERT
  KANE, Division of Housing Code Enforcement; DIRECTOR OF JERSEY CITY
 DEPARTMENT OF TRAFFIC; MR. MARK REDFIELD, Department of H.E.D.C.;
                        JOHN DOE INSURANCE COMPANY
                      ___________________________________

                On Appeal from the United States District Court
                          for the District of New Jersey
                         (D.N.J. Civil No. 08-cv-02529)
                 District Judge: Honorable Susan D. Wigenton
                     ______________________________

                 Submitted Pursuant to Third Circuit LAR 34.1
                                June 23, 2010

       Before: RENDELL, HARDIMAN AND ALDISERT, Circuit Judges

                         (Opinion filed: July 13, 2010)

                                  _________

                                  OPINION
                                  _________
PER CURIAM

       Anil Agarwal and his wife Madhu Agarwal, proceeding pro se, appeal an order of

the United States District Court for the District of New Jersey granting motions to dismiss

their civil rights action. We will affirm the District Court’s order.

       The Agarwals filed a pro se action in District Court against the City of Jersey City

and various Jersey City employees (the “Jersey City Defendants”), Jersey City Municipal

Court Judge Nesle Rodriguez, and the State of New Jersey, claiming malicious

prosecution and harassment in connection with complaints brought against Madhu

Agarwal in a New Jersey municipal court for housing code violations. The Jersey City

Defendants and Judge Rodriguez moved to dismiss the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be

granted. They also argued that they are immune from suit. The State of New Jersey also

moved to dismiss the complaint, asserting, among other things, sovereign immunity.

       After a hearing on the motions to dismiss and a motion to amend the complaint

filed by the Agarwals, the District Court dismissed the complaint with prejudice. The

District Court first noted that Anil Agarwal, who appeared at the hearing without his

wife, had no standing to come before the court because his wife owned the property that

was the subject of their complaint. The District Court further found that the Agarwals’

complaint and proposed amended complaint were incomprehensible and that the

defendants could not respond to them. The District Court stated that, to the extent the



                                              2
Agarwals claimed that the defendants conspired against them and filed false charges, the

State of New Jersey is immune from suit under the Eleventh Amendment, the municipal

court judge is absolutely immune from suit, and the individual Jersey City employees are

entitled to qualified immunity. The District Court concluded that any attempt to amend

the complaint would be futile. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir. 2006).

       To the extent the District Court held that the Agarwals’ complaint is subject to

dismissal because it is incomprehensible, we disagree. Although their complaint is not a

model of clarity, the Agarwals allege that the Jersey City defendants maliciously filed two

complaints, numbers 20070009340906 and HCE2007151871, which were unfounded and

for purposes of harassment. They provide the dates the complaints were issued and state

that the complaints were later dismissed. Liberally construed, the Agarwals’ federal

complaint attempts to state a claim for malicious prosecution pursuant to 42 U.S.C.

§ 1983.

       Although we conclude that dismissal of the complaint was not warranted for the

reason stated by the District Court, the complaint was properly dismissed under Rule

12(b)(6) for failure to state a claim. See Storey v. Burns Int’l Sec. Serv., 390 F.3d 760,

761 n.1 (3d Cir. 2004) (noting appellate court may affirm result reached by district court



                                              3
on different reasons if the record supports the judgment). “To establish a claim of

malicious prosecution under § 1983, a plaintiff must establish: (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 purposes other than bringing plaintiff to justice; and (5) the plaintiff

suffered a deprivation of liberty consistent with the concept of seizure as a consequence

of a legal proceeding.” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc).

       Anil Agarwal concedes in his brief that the complaints filed in municipal court

were brought against his wife, not him. He thus has no claim for malicious prosecution.

Regarding Madhu Agarwal’s claim, the complaint does not allege that she suffered a

deprivation of liberty consistent with the concept of seizure as a consequence of a legal

proceeding. See Donahue v. Gavin, 280 F.3d 371, 380-82 (3d Cir. 2002) (discussing

requirement of a Fourth Amendment violation to establish malicious prosecution).

Although the Agarwals aver that a warrant was issued before the second complaint was

dismissed, Madhu Agarwal was never arrested and it appears that the only restriction on

her liberty was the requirement that she appear in court. This restriction is insufficient to

state a claim for malicious prosecution under § 1983. See DiBella v. Borough of

Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (holding attendance at trial is not a

“seizure” in a § 1983 malicious prosecution action for violation of the Fourth




                                              4
Amendment). Thus, the complaint was properly dismissed.1

       In addition, we agree with the District Court that the State of New Jersey is

immune from suit under the Eleventh Amendment, Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 66-67 (1989), and that Judge Rodriguez is immune from liability for

his judicial acts. Figueroa v. Blackburn, 208 F.3d 435, 441-43 (3d Cir. 2000). The

Agarwals also fail to state a claim against the City of Jersey City, which is only liable

under § 1983 for violations resulting from official municipal policy or custom. Monell v.

Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978). The Agarwals have not alleged such a

violation. Finally, we need not consider the District Court’s decision that the individual

Jersey City defendants are entitled to qualified immunity because, as discussed above, the

allegations in the complaint do not establish the violation of a constitutional right.

Donahue, 280 F.3d at 378.

       Accordingly, we will affirm the District Court’s order. The Agarwals’ motion to

proceed on the original record, which we construe as a motion to expand the record, is

denied.



   1
    We also conclude that it would be futile to allow amendment of the complaint. The
District Court appears to have reviewed a proposed amended complaint submitted by the
Agarwals, which was not docketed or filed or included in the record. The Agarwals’
other District Court filings suggest that they sought to bring additional claims of
malicious prosecution based on other complaints filed against them in municipal court.
The Agarwals, however, have not addressed the substance of their proposed amended
complaint in their opening brief and they have thus waived any argument that the District
Court erred in denying their motion to amend. Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.
1993).

                                              5
