                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-2958
                                      _____________

                                   TIM HAMBORSKY,
                                               Appellant

                                             v.

                       THOMAS O’BARTO; LARRY MEDLOCK
                               _______________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (D.C. No. 2-12-cv-00428)
                     District Judge: Honorable Terrence F. McVerry
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     June 2, 2015

             Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.

                                   (Filed: June 4, 2015)
                                    _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Tim Hamborsky appeals an order of the United States District Court for the

Western District of Pennsylvania entering summary judgment against him on his claims

for malicious prosecution and conspiracy. He specifically argues that the District Court

       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
erred in finding that there was probable cause to institute a prosecution against him. We

disagree and will affirm.

I.     Background

       A.     Factual Background

       On November 5, 2008, Hamborsky, who was a Correctional Officer employed by

the Fayette County Prison, concealed a bag containing snuff tobacco, Vicodin pills, and

cash in his jacket and smuggled it into the prison. Unbeknownst to Hamborsky, he was

the target of a sting operation. Erin Spade, an inmate serving a sentence in the prison and

the person to whom Hamborsky had agreed to deliver the contraband, had previously

approached the then-Warden, Larry Medlock, with information implicating Hamborsky

in criminal acts. Spade told Medlock that Hamborsky had smuggled contraband into the

prison for him in the past. Spade suggested that, if Medlock would talk to the district

attorney about reducing pending charges against him, Spade would work with Medlock

to expose Hamborsky as a smuggler.

       After his conversation with Spade, Medlock contacted Detective Thomas O’Barto

of the Fayette County Drug Task Force. Medlock and O’Barto met with Spade, and

Spade stated that he could arrange for Hamborsky to smuggle drugs and tobacco into the

prison. The three of them agreed to arrange an undercover effort to catch Hamborsky.

       Spade met with Hamborsky and instructed him to pick up a package on November

5, 2008, that would be concealed underneath a newspaper vending machine near the

Fayette County Courthouse, which was close to the prison. At around 11:30 p.m. on the

appointed day, Hamborsky retrieved the package. It contained tobacco, four Vicodin

                                             2
pills, and $75 in cash. Hamborsky concealed the package in the left shoulder of his coat

and proceeded into the prison. Once he was inside the prison, Medlock and O’Barto

stopped and escorted him to the office of then-District Attorney Nancy Vernon.

Hamborsky admitted to bringing the package into the prison for Spade but he denied

knowing illegal drugs were in the package. He was then arrested, questioned, and

eventually arraigned by video and freed on bond pending trial.

       Hamborsky was charged in state court with possession of a controlled substance,

possession with intent to deliver a controlled substance, and transporting contraband. At

the preliminary hearing, Spade gave the following testimony:

       Q:       What did you tell the officer?

       A:       That I can have Mr. Hamborsky bring some tobacco or whatever I
                basically wanted him to bring in.

       Q:       Now, what did you mean by “or whatever I basically wanted him to
                bring in”?

       A:       Drugs or tobacco or snuff or whatever.

(App. at 352-53.) Important to Hamborsky’s argument in this case, Spade also offered

the following testimony:

       Q:       Had you informed the officer that he had done this in the past?

       A:       I have heard it in the jail. He never brought it to me in the past, but I
                heard it in the jail, yes.

(Id. at 353.)

       The matter went to trial and the jury returned a verdict of not guilty.




                                                 3
       B.     Procedural History

       Hamborsky initiated this action on April 3, 2012, asserting claims against

Medlock, O’Barto, Vernon, and Fayette County. The Complaint raised five causes of

action: (1) a claim under 42 U.S.C. § 1983, based on the Fourth and Fourteenth

Amendments, for malicious prosecution; (2) fabrication of false evidence; (3) a

conspiracy claim; (4) state-law claims for malicious prosecution against Vernon,

Medlock, and O’Barto; and (5) a claim under Monell v. Department of Social Services of

New York City, 436 U.S. 658 (1978), against Fayette County. On September 4, 2012, the

defendants moved to dismiss. In lieu of responding, Hamborsky agreed to voluntarily

withdraw his fabrication-of-false-evidence claim and dismiss all of his claims against

Vernon and Fayette County. On November 16, 2012, he filed an Amended Complaint

asserting three causes of action: (1) a section 1983 malicious prosecution claim against

O’Barto; (2) a section 1983 conspiracy claim against Medlock and O’Barto; and (3) a

state-law malicious prosecution claim against O’Barto.

       After the close of discovery, Medlock and O’Barto moved for summary judgment,

which the District Court granted. The District Court noted that, at the time Hamborsky

was charged, “O’Barto knew that Plaintiff had discussed bringing some type of

contraband into the prison for Spade …; he knew that Plaintiff retrieved a bag from under

the newspaper vending machine and brought it into the prison; and he discovered that the

bag contained Vicodin, which is a controlled substance under Pennsylvania law.” (App.

at 9.) “Viewing the circumstances from the perspective of an objectively reasonable

officer,” the District Court stated that “there was probable cause for [Hamborsky’s]

                                            4
prosecution” and, as a result, his “malicious prosecution claims must fail.” (Id. at 9, 12.)

In addition, because Hamborsky failed to establish an underlying violation of his

constitutional rights, the District Court concluded that Medlock and O’Barto were also

entitled to summary judgment on the section 1983 conspiracy claim. Hamborsky timely

appealed.

II.    Discussion1

       In order to make out a claim of malicious prosecution under the Fourth

Amendment,2 a plaintiff must prove that the defendant initiated a criminal proceeding,

the criminal proceeding ended in the plaintiff’s favor, the proceeding was initiated

without probable cause, the defendant acted maliciously or for a purpose other than


       1
         The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s
grant of summary judgment de novo, Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d
Cir. 2007), and must view the facts in the light most favorable to the non-moving party,
drawing all reasonable inferences and resolving all doubts in favor of that party, Doe v.
County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
marks omitted).
       2
        Hamborsky’s complaint also invokes the Fourteenth Amendment in his claim for
malicious prosecution. Medlock and O’Barto argue that it is probably premised on a
substantive due process violation, which cannot form the basis for a malicious
prosecution claim under section 1983. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782,
792 (3d Cir. 2000). We think that, instead, Hamborsky is citing the Fourteenth
Amendment simply for its incorporation of the Fourth Amendment against the state-actor
defendants.

                                             5
bringing the plaintiff to justice, and the plaintiff suffered a deprivation of liberty

consistent with the concept of “seizure” as a consequence of a legal proceeding.3 DiBella

v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005).

       Hamborsky argues that the District Court erred by taking the probable cause

inquiry away from a jury because the facts of this case strongly suggest that there was no

probable cause to initiate the prosecution. He asserts that the following facts, when

viewed in a light most favorable to him, preclude entry of summary judgment for

Medlock and O’Barto: “there was no investigation that indicated Hamborsky was

bringing drugs into the prison”; Spade was a career criminal looking for a deal to reduce

his exposure to criminal liability; Hamborsky maintained from the time of the arrest that

Spade never told him there would be Vicodin pills in the bag; Spade had “testified twice”

that Hamborsky had never provided him drugs before; and O’Barto had good reasons to

believe that Hamborsky was not aware of the Vicodin pills and he doubted Hamborsky

knew about the pills.

       Contrary to Hamborsky’s view, the District Court properly entered summary

judgment against him on the malicious prosecution claims. Simply put, he has not fairly

addressed the District Court’s opinion nor rebutted its reasons for concluding that there




       3
        As mentioned above, Hamborsky also asserted a state-law malicious prosecution
claim against O’Barto. Under Pennsylvania law, the first four elements of the federal
malicious prosecution claim are identical to the state-law tort claim. Kossler v. Crisanti,
564 F.3d 181, 186 n.2 (3d Cir. 2009) (en banc). As a result, the analysis of those
elements of the federal claim applies equally to the Pennsylvania tort claim.
                                               6
was probable cause to prosecute him.4 In order for his malicious prosecution claims to

survive summary judgment, Hamborsky was required to produce evidence that he was

prosecuted without probable cause; that is, that there was no “reasonable ground for

belief of guilt.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks

omitted). The following facts, which were before O’Barto and Medlock at the time the

prosecution was commenced, confirm that there was probable cause to prosecute

Hamborsky for the charged crimes: Spade contacted Medlock to inform him that

Hamborsky was smuggling contraband into the prison; Spade told Medlock that

Hamborsky would provide him with anything, including controlled substances; Spade

told Medlock that Hamborsky had delivered contraband to him in the past; Medlock had

suspicions about Hamborsky because he had intercepted inmate communications that

referenced a person named “Tim” or “Hambone” as a correctional officer who provided

contraband to inmates; O’Barto met with Spade and, subsequently, Spade arranged for

Hamborsky to smuggle contraband into the prison; O’Barto viewed video surveillance

and witnessed Hamborsky perform all of the acts Spade told O’Barto that he would ask

Hamborsky to perform; and O’Barto viewed video surveillance and witnessed

Hamborsky conceal the package in his jacket and carry it into the prison.

       Hamborsky does not dispute any of those facts. Instead, he argues that they are

insufficient to create reasonable grounds for believing that he was guilty of the charged

crimes given his repeated statements that Spade never told him that the bag would


       4
        Because we conclude that there was probable cause to prosecute, we need not
address the parties’ other arguments as to malicious prosecution or qualified immunity.
                                             7
contain Vicodin and given his subsequent acquittal at trial. Hamborsky also focuses on a

factual discrepancy that he believes creates a genuine issue of material fact: O’Barto and

Medlock both said that Spade told them that Hamborsky brought him drugs in the past,

but Spade testified at the preliminary hearing and at trial that he had not previously

received drugs from Hamborsky.

       We do not agree with Hamborsky’s arguments. First, while Spade was not

completely credible and may even have lied to O’Barto when he told O’Barto that he had

arranged for Hamborsky to smuggle narcotics into the prison, the fact remains that Spade

told O’Barto that he did so and Hamborsky actually did smuggle narcotics into the prison

during the sting. O’Barto’s belief that Hamborsky was guilty of the charged crimes was

reasonable. Second, while it is true that, at the preliminary hearing, Spade recanted a

statement he allegedly made to Medlock and O’Barto – namely, that Hamborsky had

previously smuggled contraband for Spade – that recantation came later. When the

decision to prosecute Hamborsky was made, Spade’s claim was both credible and

unrebutted. Indeed, Spade got Hamborsky to do precisely what Spade had said he had

done before. After witnessing Hamborsky pick up a bag containing tobacco, Vicodin,

and $75 cash and then surreptitiously carry it into the prison, there were reasonable

grounds for O’Barto and Medlock to believe that Hamborsky was guilty of the charged

crimes. Therefore, probable cause existed to institute the prosecution, and Hamborsky’s

malicious prosecution claims fail.

       Given our conclusion that the malicious prosecution claims fail, Hamborsky’s

conspiracy claim must also fail because there is no underlying violation of his

                                             8
constitutional rights, which is a prerequisite for conspiracy liability. See In re Orthopedic

Bone Screw Prods. Liab. Litig., 193 F.3d 781, 789 (3d Cir. 1999) (stating that “civil

conspiracy requires a separate underlying tort as a predicate for liability”).

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s entry of summary

judgment against Hamborsky.




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