                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-4061
                                       ___________

                           JOSEPH CLIFFORD MALCOMB,
                                            Appellant

                                             v.

                     CRAIG MCKEAN, Pennsylvania State Police;
                     JOSHUA THOMAS, Pennsylvania State Police
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                          (D.C. Civil Action No. 11-cv-01087)
                      District Judge: Honorable Arthur J. Schwab
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 24, 2015

              Before: CHAGARES, JORDAN and COWEN, Circuit Judges

                              (Opinion filed: April 24, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Joseph Malcomb, proceeding pro se and in forma pauperis, appeals a District

Court order granting the defendants’ motion for summary judgment. We will affirm.

       As we write primarily for the parties, we need not recite at length the details of


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
this case. On December 21, 2007, the defendants, who are two Pennsylvania State Police

officers, executed a search of Malcomb’s residence pursuant to a warrant, which led to

the discovery of certain pieces of property that were believed to be stolen. Malcomb,

who had recently had his parole revoked, was thereafter charged with offenses related to

receiving stolen property. In May 2009, however, the state trial court granted a motion to

suppress the allegedly stolen goods, ruling that the officers had searched beyond the

scope of the authorizing warrant, that the warrant was impermissibly general, and that the

affidavit supporting the warrant failed to identify the source of its information. The

stolen property charges against Malcomb were dismissed pursuant to a grant of nolle

prosequi in September 2009.

       On August 14, 2011, Malcomb filed a complaint in the United States District

Court for the Western District of Pennsylvania, alleging constitutional and state-tort

theories of false arrest, malicious prosecution, intentional infliction of emotional distress,

and illegal search and seizure. The Magistrate Judge recommended that the complaint be

dismissed with prejudice under 28 U.S.C. § 1915A because the majority of the claims

were filed outside of the two-year statute of limitations period, and also because the one

timely claim – for malicious prosecution – was defective. In particular, the Magistrate

Judge found that Malcomb could not establish that the criminal proceeding had been

disposed of in his favor. The District Court adopted the Report and Recommendation.

Malcomb appealed and, with the assistance of appointed counsel, argued only that the

District Court erred in dismissing Malcomb’s malicious prosecution claim for failure to




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establish favorable termination.1 We held that the nolle prosequi disposition of the

charges against Malcomb was a favorable termination, and remanded the matter to the

District Court. See Malcomb v. McKean, 535 F. App’x 184, 187 (3d Cir. 2013) (not

precedential).

       The defendants filed a motion for summary judgment, which the Magistrate Judge

recommended granting. The Magistrate Judge concluded that the malicious prosecution

claim failed because there was probable cause to charge Malcomb with receiving stolen

property, because the defendants did not act maliciously, because Malcomb did not suffer

a deprivation of liberty, and because one of the defendants, Trooper Thomas, did not

initiate the criminal proceedings against Malcomb.2 Over Malcomb’s objections, the

District Court adopted the Report and Recommendation and dismissed the complaint

with prejudice. Malcomb appealed.

       We have jurisdiction under 28 U.S.C. § 1291. Our review of an order granting

summary judgment is plenary. See Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 415 (3d Cir.

2011). Summary judgment is proper where, viewing the evidence in the light most

favorable to the nonmoving party and drawing all inferences in favor of that party, there

is no genuine dispute as to any material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-


1
 Malcomb waived appeal of the remaining claims because he did not raise them in his
brief. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994).
2
 In the alternative, the Magistrate Judge stated that the defendants were entitled to
qualified immunity, and that one of the defendants, Trooper Thomas, did not initiate the
criminal proceeding.
                                            3
23 (3d Cir. 2006). We may affirm the District Court’s grant of summary judgment on

any basis supported by the record. See Fairview Township v. EPA, 773 F.2d 517, 525

n.15 (3d Cir. 1985).

       In order to state a malicious prosecution claim, Malcomb must show that 1) the

defendants initiated a criminal proceeding, 2) the proceeding ended in his favor, 3) the

proceeding was initiated without probable cause, 4) the defendants acted maliciously or

for a purpose other than bringing him to justice, and 5) he suffered a deprivation of

liberty. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc). In their motion

for summary judgment, the defendants argued, inter alia, that Malcomb did not suffer a

deprivation of liberty. We agree. The undisputed facts demonstrate that Malcomb was

already in custody as a technical parole violator when he was charged with receiving

stolen property. According to the defendants, he was “never was arrested as a result of

the search of his property, [the] seizure of the items located in his house, or the charges

brought against him.” Malcomb possibly was required to attend the suppression hearing,

but his forced attendance does not constitute a deprivation of liberty for purposes of a

malicious prosecution claim. See DiBella v. Borough of Beachwood, 407 F.3d 599, 603

(3d Cir. 2005) (stating that “[t]he type of constitutional injury the Fourth Amendment is

intended to redress is the deprivation of liberty accompanying prosecution, not

prosecution itself”). Malcomb remained incarcerated for the technical parole violation

until 2013. During this period, he was denied re-parole several times. Although he

claims that his “parole eligibility was placed in limbo” because of the stolen property

charges, the Parole Board’s decisions demonstrate that the denial of re-parole was based

                                              4
on factors completely unrelated to the pending charges. Therefore, there was no seizure

as a result of the stolen property charges, Malcomb’s Fourth Amendment rights were not

violated, and the District Court did not err in granting the defendants’ motion for

summary judgment on Malcomb’s malicious prosecution claim.

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




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