                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 09-3285
                                      ___________

                               ANDREW KUNDRATIC,
                                            Appellant

                                            v.

           GARY THOMAS; SOPHIA KUNDRATIC, a/k/a Carol Kundratic
                       _______________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          D.C. Civil Action No. 08-cv-1652
                             (Honorable William J. Nealon)
                                   ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 10, 2011

               Before: SCIRICA, BARRY and GARTH, Circuit Judges.

                               (Filed January 25, 2011 )
                                  _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      After a tawdry series of events, plaintiff Andrew Kundratic filed a civil rights

complaint under 42 U.S.C. § 1983 against defendants Sophia Kundratic (his wife) and

Gary Thomas (her paramour, a Pennsylvania State Trooper and neighbor). Plaintiff
alleged violations of his rights under the First and Fourth Amendments as incorporated

by the Fourteenth Amendment. The District Court granted defendants‘ motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). We will affirm.

                                              I.

       The factual allegations in plaintiff‘s Complaint are these:1 with the active and

willing participation of Thomas‘ wife, defendants became involved in a sexual

relationship. Sophia Kundratic encouraged plaintiff to engage in his own extramarital

affair with Thomas‘ wife, but plaintiff declined to partake in the escapades. Plaintiff

claims Sophia‘s behavior caused her to neglect their daughter and gradually led to the

erosion of their marriage.

       At times, plaintiff would return home to find Thomas‘ van idling in his driveway

with defendants inside. On one such occasion, in February 2007, plaintiff ordered

Thomas to leave his property. Unmoved, Thomas resisted ―in a threatening manner.‖

After plaintiff called 911, Thomas allegedly told Sophia she should redirect the officers

to his house for him to ―take care of it.‖ Thomas then threatened future retaliation against

plaintiff.

       On April 21, 2007, Sophia Kundratic filed assault and harassment charges against

plaintiff after a domestic incident in which plaintiff, according to the police report,


1
  ―When considering a district court‘s grant of a motion to dismiss under Rule 12(b)(6),
we accept all factual allegations in the complaint as true and view them in the light most
favorable to the plaintiff.‖ Umland v. Planco Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir.
2008) (internal quotation omitted).
                                              2
shoved her through a backyard shed door, causing her to fall to the ground and strike her

head and the left side of her body.2 See 18 Pa. Cons. Stat. §§ 2701(a)(1), 2709(a)(1).

Plaintiff claims Thomas, following through with his pledge to retaliate, was the animating

force behind Sophia‘s decision to press charges. Plaintiff also asserts that, en route to his

arraignment, the Rice Township police vehicle in which he was being transported was

overtaken by a Pennsylvania State Police car occupied by Thomas. By virtue of his

advance arrival, Thomas was able to exploit his friendship with the magisterial district

judge to ensure bail would be set at the ―unusually high‖ amount of $20,000. Plaintiff

ultimately was found guilty of the harassment charge; the assault charge was dismissed.

                                              II.

       Plaintiff initiated this action in the District Court for the Middle District of

Pennsylvania on September 4, 2008. He alleged violations of his First and Fourth

Amendment rights and additionally pursued state law claims for civil conspiracy and

intentional infliction of emotional distress. Defendants moved to dismiss on January 20,

2009. Plaintiff filed an amended complaint on March 2, 2009, and defendants again

moved to dismiss. On July 2, 2009, the District Court granted defendants‘ motion.

Plaintiff timely appealed.3

                                              III.

2
  Although plaintiff‘s Complaint fixes the date of this incident at February 22, 2007, the
police report reveals it occurred in April. As explained below, this discrepancy casts
doubt on plaintiff‘s First Amendment claim.
3
  The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have
jurisdiction to review the District Court‘s final order under 28 U.S.C. § 1291.
                                               3
                                             1.

       We review de novo the District Court‘s grant of defendants‘ motion to dismiss for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Ballentine v.

United States, 486 F.3d 806, 808 (3d Cir. 2007). ―The test in reviewing a motion to

dismiss for failure to state a claim is whether, under any reasonable reading of the

pleadings, [the] plaintiff may be entitled to relief.‖ Holder v. City of Allentown, 987 F.2d

188, 194 (3d Cir. 1993). The defendant bears the burden of proving the plaintiff has

failed to articulate a claim upon which relief could be granted. Gould Elecs., Inc. v.

United States, 220 F.3d 169, 178 (3d Cir. 2000). In the context of a section 1983 claim, a

plaintiff may withstand a motion to dismiss if his complaint ―sufficiently alleges a

deprivation of any right secured by the constitution.‖ Holder, 987 F.2d at 194 (quoting

D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1367 (3d Cir.

1992)).

       However, we ―draw on the allegations of the complaint . . . in a realistic, rather

than a slavish, manner,‖ City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263

(3d Cir. 1998), and we ―are not . . . required to accept as true unsupported conclusions

and unwarranted inferences,‖ Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light

Co., 113 F.3d 405, 417 (3d Cir. 1997), cert. denied, 118 S. Ct. 435 (1997). ―While Rule

12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‗it strikes

a savvy judge that actual proof of those facts is improbable,‘ the ‗[f]actual allegations

must be enough to raise a right to relief above the speculative level.‘‖ Phillips v. County

                                              4
of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555–56 (2007)).

                                              2.

       To state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege the violation of

a right, privilege or immunity secured by the Constitution or laws of the United States,

and (2) demonstrate the alleged deprivation was committed by a person acting under

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).4 In granting defendants‘ motion

to dismiss, the District Court held the factual allegations in plaintiff‘s Complaint were

insufficient to support either element. Because plaintiff cannot establish a deprivation of

any constitutional right, he is not entitled to relief under § 1983.5

                                              A.

        ―[T]he right of access to the courts . . . must be freely exercisable without

hindrance or fear of retaliation.‖ Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000)

(quoting Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981)). A § 1983 retaliation


4
  42 U.S.C. § 1983 provides, in pertinent part:
        Every person who, under color of any statute, ordinance, regulation,
        custom, or usage, of any State . . . subjects, or causes to be subjected, any
        citizen of the United States or other person within the jurisdiction thereof to
        the deprivation of any rights, privileges, or immunities secured by the
        Constitution and laws, shall be liable to the party injured in an action at
        law, suit in equity, or other proper proceeding for redress . . . .
5
  Assuming arguendo plaintiff could demonstrate defendants acted under color of state
law, his wholesale inability to set forth facts in support of his constitutional claims
rendered his Complaint susceptible to dismissal on a 12(b)(6) motion. Because plaintiff‘s
failure to set forth facts attesting to one of the essential elements of a section 1983 claim
forecloses recovery, we need not address the state action prong.
                                               5
claim predicated on the First Amendment requires a plaintiff to show (1) he engaged in a

protected activity; (2) the defendant responded with retaliatory action sufficient to deter a

person of ordinary firmness from exercising his rights; and (3) a causal connection

between the protected activity and the retaliatory action. Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

       Here, plaintiff contends his First Amendment right to petition for a redress of

grievances was infringed when defendants retaliated against him for calling the police in

support of his effort to expel Thomas from his driveway. Plaintiff claims Thomas

leveraged his ―official status‖ and his ―access‖ to state authorities ―to oppress Plaintiff‘s

right to seek redress.‖ The District Court found plaintiff could not satisfy the final

element of the retaliation analysis because the causal linkage between the February

driveway incident and his April arrest was ―too attenuated to support a conclusion that

the 911 call led to his arrest.‖

       We too find plaintiff‘s purported discernment of a causal nexus between his 911

call and the subsequent police response too flimsy to warrant credence. The police report

recounts in meticulous detail the circumstances leading to plaintiff‘s arrest on the assault

and harassment charges. The Rice Township officers were dispatched to the scene of an

altercation and acted accordingly; nothing suggests their conduct was propelled by a

retaliatory impulse or anything other than their duty to enforce Pennsylvania law within

the context of a discrete disturbance. The officers swore out a Probable Cause Affidavit,

and a neutral magistrate set bail. Because plaintiff cannot plead facts raising his right to

                                              6
relief ―above the speculative level,‖ this claim must fail. See Phillips, 515 F.3d at 234

(internal quotation omitted).

       On appeal, plaintiff submits that ―the threat alone to retaliate is sufficient to

support a First Amendment retaliation claim insofar as an official threat is sufficient to

deter a person of ordinary firmness in the pursuit of his First Amendment rights.‖ In the

abstract, this contention has a kernel of merit. See Brodheim v. Cry, 584 F.3d 1262, 1270

(9th Cir. 2009) (―[T]he mere threat of harm can be an adverse action . . . because the

threat itself can have a chilling effect.‖); Burgess v. Moore, 39 F.3d 216, 218 (8th Cir.

1994) (finding the threat to retaliate against a prisoner sufficient to establish a First

Amendment violation). For a threat to be actionable on a section 1983 retaliation claim, it

would have to dissuade a plaintiff from engaging in protected action in the future. See

Virginia v. Hicks, 539 U.S. 113, 119 (2003) (expressing concern that the mere threat to

enforce an overbroad law ―may deter or ‗chill‘ constitutionally protected speech‖). Here,

Thomas‘ alleged threat to retaliate came after plaintiff had called 911, and plaintiff did

not indicate he intended to pursue further legal action. A chilling effect, by nature, can

only have prospective ramifications; because plaintiff's protected activities were already

completed when Thomas vocalized his threat, plaintiff would have us hold that the threat

retroactively silenced completed speech. Therefore, because plaintiff does not allege that

Thomas‘ threat deterred him from engaging in protected activity, this threat is not of the

type that can underpin a section 1983 retaliation claim.

                                               B.

                                               7
       Plaintiff contends defendants violated his Fourth Amendment rights by

collaborating with local law enforcement officials to initiate and pursue a baseless

criminal prosecution. In Pennsylvania, a party advancing a malicious prosecution claim

must demonstrate that (1) the defendant initiated a criminal proceeding; (2) the

proceeding ended in the plaintiff‘s favor; (3) the proceeding was initiated without

probable cause; and (4) the defendants acted maliciously or for a purpose other than

bringing the plaintiff to justice. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d

Cir. 2000). A plaintiff anchoring a 1983 claim on an allegedly malicious prosecution

must establish both the common law elements of the tort and a ―deprivation of liberty

consistent with the concept of seizure as a consequence of a legal proceeding.‖ Estate of

Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).

       Although the assault charge plaintiff decries as ―bogus‖ was ultimately dismissed,

plaintiff was found guilty on the related harassment charge. In forwarding his 1983 claim,

plaintiff attempts to decouple these offenses; he posits that, in isolation, the harassment

charge would not have supported the deprivations of liberty he was forced to endure.

However, we do not allow this type of conceptual severance within the framework of a

1983 malicious prosecution claim. An essential element of the Pennsylvania tort is that

the criminal proceeding must have terminated in favor of the accused. Recently, we have

held that ―the favorable termination of some but not all individual charges does not

necessarily establish the favorable termination of the criminal proceeding as a whole.‖

Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009) (en banc). We wrote,

                                              8
       The favorable termination element is not categorically satisfied whenever
       the plaintiff is acquitted of just one of several charges in the same
       proceeding. When the circumstances — both the offenses as stated in the
       statute and the underlying facts of the case — indicate that the judgment as
       a whole does not reflect the plaintiff‘s innocence, then the plaintiff fails to
       establish the favorable termination element.

Id. Therefore, we have expressly forbidden precisely the type of parsing plaintiff proffers.

Because plaintiff cannot demonstrate the proceeding ―as a whole‖ terminated in his favor,

the conviction on the harassment count — which arose out of the same incident that

occasioned the assault charge — necessarily prevents plaintiff from prevailing on any

malicious prosecution claim stemming from that incident. Accordingly, his 1983 claim

must also fail.

                                             IV.

       Lastly, the District Court denied plaintiff leave to file a second amended

complaint.6 Plaintiff filed an amended complaint after defendants filed their first motion

to dismiss. See Fed. R. Civ. P. 15(a)(1) (permitting a party to amend its pleading once as

a matter of course). Concluding plaintiff was thus ―on notice of the arguments forming

the basis of defendants‘ motion and . . . had the opportunity to rectify the potential

problems in the complaint,‖ the court rejected plaintiff‘s motion for leave to amend his

Complaint once more. See Fed. R. Civ. P. 15(a)(2) (instructing courts to ―freely give

leave when justice so requires‖).




6
 We review the District Court‘s decision to deny plaintiff leave to amend for abuse of
discretion. Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).
                                              9
       In general, the liberality of the pleading regime is accentuated within the civil

rights context. We have ―consistently held that when an individual has filed a complaint

under § 1983 which is dismissible for lack of factual specificity, he should be given a

reasonable opportunity to cure the defect, if he can, by amendment of the complaint and

that denial of an application for leave to amend under these circumstances is an abuse of

discretion.‖ Darr v. Wolfe, 767 F.2d 79, 81 (3d Cir. 1985), abrogated on other grounds

by Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004). However, a district court need not

grant leave to amend a complaint if ―the complaint, as amended, would fail to state a

claim upon which relief could be granted.‖ Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.

2000). Moreover, a court ―has discretion to deny a plaintiff leave to amend where the

plaintiff was put on notice as to the deficiencies in his complaint, but chose not to resolve

them.‖ Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 2002).

       Here, defendants‘ motion to dismiss placed plaintiff on notice of the Complaint‘s

deficiencies, and plaintiff proved unable to cure these fatal shortcomings. Plaintiff‘s

initial amendment consisted of a few cosmetic changes, but he failed to augment his

pleading with additional factual allegations sufficient to withstand a 12(b)(6) motion. See

Krantz, 305 F.3d at 144. We are convinced a second attempt would be fruitless.

Plaintiff‘s First Amendment claim falters because disinterested officers, undertaking their

duties, made a probable cause determination and placed plaintiff under arrest. Plaintiff

has not alleged these officers possessed a retaliatory motive, and thus he cannot

demonstrate a causal link between his 911 call and his arrest two months later. Moreover,

                                             10
his claim that Thomas‘ threat alone was sufficient to backstop a First Amendment claim

is nullified by the chronological fact that the threat followed the protected action and did

not stymie plaintiff‘s efforts to engage in protected activity. Finally, plaintiff‘s

harassment conviction renders his Fourth Amendment claim nonviable notwithstanding

any additional factual allegations he might include in an amended Complaint.

                                              V.

       For the foregoing reasons, we will affirm.




                                              11
