                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2007

Johnson v. Knorr
Precedential or Non-Precedential: Precedential

Docket No. 05-5029




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                                      PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT



               Nos. 05-5029 and 05-5139


                 GAMAL JOHNSON,

                               Appellant in No. 05-5029

                          v.

  PAROLE AGENT DAVID KNORR, INDIVIDUALLY & AS A
PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;
  PAROLE AGENT WILLIAM JONES INDIVIDUALLY & AS A
 PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;
   COMMONWEALTH OF PENNA. DEPT. OF PROBATION
          & PAROLE; POLICE OFFICER JOHN DOE
  INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY
    OF PHILADELPHIA; POLICE OFFICER RICHARD ROE
  INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY
        OF PHILADELPHIA; CITY OF PHILADELPHIA


                 GAMAL JOHNSON

                          v.

 PAROLE AGENT DAVID M. KNORR, INDIVIDUALLY & AS A
PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;
  PAROLE AGENT WILLIAM JONES, INDIVIDUALLY & AS A
 PAROLE OFFICER FOR THE COMMONWEALTH OF PENNA.;
        COMMONWEALTH OF PENNSYLVANIA DEPT.
OF PROBATION AND PAROLE; POLICE OFFICER JOHN DOE,
   INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY
     OF PHILADELPHIA; POLICE OFFICER RICHARD ROE,
   INDIVIDUALLY & AS A POLICE OFFICER FOR THE CITY
         OF PHILADELPHIA; CITY OF PHILADELPHIA

                      David Knorr,
                                         Appellant in No. 05-5139



           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                     (D.C. Civ. No. 01-03418)
            Honorable Legrome D. Davis, District Judge


                     Argued November 9, 2006

             BEFORE: SLOVITER, CHAGARES, and
                 GREENBERG, Circuit Judges

                     (Filed: February 14, 2007)


Martin Stanshine (argued)
Stanshine & Sigal
1528 Walnut Street
Suite 700
Philadelphia, PA 19102

   Attorneys for Appellant in No. 05-5029
   and Appellee in No. 05-5139

Thomas W. Corbett, Jr.
Attorney General
John G. Knorr, III (argued)
Chief Deputy Attorney General
Chief, Appellate Litigation Sector
Patrick J. McMonagle
Deputy Attorney General
Office of the Attorney General of
Pennsylvania
Department of Justice
Strawberry Square
Harrisburg, PA 17120

   Attorneys for Appellant in No. 05-5139
   and Appellee in No. 05-5029



                                     2
Mia Carpiniello
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102

   Attorney for City of Philadelphia


                      OPINION OF THE COURT


GREENBERG, Circuit Judge.

                          I. INTRODUCTION

        This matter comes on before the court on an appeal and cross-
appeal from a district court order entered on October 31, 2005, in
which the court granted summary judgment in favor of David Knorr,
an agent of the Pennsylvania Board of Probation and Parole (“the
Board”), in this action that a parolee subject to the Board’s
supervision, Gamal Johnson, brought against him. See Johnson v.
Knorr, Civ. No. 01-3418, 2005 WL 3021080 (E.D. Pa. Oct 31, 2005).
The incident giving rise to this case occurred on September 6, 2000,
when there was an altercation in the Board’s Philadelphia office
between Johnson and Knorr.1 At that time Board agents arrested
Johnson in the office following which they took him to a district
police station in Philadelphia for processing. On the basis of
information that Knorr supplied to him, the investigating detective,
Ronald Dove, with the approval of a Philadelphia assistant district
attorney, filed a complaint against Johnson charging him with simple
assault, aggravated assault, making terroristic threats, and reckless
endangerment, all arising out of the altercation at the Board’s office.


        1
         We are not certain whether the persons being served in the office
were on probation or parole or both, but the distinction is not material for
our purposes. Thus, we will refer to all the individuals as parolees. We
do note, however, that in Johnson v. Knorr, Civ. No. 01-3418, 2003 WL
22657125, at *1 (E.D. Pa. Oct. 28, 2003), the court indicated that the
sentence imposed on Johnson was a three-year term of probation. Yet
in Johnson v. Knorr, 2005 WL 3021080, at *1, the court referred to
Johnson as a “parolee.”

                                     3
        Subsequently, however, a state court dismissed the charges
following which Johnson initiated civil proceedings arising from the
incident in the Philadelphia County Court of Common Pleas under 42
U.S.C. § 1983 and under state law against Knorr and certain other
defendants who no longer are parties to this litigation. Initially
Johnson charged Knorr under section 1983 with violation of his rights
under the Fourth, Fifth and Fourteenth Amendments, and under state
law on theories of false arrest, false imprisonment, and assault and
battery, though not with malicious prosecution under either federal or
state law. The defendants removed the case to the district court which
ultimately granted Knorr summary judgment dismissing Johnson’s
claims, holding, inter alia, that the agents had probable cause to arrest
Johnson for making terroristic threats though it did not make a
probable cause finding on their other bases for Johnson’s arrest. On
Johnson’s appeal, though we upheld the dismissal of Johnson’s
original claims and expressly upheld the finding with respect to
probable cause for Johnson’s arrest for making terroristic threats, we
nevertheless reversed the order of the district court to the extent that
we remanded the case to the district court to allow Johnson to assert
claims for malicious prosecution. See Johnson v. Knorr, 130 Fed.
Appx. 552 (3d Cir. 2005).

         On the remand Johnson amended his complaint to advance
claims for malicious prosecution under section 1983 predicated on the
Fourth Amendment and under state law. Subsequently, Knorr again
moved for summary judgment. In the disposition of that motion the
district court, after noting that on the first appeal we upheld its finding
that Knorr had probable cause to believe that Johnson had committed
the crime of making terrorists threats, dismissed Johnson’s malicious
prosecution claim under section 1983 as the finding of probable cause
barred the malicious prosecution claims for prosecution of all the
criminal charges. The court, however, after rejecting Knorr’s
sovereign immunity defense to the state law claims, remanded those
claims to the common pleas court as it declined to exercise
supplemental jurisdiction over them. Johnson then appealed and
Knorr cross-appealed as he challenged the district court’s action in
rejecting his sovereign immunity defense to the state law claims even
though it was remanding those claims to the state court. Thus,
Knorr’s appeal raises a procedural and jurisdictional rather than a
substantive issue.

       The principal issue on these appeals is whether the finding that
the agents had probable cause to arrest Johnson on a charge of making


                                    4
terroristic threats without findings that they also had probable cause
for his arrest on the other charges made against him defeats Johnson’s
cause of action for malicious prosecution on the remaining charges.
In this regard Johnson argues that the district court improperly applied
Wright v. City of Philadelphia, 409 F.3d 595 (3d Cir. 2005), to hold
that “once an officer has probable cause to arrest for one offense, all
possible malicious prosecution claims related to that arrest must also
fail.” Appellant-cross appellee’s br. at 28. Because we believe that
Johnson is correct, we will reverse the order of the district court on
Johnson’s appeal and will remand the case to the district court so that
he may proceed on his malicious prosecution claims in the district
court. Accordingly, we will direct the district court to vacate its order
remanding Johnson’s state law claims to the state court. Therefore,
for the reasons we will set forth below, Knorr’s cross-appeal is moot
and we will dismiss it.



             II. FACT AND PROCEDURAL HISTORY

        Inasmuch as the district court resolved this case by granting
Knorr’s motion for summary judgment, we consider the facts in the
light most favorable to Johnson, though we do not doubt that Knorr’s
version of the events is different. See Gallo v. City of Philadelphia,
161 F.3d 217, 219 (3d Cir. 1998).2 On September 6, 2000, Johnson,
when on parole supervision transferred from Virginia to Pennsylvania,
arrived at the waiting room at the office of the Board of Probation and
Parole in Philadelphia to meet with his parole officer. At that time
there were approximately 15 other parolees in the waiting room.
While Johnson was in the waiting room, he heard another parolee who
Johnson believed was having a seizure fall to the floor. At that point
Johnson and at least two other parolees went to where the parolee had
fallen to assist him. The fallen parolee was bleeding from his head
and foaming from his mouth, and his eyes were rolled back in his


       2
        As we have indicated, in its opinion granting Knorr summary
judgment the district court rejected Knorr’s sovereign immunity defense
to Johnson’s state law claims, and to that extent Knorr has cross-
appealed. This procedural status suggests that with respect to the cross-
appeal we should not consider the facts most favorably to Johnson. We,
however, need not linger on this point as we are disposing of the cross-
appeal on legal grounds and the facts material to our disposition are not
in dispute.

                                    5
head.

        Approximately ten to 20 seconds later, Johnson observed
Knorr and another agent standing in the doorway of the waiting room.
Johnson implored Knorr to render aid to the fallen parolee, but Knorr
did not do so. Instead, Knorr approached Johnson, and cursed at him
and pushed him. There was then a verbal altercation between Knorr
and Johnson, and, when Knorr motioned toward Johnson, Johnson
told Knorr “not to put his hands on [Johnson] again . . . [and that] he
better call some other people out of the back or something,” app. at
231, language that Knorr “[t]ook . . . as a direct threat.” Id. at 268.
Knorr then ordered Johnson to leave the waiting room and pushed
Johnson into the door, which swung open and struck another agent,
William Jones. When several agents attempted to apprehend Johnson
physically, he resisted. The agents eventually subdued Johnson, and
handcuffed and arrested him in the office. Johnson remained in a
detention room at the office for approximately one hour before the
agents transported him to the district police station. As we have
indicated, Detective Dove filed a complaint against Johnson charging
him with simple assault, aggravated assault, making terroristic threats,
and reckless endangerment, Jones being the victim of the alleged
assault. Johnson remained in a cell at the police station for
approximately two days until he was able to “make bail.”3 App. at 17,
392. Following a preliminary hearing on October 18, 2000, a state
court dismissed the charges against Johnson.

        On May 29, 2001, Johnson filed a civil complaint in the Court
of Common Pleas of Philadelphia County against Knorr, Jones, the
Commonwealth of Pennsylvania, the City of Philadelphia
(collectively “defendants”), and two unnamed Philadelphia police
officers whom Johnson never has identified and who thus have not
been served with process or participated in this case.4 Johnson
alleged, inter alia, that he had been unlawfully searched and seized,
arrested, and imprisoned, and that the defendants violated his due
process rights as protected under the Fourth, Fifth, and Fourteenth


        3
          In his deposition, Johnson could not recall whether he was in the
cell for two or three days. In his civil complaint, Johnson claims that “he
was held in a cell for approximately two (2) days.” App. at 17. The bail
amount was set at $6,000.
        4
         In the circumstances, we are not treating the unidentified officers
as parties to this litigation.

                                     6
Amendments of the United States Constitution and under state law.
Johnson asserted his claims against Knorr and Jones both individually
and in their official capacities. The named defendants removed the
case to the district court.

        On the defendants’ motions the district court dismissed the
action against the Commonwealth of Pennsylvania, the City of
Philadelphia, and Knorr and Jones in their official capacities,
dispositions not at issue on this appeal. At the close of discovery,
Knorr and Jones moved for summary judgment in their individual
capacities. The court, however, denied their motion following which
they filed a joint motion seeking reconsideration of the order denying
the motions. The motion for reconsideration was partially successful
as the district court granted summary judgment to Jones, though it
continued to deny summary judgment to Knorr. In denying summary
judgment to Knorr, the court found that, although there was a
“sufficient basis for arresting [Johnson] for the offense of terroristic
threats . . . Johnson has presented a sufficient factual basis on the
limited question of whether Agent Knorr fabricated the assault upon
Parole Agent Jones.” Johnson v. Knorr, Civ. No. 01-CV-3418, 2003
WL 22657125, at *5-6 (E.D. Pa. Oct. 28, 2003). The court, however,
did not say that Knorr did not have probable cause to arrest Johnson
for the other offenses. Rather, there was a dispute of fact on that
point.

        Yet Knorr’s attempts to terminate the action against him on
motion prior to trial were not ended for on March 16, 2004, the court
ordered Knorr to submit a supplemental summary judgment motion
“on the discrete issue of whether if probable cause exists as to one
offense, it exists for any offense that could be charged under the
circumstances.” App. at 507.1. After Knorr submitted that motion,
Johnson filed an answer to it seeking its denial, and, alternatively,
seeking to amend his complaint, arguing for the first time that he had
a cause of action under section 1983 for malicious prosecution on the
charges of aggravated assault and recklessly endangering another
person. On June 11, 2004, the district court granted Knorr’s
supplemental summary judgment motion with respect to Johnson’s
claim of false arrest pursuant to Barna v. City of Perth Amboy, 42
F.3d 809 (3d Cir. 1994), in which we held that to avoid liability a
defendant did not need probable cause for each and every charge but
rather needed probable cause “as to any offense that could be charged
under the circumstances.” App. at 579 (quoting Barna, 42 F.3d at
819). At the same time the district court denied Johnson’s motion to


                                   7
amend his complaint to assert a claim of malicious prosecution.5
Johnson then filed a timely appeal.

         On Johnson’s appeal challenging the dismissal of his false
arrest charges, we affirmed in part and reversed in part. Johnson, 130
Fed. Appx. at 553. First, we affirmed the district court’s order for
summary judgment with respect to Johnson’s claims for false arrest,
explaining that “Johnson’s statement to Knorr that he ‘better call
some other people out of the back or something’ provided probable
cause to believe that Johnson had uttered a terroristic threat.” Id. at
554. We, however, reversed the district court’s order denying
Johnson’s request to amend his complaint to assert constitutional
violations based on a malicious prosecution theory, as we concluded
that Knorr failed to specify how “allowing the amendment would be
prejudicial to him.” Id. at 555. Thus, we remanded the case so that
Johnson could file an amended complaint predicated on malicious
prosecution. At that point Johnson’s original charges no longer were
in the case as all the defendants had judgments in their favor on all the
initial federal and state charges against them. Nevertheless, Knorr
still was subject to the malicious prosecution claims that Johnson
originally had not advanced.

        On the remand, on May 26, 2005, Johnson filed an amended
complaint against Knorr in which he reasserted the causes of action
from his original complaint but added a cause of action alleging
constitutional and state law malicious prosecution. App. at 600-05.
Johnson claimed that Knorr “provid[ed] knowingly false information
to the Philadelphia police, thus resulting in [Johnson’s] malicious
prosecution for several offenses, including aggravated assault[,]
terroristic threats, recklessly endangering another person[,] and simple
assault[,] despite the fact that [Knorr] knew or should have known




       5
          In his complaint, Johnson did not set forth a claim of malicious
prosecution. Nevertheless, according to Johnson, as he asserted in his
brief opposing Knorr’s motion for summary judgment, the complaint and
the subsequent motions “clearly advise[d] [Agent Knorr] of all of the
facts of a constitutional violation based on malicious prosecution.” App.
at 573. Johnson nonetheless requested to amend his complaint “in the
event that it is believed that placing the words ‘malicious prosecution’
in the complaint is necessary.” App. at 533.

                                    8
that [Johnson] had committed none of these offenses.”6 App. at 604.
Knorr again moved for summary judgment following which on
October 31, 2005, the district court granted his motion with respect to
Johnson’s claim alleging unconstitutional malicious prosecution. In
doing so, the district court principally relied on Wright v. City of
Philadelphia, despite the court’s belief that “ideological and
philosophical absurdities . . . [could] accompany the application of
[Wright to the facts of this case.]” Johnson, 2005 WL 3021080, at *8.
The court, however, denied Knorr’s motion for summary judgment
with respect to Johnson’s restated state law causes of action to the
extent that Knorr advanced a defense on sovereign immunity grounds,
and instead remanded Johnson’s state law claims to the Philadelphia
County Court of Common Pleas. Johnson filed an appeal, and Knorr
filed a cross-appeal challenging the district court’s denial of summary
judgment on Johnson’s state law claims on procedural and
jurisdictional grounds contending that inasmuch as the district court
was remanding those claims to the state court it should not have
considered a defense to them.



       III. JURISDICTION AND STANDARD OF REVIEW

       The district court had jurisdiction under 28 U.S.C. §§ 1331,
1367, and 1441, and 1343, and we have jurisdiction under 28 U.S.C. §
1291. Our standard of review is plenary over a grant of a motion for
summary judgment. Dilworth v. Metro. Life Ins. Co., 418 F.3d 345,
349 (3d Cir. 2005). We will affirm the district court’s grant of
summary judgment in favor of Knorr if it appears that “there is no
genuine issue as to any material fact and that [he] is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).



                          IV. DISCUSSION

A. Malicious Prosecution


       6
         The district court has treated the malicious prosecution claims
involved on this appeal as arising solely under the Fourth Amendment.
We note that Johnson also charged the defendants with assault and
battery but we are not concerned with that claim as he made it only under
state law.

                                   9
        We initiate our discussion of the merits of the case by setting
forth germane principles of law. Knorr indicates in his brief that the
issue on Johnson’s appeal is whether his “malicious prosecution claim
is foreclosed by the fact that his arrest was supported by probable
cause.” Appellee-cross-appellant’s br. at 2. Johnson states the issue
in much the same way, though he somewhat expands on Knorr’s
formulation by contending that in addition to causing him to be
arrested for terroristic threats, a charge for which there was probable
cause, Knorr caused Johnson to be arrested at the same time for
charges for which there was not probable cause and fabricated
evidence that Johnson had assaulted him to support those groundless
charges.

        To prove malicious prosecution under section 19837 when the
claim is under the Fourth Amendment, a plaintiff must show that: (1)
the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in his favor; (3) the defendant initiated the
proceeding without probable cause; (4) the defendant acted
maliciously or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered 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).8
Malicious prosecution differs from false arrest inasmuch as “[a] claim


       7
           42 U.S.C. § 1983 provides in part:

       Every person who, under color of any statute, ordinance,
       regulation, custom, or usage, of any State or Territory or
       the District of Columbia, 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 . . . .

       8
         The deprivation of liberty requirement is applicable where the
malicious prosecution claim is under the Fourth Amendment. See infra
n.15. But a constitutional malicious prosecution claim might be brought
raising a First Amendment claim and not implicate liberty issues.
Indeed, that was the situation in the Bivens action of Hartman v. Moore,
126 S.Ct. 1695 (2006).

                                    10
for false arrest, unlike a claim for malicious prosecution, covers
damages only for the time of detention until the issuance of process or
arraignment, and not more.” Montgomery v. De Simone, 159 F.3d
120, 126 (3d Cir. 1998); see also Heck v. Humphrey, 512 U.S. 477,
484, 114 S.Ct. 2364, 2371 (1994) (“[U]nlike the related cause of
action for false arrest or imprisonment, [malicious prosecution]
permits damages for confinement imposed pursuant to legal
process.”); Montgomery, 159 F.3d at 128-29 (Roth, J., dissenting)
(“[A] false arrest claim, in which a person may have been illegally
arrested even though guilty of the prosecuted offense, is very different
from a malicious prosecution claim where the propriety of the
prosecution itself depends on it being initiated with probable cause.”).

        In Wright, 409 F.3d at 603-04, an appeal that involved section
1983 claims for both false arrest and malicious prosecution, we
explained that under Barna v. City of Perth Amboy the plaintiff’s
claim of false arrest would fail because there was probable cause for
her arrest for one of the offenses for which she had been arrested. We
further concluded that the existence of probable cause with respect to
one offense for which the plaintiff was arrested similarly “disposes of
her malicious prosecution claims with respect to all of the charges
brought against her.” 409 F.3d at 604 (emphasis added). We
explained that “[t]o prevail on [a malicious prosecution] claim, [the
plaintiff] must show that the officers lacked probable cause to arrest
her.” Id. 9



        9
          We observe that we adjudicated the issue relating to malicious
prosecution in Wright in a single paragraph without citation of any
precedent. This circumstance, however, does not diminish the
precedential status of that case. We also observe that in light of the facts
of that case, where the circumstances leading to the arrest and
prosecution were totally intertwined, the result was reasonable because
there the officers took their actions by the time of the arrest and thus
before the prosecution. Here, however, Knorr’s conduct was bifurcated
in the sense that the agents first arrested Johnson and then, after the
arrest, Knorr took steps by supplying information to Detective Dove that
led to Johnson’s prosecution. Indeed, in our opinion on the first appeal
in this case, we took note of that point by indicating that Johnson argued
“that he had stated a claim under a malicious prosecution theory,
grounded not in the probation office confrontation, but in Knorr’s
statements about the incident made to Philadelphia police which led to
[his] prosecution.” Johnson, 130 Fed. Appx. at 554.

                                    11
         The Court of Appeals for the Second Circuit has held,
however, that probable cause on one charge does not foreclose a
malicious prosecution cause of action against a defendant for having
brought criminal charges involving different elements. Posr v.
Doherty, 944 F.2d 91, 100 (2d Cir. 1991). In Posr, the plaintiff
asserted, inter alia, false arrest and malicious prosecution claims
against two New York City Police Officers claiming that he was
“unconstitutionally and unlawfully accosted, beaten, arrested, and
jailed for forty hours, until he was able to post bail, on charges that
were ultimately dropped.” Id. at 93. In response to a jury question
during deliberations, the district court instructed the jury that “if the
jury found probable cause supporting any of the three charges of [1]
disorderly conduct, [2] resisting arrest and [3] assault lodged against
[the plaintiff], no liability for malicious prosecution could be found as
to any of the charges filed.” Id. at 100 (emphasis added). The jury
ultimately found the defendant10 not liable on the charge of malicious
prosecution. Id. In concluding that the plaintiff was entitled to a new
trial on the malicious prosecution cause of action, the court of appeals
explained:

       If the rule were the one followed by the district court,
       an officer with probable cause as to a lesser offense
       could tack on more serious, unfounded charges which
       would support a high bail or a lengthy detention,
       knowing that the probable cause on the lesser offense
       would insulate him from liability for malicious
       prosecution on the other offenses.

Id.

       In Luthe v. City of Cape May, 49 F. Supp. 2d 380, 394 (D.N.J.
1999), a case that the district court decided before we decided Wright,
409 F.3d 595, the court explained that “[t]he Third Circuit ha[d] not
decided ‘[w]hether and in what circumstances a plaintiff may
maintain a malicious prosecution action based on one groundless
accusation, when probable cause existed for one or more other
accusations made concurrently . . . .’” (quoting Rivera-Marcano v.
Normeat Royal Dane Quality A/S, 998 F.2d 34, 38 (1st Cir. 1993)).11


       10
         The plaintiff in Posr asserted a malicious prosecution cause of
action against only one of the defendants. 944 F.2d at 94-95.
       11
            Rivera-Marcano was concerned with the law of Puerto Rico.

                                   12
The court then applied the rule that the Court of Appeals for the
Second Circuit set forth in Posr, 944 F.2d 91, and held that “the
existence of probable cause to arrest [the plaintiff] on the charges of
harassment and criminal mischief does not prevent her from
maintaining a cause of action for malicious prosecution on the
baseless charge of burglary.” Luthe, 49 F. Supp. 2d at 396.

        On this appeal, Johnson argues that the district court in this
case erred in relying on Wright to dismiss his claim of malicious
prosecution. In particular, Johnson urges that we limit Wright’s
application to cases “in which the only evidence of malicious
prosecution is lack of probable cause for certain offenses.” Appellant-
cross-appellee’s br. at 18. According to Johnson, Wright is
distinguishable from the present matter “in which fabrication of
evidence and perversion of our system of justice is involved.” Id.

        We agree with Johnson to the extent that we do not understand
Wright to establish legal precedent of such broad application that it
would “insulate” law enforcement officers from liability for malicious
prosecution in all cases in which they had probable cause for the arrest
of the plaintiff on any one charge. See Posr, 944 F.2d at 100. As was
true of the result reached by the district court in Posr, the result
reached by the district court here would allow law enforcement
officers to “tack on more serious, unfounded charges” for which there
was not probable cause either for the arrest or for the initiation of
criminal proceedings merely because there was probable cause for the
arrest on any charge. See id. This result seems unprincipled to us as
there is a distinction on the one hand between a simultaneous arrest on
multiple charges where, in a sense the significance of the charges for
which there was not probable cause for arrest is limited as the plaintiff
in the ensuing civil action could have been lawfully arrested and thus
seized on at least one charge and, on the other hand, prosecution for
multiple charges where the additional charges for which probable
cause is absent almost surely will place an additional burden on the
defendant.

         We also point out that this case is distinguishable from Wright
for there a defendant police officer merely “prepared an affidavit of
probable cause for [the plaintiff’s] arrest,” 409 F.3d at 598, and then,
after an assistant district attorney approved the affidavit, arrested the
plaintiff. Moreover, in Wright the defendants had probable cause to
arrest the plaintiff in the first place, and their involvement apparently
ended at the time of the arrest. In this case, however, according to


                                   13
Johnson, Knorr, after the arrest at Knorr’s office, “advised
Philadelphia Police Detective Ronald Dove that he had been
threatened and an assault had been committed upon Agent Jones.”
App. at 486. In his deposition, Knorr answered in the affirmative
when asked if he wanted Johnson “to be charged,” although “[i]f [the
detectives] would have said we’re not charging him, [he] wouldn’t
have argued the fact.” Id. at 275. Knorr also stated that he “was a bit
agitated” with Johnson based on their confrontation in the waiting
room. Id. Therefore, Johnson’s allegations against Knorr extend
beyond his arrest and relate to Knorr’s statements and conduct in
supplying information to Dove leading to the initiation of criminal
proceedings.

        Furthermore, unlike the plaintiff in Wright, who did not make
similar allegations, Johnson alleges that Knorr intentionally
misrepresented the events that took place in the waiting room, see
appellant-cross-appellee’s br. at 11 (“In order to substantiate criminal
charges being brought against Mr. Johnson, Agent Knorr fabricated,
to Detective Dove, a set of facts which were known to be untrue and
which led to Mr. Johnson’s arrest by the Philadelphia police and
prosecution by the District Attorney’s office.”), and Johnson alleges
that Knorr intentionally and fraudulently fabricated the charges
against him. Therefore, unlike the conduct of the defendants in
Wright, Knorr’s involvement in both the arrest and the initiation of
criminal proceedings against Johnson was more extensive and lasted
beyond the issuing of an affidavit of probable cause for his arrest and
the arrest itself. In the circumstances, for both the legal and factual
reasons we have set forth, we will not apply Wright to this case and
thereby insulate Knorr from liability for the alleged fraudulent
fabrication of baseless charges against Johnson.12

         Our result is not inconsistent with the principle that, in
analyzing false arrest claims, a court to insulate a defendant from
liability need find only that “[p]robable cause . . . . exist[ed] as to any
offense that could be charged under the circumstances.” Barna v. City
of Perth Amboy, 42 F.3d at 819. Thus, we do not question the rule
that there need not have been probable cause supporting charges for


        12
         We reiterate that in view of the procedural posture of the case
we are taking the facts in the light most favorable to Johnson. For all
that we know, it may be Johnson’s allegations in this case, rather than
Knorr’s version of the September 6, 2000 incident, that may be baseless
and fabricated.

                                    14
every offense for which an officer arrested a plaintiff for the arresting
officer to defeat a claim of false arrest. See Wright, 409 F.3d at 602-
04. The rationale of this rule is that “[t]he existence of probable cause
[for one offense] . . . justifie[s] the arrest-and defeats [the plaintiff’s]
claim of false arrest-even if there was insufficient cause to arrest on
the [second offense] alone.” Edwards v. City of Philadelphia, 860
F.2d 568, 576 (3d Cir. 1988). However, a cause of action for
malicious prosecution may be based on the prosecution of more than
one charge, and the validity of the prosecution for each charge comes
into question inasmuch as the plaintiff was subject to prosecution on
each individual charge which, as we have noted, is likely to have
placed an additional burden on the plaintiff.

        Overall, we are satisfied that notwithstanding the rule when a
plaintiff is pursuing false arrest charges, a defendant initiating
criminal proceedings on multiple charges is not necessarily insulated
in a malicious prosecution case merely because the prosecution of one
of the charges was justified. As the Court of Appeals for the Second
Circuit explained in Posr, courts “need to separately analyze the
charges claimed to have been maliciously prosecuted.” Posr, 944
F.2d at 100. Accordingly, although the district court properly
dismissed Johnson’s claim of false arrest based on the existence of
probable cause to arrest Johnson for terroristic threats, the court erred
in dismissing his claim of malicious prosecution inasmuch as the
court did not consider whether there was probable cause to initiate the
criminal proceedings with respect to the remaining offenses.
Therefore, we will reverse the order for summary judgment13 and will
remand the case to the district court for further proceedings on
Johnson’s malicious prosecution claims except any claim relating to
terroristic threats as there was probable cause for the terroristic threat
charges.14


        13
           Though we are reversing the district court we nevertheless
praise it for its faithful adherence to our precedent in Wright. After all,
the court attempted to follow Wright even though it thought that
applying Wright would lead to an absurd result.
        14
         We note that Johnson’s detention in the cell at the police station
for approximately two days until he could “make bail,” constitutes a
“deprivation of liberty consistent with the concept of seizure as a
consequence of a legal proceeding.” See Estate of Smith, 318 F.3d at
521. Where the malicious prosecution claim sounds in the Fourth
Amendment, the plaintiff “must show some deprivation of liberty

                                    15
B. State Law Claims


consistent with the concept of ‘seizure.’” Gallo, 161 F.3d at 222
(citation omitted). In Gallo, the court found a seizure where the plaintiff
“had to post a $10,000 bond, he had to attend all court hearings
including his trial and arraignment, he was required to contact Pretrial
Services on a weekly basis, and he was prohibited from traveling outside
New Jersey and Pennsylvania.” Id. We found Justice Ginsburg’s
concurrence in Albright v. Oliver, 510 U.S. 266, 276, 114 S.Ct. 807, 814
(1994), “compelling and supported by Supreme Court case law,” Gallo,
161 F.3d at 223, in which she stated that a defendant who is released on
bail “is scarcely at liberty; he remains apprehended, arrested in his
movements, indeed ‘seized’ for trial, so long as he is bound to appear in
court and answer the state’s charges.” 510 U.S. at 279, 114 S.Ct. at 816.
Similarly, in DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d
Cir. 2005), we recognized that “[p]retrial custody and some onerous
types of pretrial, non-custodial restrictions constitute a Fourth
Amendment seizure,” though we nonetheless concluded that the
plaintiffs’ “attendance at trial did not [itself] qualify as a Fourth
Amendment seizure.” See also Torres v. McLaughlin, 163 F.3d 169,
174 (3d Cir.1998) (“[T]he limits of Fourth Amendment protection relate
to the boundary between arrest and pretrial detention.”)

        Here, Johnson was detained in a cell at the police station for
approximately two days prior to being released when he could “make
bail,” and he was ordered to appear approximately six weeks later at a
preliminary hearing. Johnson’s pretrial custody for approximately two
days, the requirement that he make bail, and the fact that he was ordered
to return in approximately six weeks for a hearing constitute a
deprivation of liberty consistent with the concept of “seizure.”

         It is appropriate for us to make some points regarding the
proceedings on the remand. First, on the remand Johnson will have the
burden to “show that the criminal action was begun without probable
cause for charging the crime the first place.” Hartman v. Moore, 126
S.Ct. 1695, 1702 (2006). Moreover, the remand is without prejudice to
Knorr contending in the district court, as he contended in this court, that
Johnson cannot establish a Fourth Amendment malicious prosecution
case because the prosecution for the additional charges for which there
might not have been probable cause in no way resulted in additional
restrictions on his liberty beyond those attributable to the prosecution on
the terroristic threats charges for which there was probable cause.


                                    16
         On his cross-appeal, Knorr challenges the portion of the
district court’s order in which it dismissed Johnson’s state law claims
because it would not exercise supplemental jurisdiction over them, yet
nonetheless addressed the merits of, and rejected Knorr’s state law
defense that he is immune from suit based on the principles of
sovereign immunity. Knorr argues that the “[t]he district court erred
by attempting simultaneously to assert and decline jurisdiction over
Johnson’s state law claims.” Appellee-cross-appellant’s br. at 12.
Inasmuch as we are reversing the district court’s order for summary
judgment with respect to Johnson’s section 1983 claim of malicious
prosecution, we will vacate the district court’s remand of his
supplemental state law claims to the state court, and the district court
on the remand should reinstate those claims.15 See Estate of Smith,
318 F.3d at 522.

         On the remand the district court will be exercising jurisdiction
over Johnson’s state law claims and consequently will be free to make
substantive orders with respect to them. Thus, the district court on the
remand may revisit all aspects of those claims and the defenses to
them which is exactly what it would have done if we held that it erred
in considering Knorr’s sovereign immunity defense even though it
was remanding the state law claims to the state court.16 In the
circumstances, Knorr’s contention that the court erred in considering
Johnson’s state law claims on the merits is moot because Knorr on his
appeal contends only that the court should not have reached the merits
of those claims and, in light of our disposition of this appeal, now it
should do so. Of course, we cannot consider the merits of Knorr’s
sovereign immunity defense because he does not contend that the
district court substantively erred in its decision rejecting the defense
and, accordingly, has not briefed the substantive issue raised by the
defense. Therefore, we will dismiss his appeal.



        15
          28 U.S.C. § 1367(c)(3) provides that a district court may
decline to exercise supplemental jurisdiction over state law claims if the
court has dismissed all of the claims over which it had original
jurisdiction.
        16
          Under Fed. R. Civ. P. 54(b) in a case in which a final judgment
has not been entered, which in light of our disposition of the appeal is
the situation here, any order “is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties.”

                                    17
                         V. CONCLUSION

        For the foregoing reasons on Johnson’s appeal at No. 05-5029
we will reverse the order of October 31, 2005, and will remand this
case to the district court for further proceedings consistent with this
opinion. In particular, Johnson’s malicious prosecution claims will be
reinstated, the order remanding his state law claims to the district
court will be vacated and Johnson will be able to pursue his section
1983 malicious prosecution claims and the supplemental state law
claims in the district court. We, however, do not preclude the district
court from declining to exercise jurisdiction over the supplemental
state law claims should it again dismiss Johnson’s section 1983
claims. Knorr’s appeal at No. 05-5139 is dismissed as moot. The
parties will bear their own costs on this appeal.




                                  18
