                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2004

Bresko v. John
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1307




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"Bresko v. John" (2004). 2004 Decisions. Paper 1062.
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                                                                NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-1307

                                  ROBERT BRESKO,

                                            Appellant

                                            v.

                              ROBERT JOHN, Detective,
                             Shamokin Police Department;
                            ANTHONY J. ROSINI, District
                           Attorney, Northumberland County
                            _________________________

                   On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                  District Judge: The Honorable James F. McClure, Jr.
                                     (00-CV-1472)
                              _________________________

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  on January 9, 2004

                      Before: BARRY and SMITH, Circuit Judges,
                              and POLLAK, District Judge*

                                (Filed: January 29, 2004)

                                ____________________

                              OPINION OF THE COURT
                               _____________________



  *
   The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
SMITH, Circuit Judge.

       Robert Bresko appeals the District Court’s dismissal of his claims brought under

42 U.S.C. § 1983 against Detective Robert John, claiming false arrest in violation of the

Fourth Amendment, and Northumberland County District Attorney Anthony Rosini,

asserting that Rossini violated his due process rights under the Fourth and Fourteenth

Amendments by prosecuting him for a rape charge while having no reasonable belief that

the prosecution would be successful. This is the second time this matter has been before

us on appeal. See Bresko v. John, Nos. 00-4116, 00-4251 (3d Cir. Mar. 12, 2002).

Because the facts of this case were detailed in the previous appeal, we provide only a

brief procedural history.

                                             I.

       Bresko filed his complaint in the District Court on August 16, 2000. At that time,

Bresko’s criminal proceeding was still pending in the state court. The District Court

dismissed his complaint, abstaining from considering his claims against Rosini based on

Younger v. Harris, 401 U.S. 37 (1971), due to the pending nature of the state criminal

prosecution. The District Court also held that Bresko’s claims against Detective John

were barred by Heck v. Humphrey, 512 U.S. 477 (1994), which prohibits the prosecution

of a § 1983 claim which might call into question a plaintiff’s conviction. After the

District Court dismissed the complaint and before this Court decided the first appeal, the

District Attorney agreed to a nolle prosequi of the original charges against Bresko in



                                             2
exchange for his pleading nolo contendere to one charge of simple assault and one charge

of simple assault by physical menace. Because Younger abstention was no longer

appropriate, and because Bresko could properly raise the argument that his criminal

prosecution was no longer called into question as barred by Heck, this Court vacated the

District Court’s dismissal in light of the conclusion of the state criminal prosecution, and

we remanded for further proceedings.

       On remand, the District Court determined that Bresko’s claims against Detective

John did not allege a Fourth Amendment violation and, therefore, that John was entitled

to qualified immunity. It further held that District Attorney Rosini was entitled to

absolute immunity from Bresko’s claims because all alleged activities “were intimately

associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S.

409, 430 (1976). The District Court dismissed Bresko’s amended complaint in its order

of January 6, 2003. Bresko filed a timely notice of appeal on January 30, 2003.1

                                             II.

       In order to recover under § 1983, Bresko must show that Detective John “engaged

in conduct that deprived him of ‘rights, privileges, or immunities’ secured by the

Constitution or laws of the United States.” Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.

2000). Bresko claims that his arrest by Detective John was “pretextual, false without




  1
    The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3),
(a)(4). We have jurisdiction over Bresko’s appeal pursuant to 28 U.S.C. § 1291.

                                              3
probable cause and based upon material omissions to the issuing magistrate” and thus in

violation of his Fourth Amendment rights. An arrest is violative of the Fourth

Amendment where it is not supported by probable cause. Orsatti v. New Jersey State

Police, 71 F.3d 781, 790 (3d Cir. 2000). Probable cause exists where the “facts and

circumstances [are] sufficient to warrant a prudent man in believing that the [suspect] had

committed or was committing an offense.” Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir.

1997) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). Additionally, where an arrest

is made pursuant to a warrant, as it was here, the plaintiff must show that “a reasonably

well-trained officer in petitioner’s position would have known that his affidavit failed to

establish probable cause and that he should not have applied for the warrant.” Malley v.

Briggs, 475 U.S. 335, 456 (1986). Stated another way, Bresko may show that a false

arrest took place by proving that John obtained the warrant by (1) “knowingly and

deliberately, or with a reckless disregard for the truth, ma[king] false statements or

omissions that create[d] a falsehood” when he applied for a warrant and (2) that “such

statements or omissions are material, or necessary, to the finding of probable cause.”

Wilson, 212 F.3d at 787. Bresko cannot meet this standard.

       The District Court appropriately determined that, taking all the allegations of the

complaint as true, Bresko failed to establish a constitutional violation by Detective John.

Detective John received information from Desiree Burns that Bresko had allegedly raped

her. She provided a detailed statement of the alleged rape. This was sufficient to



                                              4
establish probable cause to obtain a warrant. Bresko does not allege that John withheld

information known to him at the time or made false statements to the issuing Judge.

Bresko claims, however, that John should have done more investigation before applying

for the arrest warrant. The issue “for Fourth Amendment purposes, . . . is not whether the

information on which police officers base their request for an arrest warrant resulted from

a professionally executed investigation.” Orsatti, 71 F.3d at 484.    Instead, it is simply

whether probable cause existed. We conclude that it did. As explained in Saucier v.

Katz, 533 U.S. 194, 201 (2001), “[i]f no constitutional right would have been violated

were the allegations established, there is no necessity for further inquiries concerning

qualified immunity.” Because Bresko fails to establish a Constitutional violation, the

District Court properly dismissed his claim.

                                             III.

       Bresko also claims that District Attorney Rosini violated his Fourth and Fourteenth

Amendment rights by initiating the rape prosecution and continuing to pursue it in the

face of a lack of evidence. Bresko also alleges that Rosini failed to abide by an earlier

cooperation agreement despite the fact that Rosini had no reasonable expectation that

Bresko would be convicted. The District Court appropriately determined that Rosini is

entitled to absolute immunity from Bresko’s suit.

       It is well established that prosecutors enjoy absolute immunity from suits under §

1983 for conduct related to the initiation and presentation of the state’s case. Imbler, 424



                                               5
U.S. at 431. The decision whether to enter into a plea agreement or to pursue a trial is

strictly within the discretion of the prosecutor. Buckley v. Fitzsimmons, 509 U.S. 259,

273 (1993); Santobello v. New York, 404 U.S. 257 (1971) (plea bargaining is an essential

component of our legal system); Brooks v. George County, 84 F.3d 157, 168 (5th Cir.

1997) (decision to enter a motion of nolle prosequi entitled to absolute immunity). Rosini

is therefore entitled to absolute immunity for his decisions regarding plea bargains.2

       We will therefore affirm the District Court’s dismissal of Bresko’s amended

complaint against Detective John and District Attorney Rosini.




TO THE CLERK:

       Please file the foregoing Opinion.




                                            By the Court,

                                             /s/ D. Brooks Smith
                                            Circuit Judge




  2
   Because a written plea agreement was submitted to and approved by the
Northumberland County Court of Common Pleas, Bresko’s request for injunctive relief is
moot.

                                              6
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