GLD-171                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 11-4624
                                  ___________

                           DONNELLY J. LEBLANC,
                                         Appellant

                                        v.

                             CRAIG STEDMAN;
                            BRIAN E. CHUDZIK;
                             THOMAS B. ZELL;
                              DEAN MORGAN;
                             GEORGE PAPPAS;
                         JOHN DOE, Chief of Police;
                         COUNTY OF LANCASTER
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                            (D.C. Civil No. 10-05215)
                  District Judge: Honorable Timothy J. Savage
                  ____________________________________

      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 April 26, 2012

     Before: FUENTES, GREENAWAY, JR. and NYGAARD, Circuit Judges

                          (Opinion filed: May 2, 2012 )
                                  _________

                                   OPINION
                                   _________
PER CURIAM

       Donnelly J. LeBlanc appeals, pro se, from a District Court judgment in favor of

defendants in his civil rights action. For the reasons that follow, we will summarily

affirm the District Court’s judgment.

I.     Background

       The record reflects that on October 7, 2007, during a dispute with his wife,

LeBlanc drove his pick-up truck into his wife’s Mercury Sable, pushing the Sable into

their porch. LeBlanc said he purposefully damaged the Sable because he wanted his wife

to get a new car and he did not want to invest the time and money to fix it. After the

incident, LeBlanc and his wife drove to a nearby friend’s house.

       Detective Pappas responded to a report of a domestic disturbance and encountered

LeBlanc and his wife at their friend’s house. Pappas interviewed the LeBlancs and

arrested LeBlanc for simple assault and recklessly endangering another person. Pappas

photographed the damage to the automobile, had it towed to a garage, and stopped by

LeBlanc’s house to survey the damage to the porch.

       Pappas warned State Farm, the insurer of the LeBlancs’ cars and home, that

LeBlanc might attempt to file a false insurance claim. On October 10, 2007, LeBlanc

contacted his insurance agent, requesting reimbursement for the $95 towing bill he paid

as a result of the October 7, 2007 incident. In making this request, LeBlanc




                                             2
misrepresented the events leading to the towing of the Sable. 1 LeBlanc’s insurance agent

believed that he was submitting a claim for the towing expense and assigned a claim

number to the request. 2 While State Farm was reviewing LeBlanc’s reimbursement

request, LeBlanc’s wife contacted the insurance agent’s office and gave a slightly

different version of the events that led to the towing of the Sable.

       In December 2007, State Farm investigators contacted Pappas, and they later

faxed him their report regarding LeBlanc’s reimbursement request, including LeBlanc’s

and his wife’s description of the incident that led to the towing of the Sable. The report

also indicated that LeBlanc was seeking a quick settlement. After reviewing State Farm’s

report, Pappas described the events to Assistant District Attorney Dean Morgan. Pappas

then prepared an affidavit of probable cause and criminal complaint against LeBlanc,

charging him with criminal conspiracy and insurance fraud. The complaint was signed

by Chief Thomas Zell of the Akron Borough Police Department. District Justice

Willwerth issued a warrant for LeBlanc’s arrest on January 8, 2008, and LeBlanc was

arrested. However, in February 2010, the charges were nolle prossed, and the case was




       1
         According to the State Farm insurance agent’s office, LeBlanc said he had hit a
tree on Route 322 after a tire blew out. LeBlanc claimed that this was not the story he
told State Farm, but he admitted that he made up a story about why the Sable needed to
be towed.
       2
         LeBlanc asserts that reimbursement for towing was not a part of his insurance
policy, but was a courtesy service offered by his agent.

                                              3
dismissed. 3

       In October 2010, LeBlanc initiated a civil rights action under 42 U.S.C. § 1983

against Assistant District Attorney Craig Stedman, Chudzik, Zell, Morgan, Pappas, John

Doe (Chief of Police), and the County of Lancaster. He presented claims of false arrest,

false imprisonment, conspiracy, and malicious prosecution. Defendants filed motions to

dismiss. The District Court dismissed the claims against Stedman, Chudzik, Morgan,

Doe, and Lancaster County, as well as the conspiracy claim. The District Court

converted Zell’s motion into a motion for summary judgment and granted the motion. 4

After discovery, Pappas filed a motion for summary judgment, which the District Court

granted. LeBlanc timely appeals and requests a temporary preliminary injunction and

restraining order.

       II.     Jurisdiction and Standard of Review

       We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review district court

decisions regarding both summary judgment and dismissal for failure to state a claim

under the same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d

822, 826 (3d Cir. 2011). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted).


       3
         The Assistant District Attorney assigned to prosecute the criminal action was
Brian E. Chudzik.
       4
         After LeBlanc filed the complaint, he filed multiple motions for appointment of
counsel and to compel discovery. The District Court denied all the requests.
                                             4
Summary judgment is granted when, viewing the evidence in the light most favorable to

the nonmoving party, 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); Beers-Capitol v. Whetzel,

256 F.3d 120, 130 n.6 (3d Cir. 2001). We review the District Court’s orders regarding

discovery matters and appointment of counsel for abuse of discretion. See Anderson v.

Wachovia Mortg. Corp., 621 F.3d 261, 281 (3d Cir. 2010); Tabron v. Grace, 6 F.3d 147,

155 n.4 (3d Cir. 1993). We may affirm on any basis supported by the record. United

States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005).

III.   Discussion

       A.     Motions to Dismiss

              1.     Stedman, Chudzik, Morgan

       LeBlanc’s claims against Assistant District Attorneys Stedman, Chudzik, and

Morgan revolve around the charging documents. LeBlanc alleged that Morgan failed to

verify the information that he received from Pappas before agreeing that charges should

be brought, and that Chudzik and Stedman failed to come forward with evidence that he

did not file an insurance claim. Prosecutors, however, are immune from suit under §

1983 when “act[ing] within the scope of [their] duties in initiating and pursuing a

criminal prosecution.” Imbler v. Pachtman, 424 U.S. 409, 410 (1976). This protection

encompasses prosecutors’ activities in connection with preparing and filing charging

documents, such as the information and arrest warrant. Kalina v. Fletcher, 522 U.S. 118,

129 (1997). Consequently, Stedman, Chudzik, and Morgan were immune from suit, and
                                             5
the District Court properly dismissed the claims against them.

              2.       Lancaster County

       To state a § 1983 claim against Lancaster County, LeBlanc must identify a county

policy or custom that caused the his injury. Monell v. N.Y. City Dep’t of Soc. Servs.,

436 U.S. 658, 689 (1978). A policy or custom must be established by “showing that a

governmental policymaker is responsible by action or acquiescence for the policy or

custom.” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 250 (2007). LeBlanc

baldly stated that Lancaster County had a policy of accepting criminal charges and

prosecuting without verifying the truth to the charges. This was insufficient to state a

claim against Lancaster County. See Iqbal, 556 U.S. at 678.

              3.       John Doe, Chief of Police

       LeBlanc’s claim against the Chief of Police also fails, as he did not allege facts to

demonstrate the Chief of Police’s personal involvement with his arrest, imprisonment, or

prosecution. As the District Court recognized, a civil rights claim “cannot be predicated

solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988).

              4.       Conspiracy Claim

       To demonstrate the existence of a conspiracy under § 1983, “a plaintiff must show

that two or more conspirators reached an agreement to deprive him or her of a

constitutional right under color of law.” Parkway Garage, Inc. v. City of Phila., 5 F.3d

685, 700 (3d Cir.1993), abrogated on other grounds by United Artists Theatre Circuit,
                                             6
Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir.2003). LeBlanc did not allege facts

suggesting an illicit agreement. He simply stated that defendants “acted in concert to

falsely arrest and imprison [him].” Therefore, his allegations failed. See Iqbal, 556 U.S.

at 678.

          B.     Summary Judgment

                 1.     Zell

          LeBlanc's claims against Zell for false arrest or false imprisonment are barred by

the two-year statute of limitations. See 42 Pa. Cons. Stat. § 5524(1); Garvin v. City of

Phila., 354 F.3d 215, 220 (3d Cir. 2003). The statute of limitations for a claim of false

arrest or false imprisonment begins to run “at the time the claimant becomes detained

pursuant to legal process.” See Wallace v. Kato, 549 U.S. 384, 397 (2007). The statute

of limitations thus commenced when LeBlanc waived arraignment in March 2008. See

id. at 391. LeBlanc’s § 1983 action was filed in October 2010, beyond the expiration of

the limitations period. 5 Zell was therefore entitled to judgment as a matter of law. 6


          5
         We do not decide LeBlanc’s claims of false arrest and false imprisonment
against Pappas on the basis of the statute of limitations. He filed a § 1983 action against
Pappas raising these claims in 2009, see E.D. Pa. No. 09-1685, and reinstated them after
the insurance fraud and conspiracy charges were nolle prossed. See Wallace, 549 U.S. at
393-94.
          6
        The District Court did not address the malicious prosecution claim against Zell,
which is not barred by the statute of limitations. See Heck v. Humphrey, 512 U.S. 477,
484 (1994). This failure is harmless error, as there is no set of facts on which LeBlanc
may recover on his malicious prosecution claim against Zell. See Hancock Indus. v.
Schaeffer, 811 F.2d 225, 229 (3d Cir. 1987), infra § III.B.2.

                                               7
              2.     Pappas

       The District Court properly granted summary judgment in favor of Pappas.

To prove false arrest or false imprisonment, a plaintiff must demonstrate that the police

lacked proper cause to arrest him. Groman v. Twp. of Manalapan, 47 F.3d 628, 634-36

(3d Cir. 1995). Generally, the existence of probable cause is a question of fact. Groman,

47 F.3d at 635. However, a district court may conclude “that probable cause exists as a

matter of law if the evidence, viewed most favorably to [the p]laintiff, reasonably would

not support a contrary factual finding.” Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782,

788-89 (3d Cir. 2000).

       “[P]robable cause to arrest exists when the facts and circumstances within the

arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person

to believe that the offense has been or is being committed by the person to be arrested.”

Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). Where an arrest is made

pursuant to a warrant, establishing a lack of probable cause requires a plaintiff to show

“by a preponderance of the evidence: (1) that the police officer knowingly and

deliberately, or with a reckless disregard for the truth, made false statements or omissions

that create a falsehood in applying for a warrant;” and (2) that “such statements or

omissions are material, or necessary, to the finding of probable cause.” Wilson v. Russo,

212 F.3d 781, 786-87 (3d Cir. 2000).

       LeBlanc argues that probable cause did not exist because Pappas never proved that

LeBlanc submitted an insurance claim for the Mercury Sable. While it is disputed
                                             8
whether LeBlanc’s towing reimbursement request was an insurance claim or simply a

courtesy request, see supra n.2, this discrepancy is immaterial. “[W]e are concerned here

only with the question of probable cause, not [LeBlanc’s] guilt or innocence.” Wright v.

City of Phila., 409 F.3d 595, 603 (3d Cir. 2005). State Farm insurance agents believed

that LeBlanc had submitted an insurance claim, and this belief was relayed to Pappas.

Pappas noted this belief in the affidavit of probable cause, along with State Farm’s record

that on October 10, 2007, LeBlanc had represented to State Farm that he had struck a tree

along Route 322 while operating the Sable, and that on November 2, 2007, LeBlanc’s

wife contacted State Farm, inquiring about the status of claim and reporting that LeBlanc

had struck a tree on a different road. Pappas contrasted these representations with his

October 2007 domestic disturbance investigation, which revealed that the Sable was

damaged and required towing after LeBlanc drove his truck into it. The affidavit also

noted that the insurance investigator commented that LeBlanc was pushing for a quick

settlement. These statements in the probable cause affidavit were all supported by police

reports and State Farm’s auto claim service and investigation report. Moreover, LeBlanc

failed to show that Pappas had reason to doubt any of the evidence. Cf. Baker v.

McCollan, 443 U.S. 137, 145-46 (1979) (sheriff executing an arrest warrant not required

to investigate independent every claim of innocence). We therefore agree that the police

had probable cause to arrest LeBlanc, as the information within Pappas’ knowledge

would warrant a reasonable person to believe that LeBlanc had committed insurance


                                             9
fraud or conspiracy. 7 Similarly, because probable cause existed as to the charges,

LeBlanc’s malicious prosecution claim must fail. 8 See McKenna v. City of Phila., 582

F.3d 447, 461 (3d Cir. 2009) (to prevail on malicious prosecution claim, plaintiff must

show the criminal proceeding was initiated without probable cause). Simply put,

summary judgment was proper because the evidence, viewed most favorably to LeBlanc,

simply would not support a finding that probable cause did not exist. See Merkle, 211

F.3d at 788-89.




       7
        A person commits insurance fraud if he “[k]nowingly and with the intent to
defraud any insurer. . . presents or causes to be presented to any insurer . . . any
statement forming a part of, or in support of, a claim that contains any false, incomplete
or misleading information concerning any fact or thing material to the claim.” 18 Pa.
Cons. Stat. § 4117(a)(2).

       “A person is guilty of conspiracy with another person . . . to commit a crime if
with the intent of promoting or facilitating its commission he: (1) agrees with such other
person . . . that they or one or more of them will engage in conduct which constitutes
such crime . . . ; or (2) agrees to aid such other person . . . in the planning or commission
of such crime.” 18 Pa. Cons. Stat. § 903(a).
       8
        LeBlanc also argues that it was “fatal error” that Pappas did not produce all the
documentation he received from State Farm insurance in his motion for summary
judgment, as one of Pappas’ reports indicates he received 23 pages of claim information
from State Farm. But the applicable rule places no requirement on a summary-judgment
movant to produce all evidence it obtained during discovery. See Fed. R. Civ. P. 56(c).
LeBlanc additionally contends that the evidence of State Farm’s claim service and
investigation report is forged because “no prudent person would believe . . . [that] a 1993
Mercury Sable would be financed by Capitol One Auto . . . [or] covered by collision
[insurance], especially not by a lower income family.” LeBlanc, however, failed to
support this bald assertion with any evidence, meaning it could not defeat summary
judgment. See Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011).
                                            10
       B.     Motions to Compel Discovery and Motions for Appointment of Counsel

       LeBlanc argues that the District Court abused its discretion in denying his multiple

motions to compel discovery and appoint counsel. He contends that the denials

prevented him from submitting evidence that the towing reimbursement he requested

from State Farm was not part of his insurance policy. As discussed above, whether

LeBlanc’s towing reimbursement request was an insurance claim or simply a courtesy

request was immaterial. LeBlanc’s claims of false arrest, false imprisonment, and

malicious prosecution turned on the question of probable cause, not LeBlanc’s guilt or

innocence. See Wright, 409 F.3d at 603. Accordingly, the District Court did not abuse

its discretion by denying his motions to compel discovery. See In re Fine Paper Antitrust

Litig., 685 F.2d 810, 818 (3d Cir. 1982). Similarly, the District Court did not abuse its

discretion in denying LeBlanc’s motions for appointment for counsel. See Tabron, 6

F.3d at 156-58.

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

LeBlanc’s motion for a temporary preliminary injunction and restraining order is denied.

See NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999).




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