                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 13-2448
                                    ____________

                                 ROBERT WEAVER,

                                                          Appellant

                                          v.

            LAURA BEVERIDGE; BETTY WEAVER; JAMES REEDER



                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                              (D. C. No. 1-09-cv-02357)
                   District Judge: Honorable Lawrence F. Stengel


                       Submitted under Third Circuit LAR 34.1(a)
                                   on March 7, 2014

                Before: AMBRO, JORDAN and ROTH, Circuit Judges

                            (Opinion filed August 27, 2014)

                                    OPINION


ROTH, Circuit Judge:

      Robert Weaver appeals the District Court’s April 18, 2013, order granting

summary judgment in favor of defendant Laura Beveridge. We will affirm.
I.      Background

        On June 25, 2002, Loretta Nispel reported to the York City Police Department that

she had been sexually assaulted by her stepbrother, plaintiff Robert Weaver, and her

father, Robert Weaver, Sr. Detective Laura Beveridge was assigned to investigate the

case.

        Nispel, who has developmental disabilities and has some difficulty

communicating, alleged that the incident occurred in December 2001. Beveridge first

interviewed Nispel on July 16, 2002. Nispel told Beveridge that she was with plaintiff,

Weaver, Sr., and Weaver, Sr.’s, wife, Betty Weaver, at plaintiff’s home. Betty Weaver

then left the residence for several hours. Nispel alleged that the assault occurred while

Betty Weaver was absent.

        Beveridge’s investigation included additional interviews with Nispel and other

witnesses, including Betty Weaver; Steve Cochran, Nispel’s then-boyfriend; and Eleanor

Coxen, Nispel’s mother. During one interview, Beveridge drew some pictures to help

Nispel identify where and how plaintiff and Weaver, Sr., touched and assaulted her.

Nispel also underwent a medical examination, but the examination, which occurred many

months after the alleged incident, was inconclusive.

        Assistant District Attorney (ADA) James Reeder was assigned to prosecute the

case. Plaintiff was tried in July 2003 and convicted of multiple charges.

        Weaver filed three petitions under the Pennsylvania Post-Conviction Relief Act,

42 Pa. Cons. Stat. Ann. §§ 9541 et seq. His third petition under the PCRA was denied by

the trial court, but granted on appeal by the Pennsylvania Superior Court on Weaver’s

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claim of ineffective assistance of counsel for his trial counsel’s failure to call Betty

Weaver and Lakeisha Weaver, plaintiff’s daughter, as witnesses. The Commonwealth’s

appeal was denied by the Pennsylvania Supreme Court and the case was remanded for a

new trial in February 2009.

       On remand, the case was assigned to ADA Christopher Moore. Moore spoke with

Nispel and her mental-health case worker and was informed that Nispel’s life was

improving. Weaver had served nearly six years in prison. Moore decided to file a nolle

prosequi of the criminal charges for two reasons: he wanted to avoid putting Nispel

through another trial and he thought Weaver was not likely to receive additional jail time

if convicted. Weaver was released from York County Prison in February 2009.

       On December 1, 2009, plaintiff brought various claims in the U.S. District Court

for the Middle District of Pennsylvania against Beveridge, Reeder, and Betty Weaver.

The only remaining claim1 is against Beveridge for malicious prosecution under the

Fourth Amendment brought under 42 U.S.C. § 1983. The District Court granted

summary judgment for Beveridge because of Weaver’s failure to meet the favorable

termination requirement of a malicious prosecution claim. Weaver v. Beveridge, No. 09-

2357, 2013 WL 1686630 (M.D. Pa. Apr. 18, 2013). Weaver appealed.2


1
  The claims against Reeder were dismissed pursuant to a motion to dismiss and were not
appealed. The claims against Betty Weaver, who has died, were voluntarily dismissed.
2
  Weaver asserts in his notice of appeal that he is appealing from various orders entered
in the District Court. However, the “argument” section of Weaver’s opening brief
challenges only the District Court’s grant of summary judgment in favor of Beveridge.
To the extent that Weaver purports to appeal from the other rulings, he runs afoul of
Federal Rule of Appellate Procedure 28(a)(8)(A), which requires that the “argument”
section of an appellant’s brief contain “appellant’s contentions and the reasons for them,
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II.    Discussion3

       Summary judgment is appropriate when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Inferences drawn from the underlying facts must be viewed in the light most favorable to

the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). “We exercise de novo review of the district court’s grant of summary

judgment.” Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d Cir. 2003).

       A malicious prosecution action under section 1983, for violation of the Fourth

Amendment, requires that (1) the defendant initiated a criminal proceeding, (2) the

proceeding ended in plaintiff’s 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 the legal proceeding. Johnson v. Knorr, 477

F.3d 77, 82–83 (3d Cir. 2007). Failure to meet any element is fatal to the claim. Kossler

v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc).

       Assuming, arguendo, that Weaver can show a genuine issue of material fact on the

other elements, the District Court held that his claim still failed because he did not


with citations to the authorities and parts of the record on which the appellant relies.”
Fed. R.A.P. 28(a)(8)(A); see also L.A.R. 28.3(a). Therefore, Weaver has waived any
claim of error with respect to those other rulings. Weaver has similarly waived his
proposed “Questions Presented” – i.e., whether Weaver was denied procedural due
process, access to the courts, or his right to confrontation – by failing to raise arguments
related to those issues as well.
3
  The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.
                                               4
present any evidence that would meet the favorable termination requirement. To meet

that requirement, “a prior criminal case must have been disposed of in a way that

indicates the innocence of the accused.” Id. at 187. The plaintiff’s innocence may be

shown if his criminal proceeding was terminated by a discharge by a magistrate at a

preliminary hearing, the refusal of a grand jury to indict, the formal abandonment of the

proceedings by the public prosecutor, the quashing of an indictment or information, an

acquittal, or a final order in favor of the accused by a trial or appellate court. Id. A grant

of nolle prosequi can be sufficient to satisfy the favorable termination requirement, but

“not all cases where the prosecutor abandons criminal charges are considered to have

terminated favorably.” Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002) (internal

quotation marks omitted). Thus, a nolle prosequi indicates termination of the charges in

favor of the accused “only when their final disposition is such as to indicate the

innocence of the accused.” Id. (internal quotation marks omitted).

       The record shows that ADA Moore chose not to retry Weaver because he felt it

was unlikely that Weaver would serve additional time and Moore did not want to make

Nispel go through another trial. There is no evidence suggesting that the decision not to

retry Weaver was taken because Weaver was believed to be innocent. This case is

similar to Donahue, where the decision not to retry was based on the unlikelihood of

additional jail time and preservation of prosecutorial resources without any indication

that Donahue was thought to be innocent. See id. at 384. Weaver may not rely on his

conclusory allegation, unsupported by any record evidence, that the grant of nolle



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prosequi was because of his innocence. See Fireman’s Ins. Co. of Newark v. DuFresne,

676 F.2d 965, 969 (3d Cir. 1982).

      For the foregoing reasons, the District Court did not err in granting summary

judgment for defendant Beveridge. We will affirm the District Court’s order.




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