                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2003

McCabe v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4498




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Recommended Citation
"McCabe v. Philadelphia" (2003). 2003 Decisions. Paper 239.
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                                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                                No. 02-4498


                           WILLIAM MCCABE,

                                 Appellant

                                     v.

  CITY OF PHILADELPHIA; SUSAN KACHNYCZ, Philadelphia Detective; JOHN
DOE, CAPTAIN; JOHN DOE, LIEUTENANT; SERGEANT JOHN DOE; JOHNS DOE
#S1-5, PHILADELPHIA DETECTIVE; JOHN DOE #S1-5, PHILADELPHIA POLICE
                      OFFICERS; ROBIN DEVLIN


      ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
             THE EASTERN DISTRICT OF PENNSYLVANIA

                         (Dist. Court No. 01-cv-03975)
               District Court Judge: Hon. Ronald L. Buckwalter


                 Submitted Under Third Circuit LAR 34.1(a)
                            September 11, 2003

            Before: ALITO, BARRY, and AMBRO, Circuit Judges.

                    (Opinion Filed: September 30, 2003)




                        OPINION OF THE COURT
ALITO, Circuit Judge:

       William McCabe brought this action under 42 U.S.C. § 1983 following the

Philadelphia police’s intervention in McCabe’s dispute with his estranged wife, Robin

Devlin. McCabe separated from Devlin in May of 1999, and on July 5 Devlin obtained

an emergency Protection From Abuse (“PFA”) order against McCabe from the

Philadelphia Court of Common Pleas. This order prohibited McCabe from harassing

Devlin or visiting her home. During the seven-day period in which the PFA was in effect,

Devlin reported to the police that M cCabe had violated the order by repeatedly

telephoning her and following her home. Philadelphia Police Detective Susan Kachnycz

confirmed that a PFA was in effect and swore out an affidavit of probable cause for an

arrest warrant. The PFA expired on July 12, the arrest warrant was issued on July 29, and

police arrested McCabe on August 3. After the arrest, Devlin complained to the police

that McCabe continued to telephone her from jail, and additional charges were filed

against him for witness intimidation. Devlin never appeared to press charges against

McCabe, however, and all charges were dismissed. Police arrested McCabe again in

2000 for attempting to kidnap Devlin’s daughter.

       McCabe sued the city, Kachnycz, and Devlin. His section 1983 claim alleged false

arrest and malicious prosecution stemming from a conspiracy among Kachnycz and other

officers. McCabe also argued for municipal liability on the ground that the city had

maintained a policy of failing to train officers regarding probable cause. The District



                                            -2-
Court granted summary judgment to Kachnycz and the city, holding that Kachnycz had

probable cause to arrest McCabe and that section 1983 cannot support municipal liability

when probable cause exists. Citing 42 PA. C ONS. S T. § 8541 et seq., the Court also found

Kachnycz immune from suit for McCabe’s state-law claims for false imprisonment,

malicious prosecution, and intentional infliction of emotional distress. The Court

declined to exercise supplemental jurisdiction over the claims against Devlin. McCabe

appeals the grant of summary judgment to the city, arguing that no probable cause existed

for the August 3 arrest or for the additional charges arising out of his contact with Devlin

while in custody. He does not contest the remainder of the District Court’s decision. We

exercise plenary review over a grant of summary judgment. See Merkle v. Upper Dublin

School Dist., 211 F.3d 782, 788 (3d Cir. 2000).

       In order to establish section 1983 municipal liability, a plaintiff must first establish

that the “plaintiff’s harm was caused by a constitutional violation.” Collins v. City of

Harker Heights, 503 U.S. 115, 120 (1992). In this case, we agree with the District Court

that McCabe did not suffer a constitutional violation because the police had probable

cause to arrest him. See Baker v. McCollan, 443 U.S. 137, 142–44 (1979); Estate of

Smith v. Marasco, 318 F.3d 497, 521–22 (3d Cir. 2003); Dowling v. City of Philadelphia,

855 F.2d 136, 141 (3d Cir. 1988). “[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 an offense has been or is being committed by



                                              -3-
the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir.

1995). McCabe denies violating the PFA and consequently disputes that the violation

was a “fact[] . . . within [Kachnycz’s] knowledge,” id., and he also argues that Kashnycz

and the police were required to verify independently that “the facts contained in

[Devlin’s] PFA petition [we]re true.” Both arguments lack merit.

       The record plainly discloses that McCabe admitted visiting Devlin’s home during

the week the PFA was in effect. See app. at 68 (“It was a Wednesday between . . . the 5th

and 12th . . . . I went over to her house. . . .”). Furthermore, because police arrested

McCabe pursuant to a facially valid warrant, we may only find probable cause lacking if

       (1) . . . the police . . . “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) . . . “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) (quoting Sherwood v. Mulvihill,

113 F.3d 396, 399 (3d Cir. 1997)). The statements in Kachnycz’s affidavit of probable

cause which were “material, or necessary, to the finding of probable cause,” id., were (1)

that a PFA, which prohibited McCabe from visiting Devlin’s home, was in effect during

the week of July 5, 1999, and (2) that three witnesses reported seeing McCabe on

Devlin’s premises during that week. See app. at 716–17. We discern no recklessness on

Kachnycz’s part towards the veracity of either statement. Whether Devlin obtained the

PFA on false pretenses is immaterial. The gratuitous accusations throughout McCabe’s

briefs about Devlin’s personal life are likewise immaterial to this action. Because police

                                             -4-
had probable cause to arrest McCabe, his constitutional rights were not violated and an

action under section 1983 cannot be maintained. We therefore affirm the District Court

in full.




                                                 /s/ Samuel A. Alito, Jr.
                                                Circuit Judge
