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


2-13-2004

Backof v. NJ State Police
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4131




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                                                         NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 02-4131


                          DAVID E. BACKOF,

                                                  Appellant
                                    v.

       THE NEW JERSEY STATE POLICE; THE OCEAN COUNTY
                         PROSECUTOR'S OFFICE;
THE BUREAU OF ALCOHOL TOBACCO & FIREARMS; JOHN M. SOULIAS,
     Detective; JAMES F. CORBLEY, Detective; ROBERT W. SCOTT,
      Assistant Prosecutor; MARC E. ROESSLER, Assistant Prosecutor;
   E. DAVID MILLARD, Ocean County Prosecutor; JOHN DOES, (1-100)


               Appeal from the United States District Court
                      for the District of New Jersey
                  (D.C. Civil Action No. 01-cv-02731)
              District Judge: Honorable Garrett E. Brown, Jr.


                       Argued December 11, 2003


          Before: AMBRO, FUENTES and GARTH, Circuit Judges

                        (Filed February 13, 2004)

                                  William Strazza, Esq. (Argued)
                                  Law Office of William Strazza
                                  2004 Morris Avenue
                                  P.O. Box 3806
                                  Union, NJ 07083

                                         Attorney for Appellant
                                          Peter C. Harvey
                                           Acting Attorney General of New Jersey
                                          Michael Haas
                                           Assistant Attorney General of Counsel
                                          Melanie L. Armstrong (Argued)
                                           Deputy Attorney General
                                          Office of Attorney General of New Jersey
                                          Department of Law & Public Safety
                                          Richard J. Hughes Justice Complex
                                          Trenton, NJ 08625

                                                 Attorneys for Appellees




                                         OPINION


AM BRO, Circuit Judge

       David E. Backof appeals the District Court’s dismissal of his § 1983 action. He

alleges that Detectives John Soulias and James Corbley, members of the New Jersey

State Police (“State Police”), violated his civil rights by maliciously prosecuting him for

his purportedly unlawful acquisition of handguns. The parties agree that the applicable

statute of limitations is two years but disagree as to when the cause of action accrued.

We deal not only with whether Backof’s claim is timely, but also with whether he has

alleged all the requisites for a § 1983 claim based on malicious prosecution. Though we

conclude Backof’s complaint fails to allege necessary elements of a § 1983 malicious

prosecution cause of action, what is necessary remains indistinct. In the context of


                                             2
commenting on (without deciding) those requirements, we vacate the judgment and

remand with instructions to allow amendment to the pleadings within a reasonable

period.

                          I. Factual and Procedural History

       Backof, a gun collector, holds a State of New Jersey Firearms Purchaser

Identification Card. Seventy-six handguns were legally registered to him as of early

1999. In February 1999, Backof arranged to trade firearms with Mark Fischer, whom he

understood to be a licensed California gun dealer. Backof employed Donald

Daughenbaugh, a licensed firearms dealer, to conduct the transaction. Backof sent

Fischer several items, including a handgun and clips, a copy of Daughenbaugh’s New

Jersey Retail Firearms Dealer License and Federal Firearms License, and a letter

describing the trade and instructing Fischer to send the designated weapons as well as

two copies of his Federal Firearms License, one of which would go to the “dealer doing

the transfer.”

       Shortly after receiving Backof’s shipment, Fischer was arrested by agents of the

Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). His home was searched

pursuant to a search warrant, and the items sent by Backof were seized, along with the

weapons intended for shipment to Backof.

       ATF agents sought to obtain a search warrant for Backof’s home. Their requests

were denied by both the United States Attorney’s Office in New Jersey and the Stafford


                                            3
Police Department on the basis of Backof’s reputation as a gun collector who complies

strictly with federal and state firearm regulations. The agents subsequently attempted to

procure a warrant from the Ocean County, New Jersey, Prosecutor’s Office (“County

Prosecutor’s Office”). Upon inquiry with the Stafford Police Department, the County

Prosecutor’s Office was informed of Backof’s reputation for compliance with the law.

The County Prosecutor’s Office, in turn, went to the State Police.

       Defendant Corbley of the State Police led the investigation. In that capacity, he

swore out an affidavit in support of a search warrant for Backof’s home. Backof alleges

that the facts cited in the affidavit provided insufficient evidence of criminal behavior.

Moreover, Corbley had personal knowledge only of the fact that Backof did not have a

New Jersey Retail Firearms Dealer License. A magistrate judge nonetheless issued a

search warrant based on Corbley’s affidavit. On March 12, 1999, ATF, the County

Prosecutor’s Office, and State Police personnel (including the defendants) executed the

warrant and seized various items from Backof’s home.

       The same day, Backof was charged with violations of N.J.S.A. §§ 2C:58-3 and

2C:39-10(a) for unlawfully acquiring handguns. Defendant Soulias signed the

complaint. Thereafter, the defendants purportedly communicated with Backof directly

on two occasions despite knowing that he was represented by counsel who had instructed

them not to do so. In the ensuing month, the State Police investigated the charges. An

interview with Daughenbaugh supported Backof’s description of the intended deal.


                                              4
       On April 14, 1999, Backof’s attorney entered his notice of appearance, requested

discovery (which he never received), and filed a motion to suppress. Backof was offered

and refused a plea of probation. On May 20, 1999, he sought dismissal of the charge.

The County Prosecutor’s Office administratively dismissed the charge against him on

June 8, 1999.

       Following the administrative dismissal, Backof requested the return of his

property. The Assistant Prosecutor did not respond to these requests. Backof’s

subsequent efforts to obtain relief were unsuccessful.

       The current complaint was filed on June 8, 2001. One year later, the District

Court entered Backof’s voluntary dismissal of his complaint against the County

Prosecutor’s Office defendants. Defendants Corbley, Soulias, and the State Police then

filed a Rule 56(c) motion to dismiss. Backof subsequently conceded that the State

Police, as well as Corbley and Soulias in their official capacities, were not persons within

the meaning of § 1983. The complaint was thus dismissed as to those parties. The only

remaining defendants are Soulias and Corbley in their individual capacities. In October

2002 the District Court dismissed the complaints against Soulias and Corbley as being

time-barred. Backof thereafter appealed.

       The District Court’s jurisdiction over this case stemmed from 28 U.S.C. §§ 1331

and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary




                                             5
review of the District Court’s order to dismiss.1 Saldana v. Kmart Corp., 260 F.3d 228,

231-32 (3d Cir. 2001).

                                        II. Discussion

A. Overview

       Backof’s appeal addresses primarily whether the District Court correctly

dismissed his claims as time-barred. Resolving this issue entails a twofold inquiry: 1)

whether Backof has properly alleged a § 1983 claim based on malicious prosecution; and

2) if so, when that cause of action accrues. We take up these questions in reverse order

(and, not surprisingly, with the easier question first).

B. Statute of Limitations

        It is well-settled that a § 1983 claim based on malicious prosecution does not

accrue until proceedings against the criminal defendant are dismissed. Smith v. Holtz, 87

F.3d 108, 110 (3d Cir. 1996). The applicable statute of limitations for § 1983 actions

derives from the “general or residual [state] statute [of limitations] for personal injury

actions.” Owens v. Okure, 488 U.S. 235, 250 (1989). The relevant statute of limitations

under New Jersey law is the two-year statute of limitations applicable to personal injury


   1
    We assume for the purposes of this opinion that the District Court dismissed Backof’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The “Third Circuit Rule”
permits a court, under appropriate circumstances, to grant a Rule 12(b)(6) motion based
on a limitations defense. See, e.g., Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir.
2002). While the defendants filed a “Motion to Dismiss the Complaint pursuant to Fed. R.
Civ. P. 56(c),” the District Court appears to have instead applied the 12(b)(6) standard.
Given our disposition of the case, this procedural posture is irrelevant.

                                               6
torts: N.J.S.A. § 2A:14-2. See Cito v. Bridgewater Twp. Police Dept., 892 F.2d 23, 24

(3d Cir. 1989).

       In Heck v. Humphrey, 512 U.S. 477, 487 (1994), the Supreme Court concluded

that a claim for malicious prosecution cannot proceed “unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.”

A claim does not accrue “so long as the potential for a judgment in the pending criminal

prosecution continues to exist.” Smith, 87 F.3d at 110. Here there is no doubt that if a

malicious prosecution has been pled adequately, it accrued on June 8, 1999, when the

County Prosecutor’s Office dismissed its charge against Backof.

C. Elements of a § 1983 Malicious Prosecution Claim

       As Backof’s complaint was filed on June 8, 2001, a § 1983 malicious prosecution

claim by him would be timely. But has Backof in fact presented a § 1983 malicious

claim? Or has he merely dressed up some other, time-barred claim as a § 1983 malicious

prosecution claim in order to evade the statute of limitations?2 In considering these


   2
    For example, Backof included a state law false arrest claim in his complaint, and he
might have considered basing his § 1983 claim on false arrest had he not been precluded
from doing so by the statute of limitations. Several courts, including the Second and Fifth
Circuits, have held that § 1983 claims arising from false arrest and related Fourth and
Fifth Amendment violations do not accrue until the plaintiff’s conviction is overturned.
Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995); Woods v. Candela, 47 F.3d 545, 546 (2d
Cir. 1995). But we explicitly rejected this argument in Montgomery v. De Simone, 159
F.3d 120, 126 n.5 (3d Cir. 1998) (“[The plaintiff’s] claims for false arrest and false
imprisonment are not the type of claims contemplated by the Court in Heck which
necessarily implicate the validity of a conviction or sentence. . . . Accordingly, we read
Heck to be consistent with our determination that [her] false arrest and false

                                             7
questions, we ask what precisely Backof was required to allege3 to make out a well-pled

claim for malicious prosecution.4

       We would ordinarily begin this analysis by reciting the elements of a § 1983

malicious prosecution claim in our Circuit. Unfortunately, we have yet to delineate a

concise test of that sort.5 We have, however, identified several elements essential to a

§ 1983 malicious prosecution claim. At a minimum, a plaintiff must allege (1)


imprisonment claims accrued on the night of her arrest.”).
   3
    As a general matter, pleading requirements for § 1983 claims are quite permissive. In
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S.
163, 168 (1993), the Supreme Court held that a court may not apply a “heightened
pleading standard” in § 1983 actions. While the holding explicitly encompassed only
§ 1983 actions against municipalities and left open the question whether the Supreme
Court’s qualified immunity jurisprudence would require heightened pleading in cases
involving individual government officials, id. at 166-67, its logic appears to extend to all
§ 1983 actions. See Loftus v. Southeastern Pa. Transp. Auth., 843 F. Supp. 981, 985 n.4
(E.D. Pa. 1994) (citing several District Court cases so holding). Thus, for example, in
Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir. 1998), we cited Leatherman for the
proposition that notice pleading is sufficient in § 1983 cases. While that case involved a
private party who participated in a conspiracy with state officials, we did not distinguish
among § 1983 cases for the purposes of the notice pleading rule.
   4
     A plaintiff need not necessarily invoke the magic words “malicious prosecution.” In
fact, given the confusion surrounding this brand of § 1983 claim, some courts have
ceased to use the term. See, e.g., Karam v. City of Burbank, 352 F.3d 1188, 1191 (9th Cir.
2003) (referring to “§ 1983 claims that were predicated on an alleged violation of the
Fourth Amendment,” although the plaintiff “alleged ‘malicious prosecution’ in
articulating her § 1983 claims”).
   5
   We are not alone. The Fifth Circuit recently assessed its own case law governing
malicious prosecution claims under § 1983 as follows: “With hindsight, our precedent
governing § 1983 malicious prosecution claims is a mix of misstatements and omissions
which leads to . . . inconsistencies and difficulties.” Castellano v. Fragozo, 352 F.3d 939,
949 (5th Cir. 2003) (en banc).

                                             8
deprivation of liberty (or perhaps some other constitutional right6 ) separate from

substantive due process, Albright v. Oliver, 510 U.S. 266, 271 n.4 (1994); (2) an absence

of probable cause for initiation of the criminal proceedings, Montgomery v. De Simone,

159 F.3d 120, 124 (1998); and (3) termination or reversal of criminal proceedings by

reason of the plaintiff’s innocence,7 Heck v. Humphrey, 512 U.S. at 484; Smith, 87 F.3d

at 110.

          Backof has failed to allege at least the first of these necessary elements.8 In order

   6
    For example, Backof may seek to establish a denial of procedural due process. We
suggested in Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998), that a
Fourth Amendment violation is a necessary predicate to a § 1983 claim for malicious
prosecution, though without holding that a violation of procedural due process would not
support a malicious prosecution claim under § 1983. Eight days later, in Torres v.
McLaughlin, 163 F.3d 169, 172 (3d Cir. 1998), we dealt with this issue and interpreted
Albright as providing “that a section 1983 claim may be based on a constitutional
provision other than the Fourth Amendment,” including procedural due process. Torres
was nonetheless decided on Fourth Amendment grounds.
   7
    Backof must demonstrate that he is actually innocent. Hector v. Watt, 235 F.3d 154,
156 (3d Cir. 2000) (holding that a plaintiff in a § 1983 malicious prosecution action “must
be innocent of the crime charged in the underlying prosecution”).
   8
    Backof has alleged the third element, albeit in minimal detail. Paragraphs 1 and 34 of
his complaint note that the charges against him were administratively dismissed in June
1999. The Appellate Division of the New Jersey Superior Court has held, for purposes of
New Jersey law, that “administrative dismissal is a favorable termination of a criminal
proceeding for purposes of a malicious prosecution action. Disagreements as to the actual
circumstances of the withdrawal or abandonment of the prosecution must be resolved by
the trier of facts.” Rubin v. Nowak, 590 A.2d 249, 251 (N.J. App. 1991). While the
administrative dismissal may satisfy the actual innocence requirement, “not all cases
where the prosecutor abandons criminal charges are considered to have terminated
favorably.” Hilfirty v. Shipman, 91 F.3d 573, 579-80 (3d Cir. 1996) (disapproved on other
grounds by Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782 (3d Cir. 2000)).
Nonetheless, we assume that Backof has satisfied this requirement in the absence of

                                                9
to state a claim for malicious prosecution under § 1983, Backof must allege deprivation

of a qualifying constitutional right. Donahue v. Gavin, 280 F.3d 371, 378 (3d Cir.

2002). Following the Supreme Court’s 1994 decision in Albright, we concluded that

“prosecution without probable cause is not, in and of itself, a constitutional tort. Instead,

the constitutional violation is the deprivation of liberty accompanying the prosecution.

Thus . . . a plaintiff asserting a malicious prosecution claim must show some deprivation

of liberty consistent with the concept of seizure.” Gallo v. City of Philadelphia, 161 F.3d

217, 222 (3d Cir. 1998) (internal quotations and citations omitted). In Gallo, the plaintiff

was released on a personal recognizance bond. He was never arrested, detained, or

handcuffed. As a condition of his release, however, he was prohibited from traveling

outside New Jersey and Pennsylvania. Moreover, he was required to communicate with

pretrial services on a weekly basis. Our Court concluded that these restraints on Gallo’s

liberty amounted to a seizure, though it deemed this “a close question.” Id. at 222.

Backof has not so far alleged similar restraints on his liberty.9

       Not only must Backof demonstrate that he was deprived of a qualifying



evidence “to suggest that the prosecutor acted as he did for any reason other than a careful
determination of plaintiff’s innocence.” Rubin, 590 A.2d at 251.
   9
    Moreover, Backof has not adequately alleged that Corbley and Soulias participated in
depriving him of his rights. While he named the two individuals as defendants, Backof
did not describe their involvement in his prosecution. For example, he might have
indicated in his complaint that Soulias signed the criminal summons and complaint.
Backof’s counsel suggested at oral argument that the defendants were otherwise involved
in Backof’s prosecution; if so, these facts should be set out in the amended complaint.

                                              10
constitutional right under color of state law, but he also must prove that the county acted

without probable cause in initiating criminal proceedings against him. Montgomery, 159

F.3d at 124. In framing his fifth cause of action—a state-law malicious prosecution

claim—Backof alleged that “[t]here was no probable cause to either conduct the search

of [his] home or to institute the criminal proceedings against him.” He did not, however,

incorporate this paragraph into his first or sixth causes of action, which are the causes of

action pertaining to § 1983.

       Whether Backof must also allege the common law elements of a malicious

prosecution claim is a question for another day. Our law on this issue is unclear. In

Gallo, 161 F.3d at 222 n.6, we suggested that “a plaintiff would not need to prove all of

the common law elements of the tort in order to recover in federal court.” Similarly, in

Smith, 87 F.3d at 114, we cautioned that “Heck should not be read to incorporate all of

the common law of malicious prosecution into the federal law governing civil rights

cases of this kind.” See also Montgomery, 159 F.3d at 124. We nonetheless recited a

common law test without acknowledging the changed standard, post-Albright, in Estate

of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003):

              To prove malicious prosecution under section 1983, a plaintiff must
              show that: (1) the defendants initiated a criminal proceeding; (2) the
              criminal proceeding ended in plaintiff’s favor; (3) the proceeding was
              initiated without probable cause; (4) the defendants 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.


                                             11
Given that the twenty-three page opinion in Marasco contains but a one-paragraph

discussion of the plaintiff’s claim under § 1983, our quote may merely be dictum, still

leaving uncertain what is required.10 As a practical matter, we urge Backof, in his

amended complaint, to address each of the common law elements of malicious

prosecution to the extent possible.

        While Backof has not alleged all requisites of a § 1983 claim based on malicious

prosecution, he nonetheless is shooting at an indeterminate target. In this context, we

remand to allow, if in good faith possible, an amended pleading. While leave to amend

pleadings under Federal Rule of Civil Procedure 15(a) is generally at the discretion of the

trial court, Foman v. Davis, 371 U.S. 178, 182 (1962), the Supreme Court clarified in



   10
     For example, there is uncertainty whether Backof must demonstrate that the
defendants acted with malice. In Gallo, 161 F.3d at 222 n.6, we specifically questioned
the continuing validity of the malice requirement, reasoning that “if the harm alleged is a
seizure lacking probable cause, it is unclear why a plaintiff would have to show that the
police acted with malice.” In fact, the Fourth Circuit has gone so far as to conclude that
Supreme Court precedent prohibits the consideration of malice. The Court explained:
                We recognize that actual malice is an element of a malicious
                prosecution claim at common law. And, common-law principles
                “provide the appropriate starting point for” determining the elements
                of § 1983 actions. However, the Supreme Court has indicated that the
                reasonableness of a seizure under the Fourth Amendment should be
                analyzed from an objective perspective. . . . Thus, we conclude that the
                subjective state of mind of the defendant, whether good faith or ill will,
                is irrelevant in this context.
Brooks v. City of Winston-Salem, North Carolina, 85 F.3d 178, 184 n.5 (4th Cir. 1996)
(internal citations omitted).

                                            12
Foman that Federal Rule of Civil Procedure 15(a) (“leave shall be freely given when

justice so requires”) is to be construed liberally: “If the underlying facts or circumstances

relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an

opportunity to test his claim on the merits.” Id. at 182. In this case, Backof did not move

for leave to amend. We have held, however, that while “procedure[s] for obtaining leave

to amend pleadings set forth in Rule 8 of the Fed. R. Civ. P. should generally be

heeded, . . . rigid adherence to formalities and technicalities must give way before the

policies underlying Rule 15.” Heyl & Patterson Intern., Inc. v. F. D. Rich Housing of

Virgin Islands, Inc., 663 F.2d 419, 426 (3d Cir. 1981).

                                      III. Conclusion

       A § 1983 claim filed in New Jersey and based on malicious prosecution is timely

if it is filed within two years of the dismissal of criminal charges. While we conclude that

Backof’s complaint does not currently allege sufficient facts to state a claim for

malicious prosecution under § 1983, the facts he has supplied to our Court, properly

formulated, might survive a motion to dismiss or for summary judgment. We therefore

vacate the District Court’s ruling and remand for it to permit Backof to amend his

complaint.

Garth, Circuit Judge, concurring

       The record in this case does not reveal any of the essential elements of a § 1983

malicious prosecution claim. See Donahue v. Gavin, 280 F.3d 371 (3d Cir. 2002); Gallo


                                             13
v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998). Hence, it is not surprising that

neither at oral argument nor in his brief did Backof assert these required elements.

Accordingly, I have regarded his amended complaint as setting forth a classic, garden-

variety state law claim.

       Nonetheless, I am persuaded by the eloquent majority opinion to permit yet

another attempt by Backof to make out a § 1983 malicious prosecution claim. So rather

than deprive Backof of the opportunity to amend, I concur in the Court’s judgment.




                                            14
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