                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 13-4053
                                    ___________

                                 DAVID STETSER,
                                       Appellant

                                          v.

SHERRY JINKS, Individ. & in her official capacity as a Police Officer in the Gloucester
    Township Police Department; GLOUCESTER TOWNSHIP; GLOUCESTER
   TOWNSHIP POLICE DEPARTMENT; W. HARRY EARL, Chief of Police of
 Gloucester Township Police Department, Individually and in His official capacity as
   Chief of Police of Gloucester Township Police Department; JOHN DOES 1-10
                            _______________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                           (D.C. Civil No. 1-10-cv-03094)
                     District Judge: Honorable Renee M. Bumb
                                   ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 5, 2014

             Before: HARDIMAN, SCIRICA, and ROTH, Circuit Judges

                            (Opinion Filed: July 10, 2014)

                                 _________________

                             OPINION OF THE COURT
                                _________________


SCIRICA, Circuit Judge.
       Appellant David Stetser filed a complaint against Officer Sherry Jinks for

malicious prosecution under 42 U.S.C. § 1983. The District Court granted summary

judgment to Officer Jinks, finding as a matter of law she had probable cause to initiate

the prosecution, and denied Stetser’s motion for reconsideration. Stetser appeals both

orders. We will affirm. 1

                                            I.

       On October 3, 2007, Stetser and his wife, Jacqueline Stetser, divorced. Afterward,

Jacqueline Stetser was granted a temporary restraining order against Stetser, which

matured into a final restraining order on April 28, 2008. The restraining order prohibited

Stetser from having any contact with his ex-wife and from visiting his two children.

       On August 21, 2008, Jacqueline Stetser entered the police department in

Gloucester Township, New Jersey, and complained to Officer Jinks that her ex-husband

violated the restraining order by sending her a text message containing a picture of a

woman performing fellatio on a man.        Jacqueline Stetser showed Officer Jinks the

message on her cell phone and signed a statement that she had received the lewd picture

from her ex-husband and that it was sent to her cell phone number from his cell phone

number. Stetser does not dispute that the number from which the picture was sent

previously belonged to him. Relying on Jacqueline Stetser’s statement, Officer Jinks

filed a criminal complaint against Stetser on August 21, 2008. At that time, Officer Jinks

was well aware of Jacqueline and David Stetser from their previous contacts with the

police and complaints they had filed against each other.

1
  The District Court had federal question jurisdiction under 28 U.S.C. § 1331. Our
jurisdiction is provided by 28 U.S.C. § 1291.
                                            2
       The criminal complaint charged Stetser with violating the restraining order and

harassment.   Stetser claimed he had changed his cell phone number after the final

restraining order went into effect, and that the number from which his ex-wife received

the lewd picture no longer belonged to him. At trial, Stetser presented evidence based on

cell phone records that he did not send the lewd picture, and the charges were dismissed.

       Stetser then filed this § 1983 malicious prosecution claim against Officer Jinks in

federal court. As noted, the District Court granted summary judgment in favor of Officer

Jinks, finding she had probable cause to initiate the criminal prosecution. This timely

appeal followed. 2

                                            II.

       To prevail on a § 1983 malicious prosecution claim, a plaintiff must show that the

“proceeding was initiated without probable cause.” Kossler v. Crisanti, 564 F.3d 181,

186 (3d Cir. 2009) (en banc) (citation omitted). Probable cause 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.”

United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990) (citing Dunaway v. New York,

442 U.S. 200, 208 n.9 (1979)). A court determining whether an officer had probable

cause considers an objective officer’s beliefs rather than the arresting officer’s state of

mind. Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Although the probable cause

2
  We exercise plenary review of an order granting summary judgment. Kossler v.
Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc). Drawing all inferences in the light
most favorable to the nonmovant, Curley v. Klem, 499 F.3d 199, 203 (3d Cir. 2007), we
may affirm the entry of summary judgment if “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).
                                             3
inquiry is usually a question for the jury, “where no genuine issue as to any material fact

exists and where credibility conflicts are absent, summary judgment may be appropriate.”

Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (citation omitted), abrogated on

other grounds by Curley, 499 F.3d at 209-11.

       In this case, the District Court found Officer Jinks had probable cause to initiate

the prosecution. We agree. Officer Jinks initiated a criminal proceeding against Stetser

on the basis of Jacqueline Stetser’s statement that she had received a lewd picture from

her ex-husband. As noted, Jacqueline Stetser showed the picture to Officer Jinks and

signed a statement that the cell phone number from which she received the picture was

her ex-husband’s number.      Based on this evidence, a reasonable officer would be

warranted in believing Stetser had violated the restraining order. See Wilson v. Russo,

212 F.3d 781, 790 (3d Cir. 2000) (noting “a positive identification by a victim witness,

without more, would usually be sufficient to establish probable cause”).

       Stetser contends his ex-wife was an unreliable witness and Officer Jinks should

have conducted further investigation before filing the criminal complaint. Yet an officer

is “not required to undertake an exhaustive investigation in order to validate the probable

cause that, in [her] mind, already exist[s].” Merkle v. Upper Dublin Sch. Dist., 211 F.3d

782, 790 n.8 (3d Cir. 2000). Because the facts known to her established probable cause,

Officer Jinks was not required to investigate further. Moreover, it would have been

implausible to speculate the message could have been sent by someone other than Stetser.

As the District Court reasoned, “it would mean that someone, with the same number that

[Stetser] undisputedly had, randomly sent a lewd photograph to [Stetser’s] former wife.”

                                            4
Stetser v. Jinks, Civil No. 10-3094, 2013 WL 3791613, at *3 (D.N.J. July 19, 2013)

(emphasis in original). Accordingly, there was sufficient probable cause to file the

complaint.

      Nor does the fact that Officer Jinks observed David and Jacqueline Stetsers’

previous disputes at the police department render Jacqueline Stetser an unreliable

witness.     Although we have stated that “[i]ndependent exculpatory evidence or

substantial evidence of the witness’s own unreliability . . . could outweigh [a victim’s]

identification” and thus defeat probable cause, each case must be examined on its facts.

Wilson, 212 F.3d at 790. In this case, Officer Jinks’s awareness that Jacqueline Stetser

was willing to file criminal complaints does not erode the finding of probable cause.

      In sum, we find Officer Jinks had probable cause to initiate the criminal

prosecution against Stetser. Officer Jinks is entitled to summary judgment. Although

Stetser also appeals the denial of his motion for reconsideration, he advances no

arguments independent of his challenge to the order granting summary judgment.

Accordingly, on the grounds stated, we find the motion for reconsideration was correctly

denied.

                                           III.

      For the foregoing reasons, we will affirm the District Court’s orders granting

summary judgment and denying the motion for reconsideration.




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