                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-1844
                                      _____________

                                   DAMON CARNEY,

                                                           Appellant

                                             v.

                   PENNSAUKEN TOWNSHIP POLICE DEPARTMENT;
                    CITY OF PENNSAUKEN; CVS PHARMACY, INC.;
           JOHN DOES 1-10; OFFICER RICHARD NURTHEN, individually and
           in his official capacity as a police officer; WENDY FREY, individually
              and in her official capacity as an employee of CVS Pharmacy, Inc.
                                        _______________

                      On Appeal from the United States District Court
                               for the District of New Jersey
                                 (D.C. No. 1-11-cv-07366)
                       District Judge: Honorable Robert B. Kugler
                                     _______________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 23, 2015

           Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.

                                 (Filed: January 23, 2015)
                                     _______________

                                       OPINION
                                    _______________



       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

          Damon Carney challenges the District Court’s entry of summary judgment against

him. He specifically argues that probable cause did not exist to charge him with an

attempt to unlawfully obtain possession of the drug Percocet through a forged

prescription and, therefore, that the District Court incorrectly held that his malicious

prosecution claim failed as a matter of law. His argument is unpersuasive, and we will

affirm.

I.        Background

          On July 8, 2011, Carney presented two prescriptions to a CVS Pharmacy in

Pennsauken, New Jersey. One prescription was for 30 tablets of Motrin and the other

was for 8 tablets of Percocet. Both prescriptions were on forms issued by Cooper

University Hospital in Camden, New Jersey. In addition, both prescriptions were

computer-printed and indicated “Refills: 0 (Zero),” but they both had a mark that looked

like a handwritten numeral “1” on a separate line used to designate refills.

          Wanda Frey, the CVS Pharmacy technician who received the prescriptions,

determined that the mark on the Percocet prescription was suspicious because, in her

experience, prescriptions from hospitals never included refills.1 After discussing her

suspicion with the pharmacist on duty, Frey called Cooper University Hospital and

learned that no refills were authorized on the prescriptions. The CVS pharmacist then

instructed Frey to call the police, which she did.


        Carney referred to Ms. Frey as “Wendy Frey” in his pleadings, but her deposition
          1

transcript refers to her as “Wanda Frey.”
                                              2
       After Frey contacted the police, Officer Richard Nurthen arrived to investigate the

matter. Frey showed Officer Nurthen the Percocet prescription and explained that it had

been changed because the typed portion of the prescription indicated “zero” refills, but

she believed someone had written a numeral “1” on a separate refill line. Frey also told

Officer Nurthen that she had contacted the hospital and that hospital staff had informed

her that the Percocet prescription did not include refills. Officer Nurthen took possession

of the prescriptions and contacted the hospital on his own. He was informed that the

Percocet prescription did not include any refills. When Carney returned to the CVS

Pharmacy to pick up the prescriptions, Officer Nurthen – relying on his training,

experience, observation of the prescription, and information that he obtained from Frey

and the hospital – arrested him and charged him with, among other things, violating N.J.

STAT. ANN. 2C:35-10.5(d), which makes it unlawful to attempt to obtain a prescription

drug through forgery. The charges against Carney were subsequently dismissed by the

prosecutor’s office.

       On December 20, 2011, Carney filed suit against Officer Nurthen, the City of

Pennsauken, the Pennsauken Township Police Department, and CVS Pharmacy, Inc.,

alleging violations of his civil rights, and asserting that he incurred $6,000 in attorney’s

fees in defending against criminal charges filed against him. Carney subsequently filed

an amended complaint which added Wanda Frey as a defendant and alleged new causes

of action. Later, Carney was granted leave to amend his complaint a second time. The

Second Amended Complaint asserted the following claims: (1) a claim for malicious

prosecution with respect to Officer Nurthen; (2) a claim under 42 U.S.C. § 1983, pursuant

                                              3
to Monell v. Department of Social Services, 436 U.S. 658 (1978), asserted against Officer

Nurthen, the City of Pennsauken, and the Pennsauken Township Police Department; and

(3) a claim for malicious prosecution with respect to Wanda Frey and CVS Pharmacy,

Inc. The District Court dismissed the malicious prosecution claim with respect to Wanda

Frey and CVS Pharmacy, Inc., and Carney does not appeal that dismissal. Subsequently,

the District Court granted summary judgment in favor of the remaining defendants as to

all claims asserted against them.2 Carney has timely appealed the entry of summary

judgment.

II.    Discussion3

       As noted above, Carney argues that probable cause did not exist to charge him

with an attempt to unlawfully obtain possession of Percocet through a forged prescription

and that, as a result, the District Court incorrectly held that his malicious prosecution

claim against Officer Nurthen, the City of Pennsauken, and the Pennsauken Township

Police Department failed as a matter of law. His argument fails.4

       To establish a malicious prosecution claim under section 1983, Carney was

required to show that: “(1) the defendants initiated a criminal proceeding; (2) the criminal

       2
          Carney did not oppose the remaining defendants’ motion for summary judgment
as to the Monell claim, and he does not press it on appeal. Therefore, we need not
address that claim.
        3
          The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We exercise de novo review of the District Court’s grant
of summary judgment. Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). Summary
judgment is proper when the evidence shows “that 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).
        4
          Because we conclude that Carney’s claims were properly disposed of on the
merits, we need not address the parties’ arguments on qualified immunity.
                                              4
proceeding ended in [Carney’s] favor; (3) the proceeding was initiated without probable

cause; (4) the defendants acted maliciously or for a purpose other than bringing [Carney]

to justice; and (5) [Carney] suffered deprivation of liberty consistent with the concept of

seizure as a consequence of a legal proceeding.”5 Estate of Smith v. Marasco, 318 F.3d

497, 521 (3d Cir. 2003).

       The only element of Carney’s malicious prosecution claim disputed below was

whether the proceeding was initiated without probable cause. Because the District Court

entered summary judgment in the defendants’ favor on that issue, it is the focus of

Carney’s appeal.

       To determine whether Officer Nurthen and the other defendants had probable

cause to arrest and initiate a prosecution against Carney, we look to the totality of the

circumstances and rely on “the factual and practical considerations of everyday life on

which reasonable and prudent men … act.” Illinois v. Gates, 462 U.S. 213, 230-31

(1983). “Probable cause to arrest requires more than mere suspicion; however, it does

not require that the officer have evidence sufficient to prove guilt beyond a reasonable

doubt.” Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). The facts must

support a belief that there was a fair probability that Carney committed the crime at issue.

Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000).

       5
         To the extent Carney asserts that he also brought a state law claim for malicious
prosecution, that claim is similar to the federal law claim and requires a lack of probable
cause. See, e.g., Lind v. Schmid, 337 A.2d 365, 368 (N.J. 1975) (“A malicious
prosecution action arising out of a criminal prosecution requires proof: (1) that the
criminal action was instituted by the defendant against the plaintiff, (2) that it was
actuated by malice, (3) that there was an absence of probable cause for the proceeding,
and (4) that it was terminated favorably to the plaintiff.”).
                                              5
       Carney advances two arguments in his attempt to establish that probable cause was

lacking. First, he says that a genuine factual dispute exists as to whether the mark on the

refill line that appears to be a numeral “1” is nothing more than a “smudge” and that such

an inadvertent mark could not reasonably be construed as a forgery. (Carney’s Br. at 17.)

But that contention fails. Officer Nurthen was aware of sufficient facts at the time of the

arrest to reasonably believe that Carney had altered the prescription form so that it

permitted its holder to obtain “1” refill instead of “zero.” Carney’s contention that the

mark – which looks remarkably like a handwritten numeral “1” – was actually a smudge

does not create a genuine dispute of material fact as to whether Officer Nurthen

reasonably believed at the time he arrested Carney that the mark constituted a forgery.

       Second, Carney says that Officer Nurthen did not have probable cause to believe

that Carney had the necessary mens rea to be charged with a violation of the New Jersey

statute. But that contention too is unpersuasive. Officer Nurthen was aware of sufficient

facts to reasonably believe that Carney presented the forged prescription to CVS

Pharmacy employees with the intent to obtain Percocet in violation of N.J. STAT. ANN.

2C:35-10.5(d). Carney’s assertion that he did not actually possess the necessary mens rea

is irrelevant; all that matters for purposes of his civil claim is whether Officer Nurthen

reasonably believed that he did. See, e.g., Zalaski v. City of Hartford, 723 F.3d 382, 393-

95 (2d Cir. 2013) (finding that, based on the totality of the circumstances, it was

reasonable for a police officer to conclude that criminal defendants possessed the

necessary mens rea to commit a crime). And the record clearly demonstrates the lack of

any genuine factual dispute that Officer Nurthen’s belief was reasonable. Indeed, it is

                                              6
surprising and somewhat troubling that a malicious prosecution claim was even asserted

on these facts and that Carney continued to pursue the claim on appeal.

III.   Conclusion

       For the reasons noted, we will affirm the judgment of the District Court.




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