                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

Marable v. Pottsgrove
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3080




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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  __________

                      No. 05-3080
                      __________

NEWSTELL MARABLE, SR; NEWSTELL MARABLE, JR.;
   NEWSTELL MARABLE, III; MERRIT MARABLE

                            v.

WEST POTTSGROVE TOWNSHIP; WEST POTTSGROVE
 POLICE; BRIAN HASS; STEVEN ZIEGLER; DOUGLASS
BERKS COUNTY TOWNSHIP; DOUGLASS BERKS POLICE
DEPT.; DANA DOTTERER; JOHN STASIK; JOHN HENRY;
 NORTH COVENTRY TOWNSHIP; NORTH COVENTRY
 POLICE DEPT.; ROBERT HOLLIS; AMITY TOWNSHIP;
  AMITY TOWNSHIP POLICE DEPT.; MARK SCHERER;
  UPPER POTTSGROVE TOWNSHIP; U. POTTSGROVE
          POLICE DEPT. BARRY BERTOLET

             NEWSTELL MARABLE, JR.,

                                  Appellant

                      __________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
             (Civ. Action No. 03-CV-3738)
      (Honorable Paul S. Diamond, District Judge)
                      __________

    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                    March 31, 2006




                            1
    Before: SMITH and COWEN, Circuit Judges, and ACKERMAN, District Judge.*

                                  (Filed: April 19, 2006 )
                                        __________

                               OPINION OF THE COURT
                                     __________

       ACKERMAN, District Judge. This is an appeal from a grant of summary

judgment in favor of defendants as to all counts of a complaint alleging claims under 42

U.S.C. §§ 1983 and 1985 for violation of the First, Fourth, Fifth, and Fourteenth

Amendments, and state common-law claims for false arrest, false imprisonment,

malicious prosecution, abuse of process, assault and battery, and intentional infliction of

emotional distress. On appeal, Plaintiff-Appellant Newstell Marable, Jr. contends that

there are genuine issues of material fact that should have precluded the District Court

from granting summary judgment as to his claims for false arrest, malicious prosecution,

abuse of process, and civil rights conspiracy, as well as his § 1983 claim against the

municipal defendants. For the reasons discussed below, we AFFIRM.




                                   I. BACKGROUND

       This action arises from events occurring on July 7, 2001 and involving Plaintiff-

Appellant Newstell Marable, Jr. (“Marable Jr.”), his father, Newstell Marable, Sr.




       *
      The Honorable Harold A. Ackerman, United States District Judge for the District
of New Jersey, sitting by designation.

                                             2
(“Marable Sr.”), and his children, Newstell Marable, III (“Marable III”) and Merrit

Marable (“Merrit”).1 Marable Sr. testified that on that date, he, Marable III, and Merrit

drove to a Wawa gas station in Douglass Township, Pennsylvania to purchase gas. They

pulled up to the pump, apparently in front of a waiting SUV. This prompted the SUV

driver to begin blowing his horn and waving his hands. When Marable Sr. approached

the driver, the driver allegedly insulted Marable Sr. and Marable III, who are African-

American, using racially derogatory terms. Marable Sr. contends that he made no

response, but simply walked away and continued on his business.

       At some point after this encounter, the driver apparently called 9-1-1 to report that

an individual at the Wawa gas station had threatened him with a gun. Officer Mark

Scherer of the Amity Township Police Department testified that on the 9-1-1 tape, the

driver clearly indicated that this individual had actually drawn a gun on him. (App. at 577

(Scherer Dep. at 104:16).) Officer Scherer received the report at approximately 10:00

A.M., and proceeded to the Wawa, where he spoke with the driver. The driver reported

that a black male fitting Marable Sr.’s description and driving a two-tone brown pickup

truck had threatened to get a gun and “blow [the driver’s] head off.” The driver’s 11-

year-old son, who was in the SUV at the time, corroborated the threat. (App. at 180

(Amity Township Police Department Incident Report # 26-01-0390).) Marable Sr.



       1
       The briefs vary as to the proper spelling of “Merrit.” We use the spelling “Merrit”
throughout this Opinion because it is the spelling that appears in the Court’s records and
minutes.

                                             3
categorically denies having made this threat.

       Officer Scherer processed the license plate number provided by the driver and

learned that the truck was registered to Marable Sr.’s address in Douglassville,

Pennsylvania. Boyertown and Montgomery County radio dispatchers issued a “be on the

lookout” (“BOLO”) dispatch to police departments in the surrounding area. Although the

driver told Officer Scherer that he had not actually seen a gun, this fact was left out of the

BOLO dispatch. The dispatch merely indicated that the suspect was reported to have

threatened someone with a gun.

       Some time later, Marable Sr., who was driving home, noticed a police car

following his vehicle for about five miles. Officer George Hollis of the North Coventry

Police Department apparently was the first officer to observe Marable Sr.’s vehicle.

Upon spotting the truck, Officer Hollis reportedly radioed Officer Steve Ziegler of the

West Pottsgrove Township Police Department for assistance in performing a felony car

stop. Officer Brian Cass of the West Pottsgrove Township Police Department was in the

car when Officer Ziegler received the call. Montgomery County Dispatch instructed the

officers to “stop and hold” the individual driving the truck. Officers Ziegler and Cass

thereafter met up with Officer Hollis, and the officers followed Marable Sr. to his

residence.

       The record is clear that soon after Marable Sr. pulled into his driveway, and as he

and his grandsons were attempting to unload a lawn tractor from the back of the truck, the



                                                4
officers pulled up behind his vehicle and emerged from their patrol cars. There is no

dispute that the officers had their guns drawn as they began to perform a felony car stop.

The officers ordered Marable Sr., Marable III, and Merrit to move away from the truck

and lie face down on the ground. Each was searched and handcuffed. Officer Ziegler

placed Marable Sr. in the back of his (Ziegler’s) patrol car; the officers simultaneously

placed Marable III and Merrit in the back of Officer Hollis’s patrol car.

       As the officers performed these arrests in Marable Sr.’s driveway, his wife,

Millicent Marable, emerged from the house. Upon seeing her husband lying face down

on the driveway with a police officer pointing a gun at him, Mrs. Marable immediately

went back into the house and phoned the family attorney, Paul Prince, and her son,

Marable Jr.

       Earlier in the day, Officer John Henry of the Douglassville Police Department had

spoken in person with Officer Scherer. Officer Scherer stated that he had determined that

no gun was shown or displayed at the Wawa. He also provided Officer Henry with a

business card, and asked Officer Henry to provide the card to the resident at Marable Sr.’s

address if Officer Henry should happen to see him. Officer Henry did not immediately

proceed to the address.

       Some time later, Officer Henry received a radio dispatch indicating that his

assistance was needed at Marable Sr.’s address. Officer Henry arrived at the address to

find Marable Sr., Marable III, and Merrit in the back seats of the two patrol cars. Around



                                             5
the same time, Officer Barry Bertolet of the Upper Pottsgrove Police Department also

arrived. Officer Henry testified that he attempted to obtain information concerning what

had happened from the other officers and from Marable Sr., Marable III, and Merrit.

Officers Henry and Hollis dispute Marable Sr.’s contention that he was transferred to the

back of Officer Henry’s patrol car. At deposition, Marable Sr. admitted to telling Officer

Henry, in response to the officer’s questioning, that there was a gun in the house. (App.

at 702 (Marable Sr. Dep. at 42:1-3).)

       Marable Jr. arrived on the scene after Marable Sr., Marable III, and Merrit had

been in police custody for about 35 minutes. There is no dispute that Marable Jr. was

upset at seeing his children in the back of a patrol car, and that he confronted the officers

in a loud voice, demanding to know why his children were detained. When no

satisfactory answer was forthcoming, Marable Jr. went into and out of the house

numerous times “to try and calm down.” (App. at 679 (Marable Jr. Dep. at 14:14).)

       Marable Jr. admits telling the officers that “I have something for you. The

attorney is on his way up here and he can straighten the problem out.” (App. at 679

(Marable Jr. Dep. at 13:3-5).) At his June 3, 2002 guilty plea and sentencing, Marable Jr.

did not deny stating in a loud voice, “I have something for all you mother f---ers,” and

immediately thereafter entering the house. (App. at 366.) Officers Hollis, Bertolet,

Ziegler, and Cass stated in their appellate briefs that Marable Jr.’s words and actions were

“of concern” in light of the fact that Marable Sr. was a self-professed “militant” who had



                                              6
earlier told Officer Henry that there was a gun in the house.

       Around this time, Officer Scherer appeared at the scene after having been

summoned by dispatch. Officers Henry and Hollis subsequently removed the handcuffs

from Marable III and Merrit and released them from the patrol car.

       At this point in the narrative, the officers’ versions of the facts diverge

significantly from Marable Jr.’s recollection of the events. There appears to be no dispute

that Marable Jr. had reemerged from the house and was addressing Officers Ziegler and

Bertolet on the lawn. Officer Bertolet recalls that Marable Jr. was “yelling and

threatening Officer Ziegler.” (App. at 511 (Bertolet Dep. at 33:3-4).) In addition, there

appears to be no dispute that Marable Jr. “unintentionally” spat in Officer Ziegler’s face

at least once, and possibly as many as three times, for which Officer Ziegler had to

undergo subsequent testing for HIV and other diseases. Officer Bertolet also testified that

he and Officer Ziegler repeatedly told Marable Jr. to calm down, and that after several

warnings, the officers advised Marable Jr. that he was going to be arrested. Marable Jr.

recalls only being told to “stop, and put your hands behind your back.” (App. at 680

(Marable Jr. Dep. at 17:10-11).)

       There is no dispute that Marable Jr. put his hands straight up in the air. (App. at

398 (Ziegler Dep. at 93:6-7); id. at 680 (Marable Jr. Dep. 17:11-12).) Officers Ziegler

and Bertolet recall grabbing Marable Jr.’s arms at this point, and there is no dispute that

the officers forced Marable Jr. to the ground. (App. at 398 (Ziegler Dep. at 93:18-20); id.



                                               7
at 511-12 (Bertolet Dep. at 33:23-34:3); id. at 680 (Marable Jr. Dep. at 17:13).) Both

officers testified that they, too, fell to the ground as they attempted to get Marable Jr.’s

hands behind his back. Marable Jr. testified that he was in the process of bringing his

hands down when the officers threw him on the ground without prior warning. (App. at

680 (Marable Jr. Dep. at 17:10-15).)

       Around the time that Officers Ziegler and Bertolet were on the ground with

Marable Jr., Officer Henry took Marable Sr. out of the back of the patrol car and began to

take the handcuffs off him. Officer Henry testified that he had gotten one handcuff off

Marable Sr. when Marable Sr. “broke free” and ran toward Officers Ziegler and Bertolet.

(App. at 447 (Henry Dep. at 91:9-14).) At this time, Officer Bertolet testified, he felt a

“thud” on his back as “someone” hit him from behind with their body. (App. at 512

(Henry Dep. at 36:25); id. at 517 (Henry Dep. at 49).) Marable Sr. testified that he never

rushed Officers Ziegler and Bertolet. Rather, he testified, his legs were weak from sitting

in the patrol car for 40 to 45 minutes, and he “stumbled” when Officer Henry brought him

out. (App. at 704 (Marable Sr. Dep. at 51:13-16).) He also testified that he was pushed

to the ground by “some officer.” (Id.)

       Officer Henry recalls pulling Marable Sr. off of Officer Bertolet’s back and falling

to the ground with Marable Sr. There, Officer Henry testified, he attempted once again to

secure the handcuffs on Marable Sr.’s hands, and Marable Sr. resisted. Ultimately,

Officer Henry testified, he secured Marable Sr. in the back seat of a patrol car and



                                               8
advised him that he was under arrest for aggravated assault on a police officer. Marable

Sr. disputes that he was ever on Officer Bertolet’s back or that he resisted arrest, and

contends that handcuffs were on him at all times. The record reflects that Officers

Ziegler and Bertolet ultimately secured Marable Jr.’s hands in handcuffs and placed him

in the back of a patrol car.

       Briefs filed by Appellees North Coventry Township and Officer Hollis, and by

Appellees Upper Pottsgrove Township, West Pottsgrove Township, and Officers Bertolet,

Ziegler, and Cass, indicate that Marable Sr. subsequently pled guilty to one count of

disorderly conduct. On June 2, 2002, Marable Jr. appeared before the Court of Common

Pleas of Berks County, Pennsylvania, and pled nolo contendere to one count of resisting

arrest. The Court assessed a nominal fine and sentenced Marable Jr. to probation for a

term of 12 months.

       On June 20, 2003, Marable Jr., Marable Sr., Marable III, and Merrit initiated the

instant action against numerous municipalities and police officers, alleging claims under

42 U.S.C. §§ 1983 and 1985 for violation of the First, Fourth, Fifth, and Fourteenth

Amendments, and state common-law claims for false arrest, false imprisonment,

malicious prosecution, abuse of process, assault and battery, and intentional infliction of

emotional distress. The District Court dismissed the Complaint’s Fifth Amendment

claims on April 30, 2004. Upon completion of discovery, the District Court, on May 2,

2005, granted summary judgment for the defendants on all of Marable Jr.’s remaining



                                              9
claims, leaving for trial only several claims of Marable Sr., Marable III, and Merrit.

These three plaintiffs subsequently settled with all defendants, and the District Court

dismissed the action on May 19, 2005 pursuant to Local Rule 41.1(b).

       Marable Jr., who was the only non-settling plaintiff, timely filed this appeal on

June 16, 2005. In his appellate brief, Marable Jr. identifies one, all-encompassing issue:

whether the District Court erred in granting summary judgment. This Court has

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We now affirm.




                                      II. ANALYSIS

       We review a district court’s grant of summary judgment de novo and apply the

same standard that the district court utilized under Federal Rule of Civil Procedure 56(c).

Antonelli v. New Jersey, 419 F.3d 267, 272 (3d Cir. 2005). Summary judgment is

appropriate only where “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A

district court faced with a summary judgment motion must view all evidence and the

inferences to be drawn therefrom in the light most favorable to the non-movant.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The critical

inquiry for a district court is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).



                                             10
       In his appellate brief, Marable Jr. identifies five theories on which he contends the

District Court erred in granting summary judgment for the defendants. He contends that

genuine issues of material fact exist as to his § 1983 claim for false arrest, his § 1983 and

common-law claims for malicious prosecution, his § 1983 claim for abuse of process, his

§ 1985 claim for conspiracy, and his claim against the municipal defendants pursuant to

Monell v. Department of Social Services, 436 U.S. 658 (1978).

       A.     False Arrest and Malicious Prosecution

       Marable Jr. pled nolo contendere to one count of resisting arrest pursuant to 18 Pa.

C.S.A. § 5104. A conviction under this provision requires that the arrest be lawful. In re

Barry W., 423 Pa. Super. 549, 557, 621 A.2d 669, 673 (1993). In United States v.

Poellnitz, 372 F.3d 562, 567, 568 (3d Cir. 2004), we recognized that under Pennsylvania

law, a plea of nolo contendere does not constitute an admission of guilt, but merely

signifies the defendant’s consent to being punished as if he were guilty. Nevertheless, we

also recognized that a plea of nolo contendere “is indisputably tantamount to a

conviction.” Id. at 566; see also Eisenberg v. Commonwealth, Dep’t of Pub. Welfare, 512

Pa. 181, 185, 516 A.2d 333, 335 (1986) (quoting Commonwealth v. Ferguson, 44 Pa.

Super. 626, 628 (1910)).

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

considered the circumstances under which a person convicted of a crime by a state

tribunal may recover damages pursuant to § 1983 for unconstitutional conviction or



                                             11
imprisonment. The Court held that “in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove

that the conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. §

2254.” Id. at 486-87 (footnote omitted). If the state court conviction remains

undisturbed, the Supreme Court wrote, then a cause of action under § 1983 that calls into

question the plaintiff’s state conviction has not yet accrued. Id. at 487, 490. In applying

this principle, a court’s central inquiry should be whether a judgment in favor of the §

1983 plaintiff would necessarily imply the invalidity of the state conviction or sentence.

Id. at 487 & n.7.

       There is no dispute that Marable Jr.’s state court conviction was never reversed,

invalidated, or called into question by the issuance of a writ of habeas corpus. Therefore,

we must consider whether permitting Marable Jr. to recover damages on his § 1983

claims for false arrest and malicious prosecution would necessarily imply the invalidity of

his state court conviction. A claim of false arrest or false imprisonment requires the

plaintiff to establish “(1) the detention of the person, and (2) the unlawfulness of that

detention.” Valenti v. Sheeler, 765 F. Supp. 227, 232 (E.D. Pa. 1991); see also Martell v.

Chisholm, 384 F. Supp. 1224, 1226 (W.D. Pa. 1974) (“[W]hen the arrest and confinement



                                              12
are inextricably connected then the cause of action is one for false arrest and not false

imprisonment.”). The unlawfulness of the detention is a sine qua non. See Forgione v.

United States, 202 F.2d 249, 252 (3d Cir. 1953) (noting that “false arrest and false

imprisonment . . . consist of arrest or restraint without adequate legal justification”).

       Likewise, a viable claim for malicious prosecution under § 1983 requires the

plaintiff to prove 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.” Estate of Smith v. Marasco,

318 F.3d 497, 521 (3d Cir. 2003). Thus, liability for malicious prosecution will not attach

if the allegedly malicious prosecution did not result in a favorable outcome for the civil

rights plaintiff. See Gilles v. Davis, 427 F.3d 197, 210 (3d Cir. 2005). We have

recognized the same requirement of claims for malicious prosecution under Pennsylvania

common law. See City of Erie, Pa. v. Guar. Nat’l Ins. Co., 109 F.3d 156, 161 (3d Cir.

1997) (“Under Pennsylvania law, favorable termination is an essential element of the tort

of malicious prosecution.”).

       With respect to a claim either for false arrest or malicious prosecution, it is clear

that an award of damages in this case would necessarily imply that Marable Jr.’s state

court conviction and sentence were unlawful. An award of damages pursuant to the false



                                               13
arrest claim would require a finding that Marable Jr. had been unlawfully detained. Such

a finding would be sharply at odds with the fact of Marable Jr.’s conviction under 18 Pa.

C.S.A. § 5104, requiring that the underlying arrest be lawful. Similarly, an award of

damages pursuant to the malicious prosecution claim would require a finding that the

state proceedings ended favorably for Marable Jr., despite his conviction and sentence. In

either instance, Heck bars Marable Jr.’s recovery. See Heck, 512 U.S. at 486-87

(discussing specifically the tort of malicious prosecution). Therefore, we find that the

District Court did not err in granting summary judgment to the defendants on Marable

Jr.’s claims for false arrest and malicious prosecution.1

       B.     Abuse of Process

       An abuse of process occurs when a party employs legal process against another

primarily to accomplish a purpose for which it was not designed. Gen. Refractories Co.

v. Fireman’s Fund Ins. Co., 337 F.3d 297, 304 (3d Cir. 2003). Pennsylvania recognizes a

cause of action for abuse of process where “the defendant (1) used a legal process against

the plaintiff, (2) primarily to accomplish a purpose for which the process was not

designed; and (3) harm has been caused to the plaintiff.” Rosen v. Am. Bank of Rolla, 426




       1
         It is of no significance that the state prosecutor dropped the charge of making
terroristic threats as part of the plea agreement he reached with Marable Jr. A
prosecutor’s decision to drop charges as part of a compromise with the accused does not
amount to a “favorable termination” of state proceedings for purposes of permitting the
accused to maintain a subsequent claim under § 1983 for malicious prosecution. See
Hilferty v. Shipman, 91 F.3d 573, 580 (3d Cir. 1996).

                                             14
Pa. Super. 376, 382, 627 A.2d 190, 192 (1993). For a cause of action to lie, there must

have been a “perversion” of legal process. Gen. Refractories, 337 F.3d at 304. “‘[T]here

is no action for abuse of process when the process is used for the purpose for which it is

intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the

defendant . . . .’” Rosen, 426 Pa. Super. at 382, 627 A.2d at 192 (quoting Restatement

(Second) of Torts § 682 cmt. b (1977)). We have previously recognized that arrest

constitutes a form of legal process. See Simone v. Golden Nugget Hotel & Casino, 844

F.2d 1031, 1037 (3d Cir. 1988).

       The District Court granted summary judgment for the defendants as to Marable

Jr.’s claim for abuse of process, finding no evidence in the record that the police officers

“perverted” legal process or sought any object beyond Marable Jr.’s criminal conviction.

Having carefully reviewed the record, we agree. The events of July 7, 2001 are far

removed from the “usual case” of abuse of process, where legal process is employed for

extortionate or coercive objectives. See Rosen, 426 Pa. Super. at 382, 627 A.2d at 192

(quoting Restatement (Second) of Torts § 682 cmt. b (1977)). Here, there is simply no

evidence in the record that the officers, in arresting Marable Jr., had as their primary

purpose some objective for which the legal process of arrest was not intended. Nor is

there evidence of a “definite act or threat not authorized by the process, or aimed at an

objective not legitimate in the use of process.” See Williams v. Fedor, 69 F. Supp. 2d

649, 673 (M.D. Pa. 1999). Instead, the record shows that officers arrived on the scene in



                                              15
response to a 9-1-1 call involving Marable Sr., and that Marable Jr. appeared only

subsequently. There is no dispute that Marable Jr. was yelling, and that the officers had

reason to believe that there was a gun in the house. Notwithstanding Marable Jr.’s

general allegations of the officers’ invidious motives, the record reflects that Marable Jr.

was arrested and charged with making terroristic threats and resisting arrest, and that in

exchange for a dismissal of the former charge, he ultimately pled nolo contendere to the

charge of resisting arrest, for which he was sentenced. Because “[t]here is no liability

where the defendant has done nothing more than carry out the process to its authorized

conclusion, even though with bad intentions,” Russoli v. Salisbury Twp., 126 F. Supp. 2d

821, 858 (E.D. Pa. 2000), we agree with the District Court that Marable Jr.’s abuse of

process claim fails.

       C.     Conspiracy

       Marable Jr. also contends that he brought a § 1983 conspiracy claim against all of

the individual police officer defendants. The Amended Complaint does not allege a claim

for conspiracy under § 1983, and therefore we must find that this argument is waived.

We note, however, that Marable Jr. alleged a count of conspiracy pursuant to 42 U.S.C. §

1985(3). To prove conspiracy under § 1985(3), a plaintiff must show “‘(1) a conspiracy;

(2) for the purpose of depriving, either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal privileges and immunities under

the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured



                                              16
in his person or property or deprived of any right or privilege of a citizen of the United

States.’” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006).

       Although Marable Jr. is correct that circumstantial evidence may suffice to

establish a civil rights conspiracy, see Hafner v. Brown, 983 F.2d 570, 577-78 (4th Cir.

1992), the record lacks even the necessary circumstantial evidence to survive summary

judgment. There is simply no evidence in the record of a conspiracy among the

defendants in this action. Nor has Marable Jr. proven the deprivation of a cognizable

right or privilege. Accordingly, we conclude that the District Court did not err in granting

summary judgment to the defendants with respect to Marable Jr.’s § 1985(3) claim.

       D.     Monell Liability

       Marable Jr. asserts a Monell claim against the municipal defendants as a result of

the police officers’ failure to adhere to the North Coventry Rules of Conduct regarding

the handling of juveniles. Although Marable Jr. has not provided this Court with a copy

of the applicable rules, this omission does not prevent our review of the legal merits of his

Monell claim. A municipality may incur liability under § 1983 only when its policy or

custom causes a particular constitutional violation. Monell, 436 U.S. at 694. When “a

municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate

indifference’ to the rights of its inhabitants,” such failure to train may itself constitute a

policy or custom that is actionable under § 1983. City of Canton, Ohio v. Harris, 489

U.S. 378, 389 (1989). However, when a single decision is the basis of the alleged



                                               17
constitutional violation, a municipality generally may incur Monell liability only where

the decisionmaker is a municipal “policymaker.” Pembaur v. City of Cincinnati, 475 U.S.

469, 481-82 (1986). Likewise, a mere showing that a particular officer violated policy, or

that better training would have enabled the officer to avoid the injury-causing conduct, is

insufficient to establish a municipality’s liability under § 1983 for failure to train.

Simmons v. City of Phila., 947 F.2d 1042, 1060 (3d Cir. 1991) (citing Harris, 489 U.S. at

390-91)). Governmental liability under § 1983 may not attach merely by operation of

respondeat superior. Monell, 436 U.S. at 691.

       We find that Marable Jr.’s Monell claim fails as a matter of law. As a threshold

matter, we note that any claim that Marable Jr. has brought on behalf of his children must

fail because his children have settled their claims against all of the municipal defendants.

We further note that a municipality may not incur Monell liability as a result of the

actions of its officers when its officers have inflicted no constitutional injury. Williams v.

Borough of West Chester, Pa., 891 F.2d 458, 467 (3d Cir. 1989). However, even if we

look to the substance of Marable Jr.’s argument, we find that at most, his appellate brief

demonstrates that there was a formal policy in place—the North Coventry Rules of

Conduct—and that on July 7, 2001, the police officers who detained Marable III and

Merrit did not adhere to the rules governing the handling of juveniles. This is insufficient

to establish a policy or custom of constitutional violations evidencing the municipal

defendants’ deliberate indifference to the rights of their inhabitants.



                                               18
       Marable Jr. has submitted newspaper articles detailing the November 2003

suspension of Charles Madonna, Upper Pottsgrove Township’s police chief, for allegedly

making racist remarks. Mr. Madonna, however, is not a defendant in this matter, and

there is no evidence that his remarks evidenced an official policy or custom. Nor is there

any evidence in the record of a pattern of mishandling of minors by the municipal

defendants. See Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (“Failure

to adequately screen or train municipal employees can ordinarily be considered deliberate

indifference only where the failure has caused a pattern of violations.”). Therefore, we

conclude that the District Court did not err in granting summary judgment to the

defendants on Marable Jr.’s Monell claim.




                                   III. CONCLUSION

       For the foregoing reasons, we find that the District Court did not err in granting

summary judgment for all defendants with respect to Marable Jr.’s § 1983 claim for false

arrest, his § 1983 and common-law claims for malicious prosecution, his § 1983 claim for

abuse of process, his § 1985 claim for conspiracy, and his Monell claim against the

municipal defendants. Accordingly, we will AFFIRM the District Court’s adjudication of

this matter in all respects.




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