                                                     NOT PRECEDENTIAL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

                                       No. 16-1338
                                      _____________

                                 RACHAEL BOSEMAN,

                                               Appellant

                                              v.

                          UPPER PROVIDENCE TOWNSHIP;
                          P/O PATRICK REYNOLDS, No. 7723
                                  _______________

                       On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                   (D.C. No. 2-15-cv-2332)
           District Judges: Hon. C. Darnell Jones, II, Hon. Ronald L. Buckwalter
                                      _______________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 13, 2017

       Before: SMITH, Chief Judge, JORDAN, and SHWARTZ, Circuit Judges.

                                 (Filed: February 27, 2017)
                                     _______________

                                        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.

       Rachel Boseman was arrested for driving under the influence of alcohol but was

acquitted at trial. She then brought a civil rights action against the arresting police

officer, Patrick Reynolds, and the municipality he works for, Pennsylvania’s Upper

Providence Township. The District Court granted the defendants’ motion to dismiss and

Boseman now appeals. We will affirm in part and vacate and remand in part.

I.     Background1

       On April 11, 2014, just before 9:00 p.m., Boseman left her job as a financial

consultant in Chadds Ford, Pennsylvania. She stopped at a Sunoco gas station across

from her office and conducted a transaction at 9:03 pm. She then drove approximately

twelve miles north on Route 1. Reynolds pulled her over around 9:25 pm, after she

entered Upper Providence Township. She had not consumed any alcohol that day and

had no criminal record.

       In his police report, Reynolds said that he “detected a strong odor of alcohol

emanating from within the vehicle” and that Boseman had “glassy and blood-shot eyes”

and a “red face, blank stare, and slurred speech.” (JA 47-48 at ¶ 11.) The report also




       1
         As we are reviewing a motion to dismiss, we must “accept as true all allegations
in the complaint and all reasonable inferences that can be drawn from them after
construing them in the light most favorable to the nonmovant.” Connelly v. Lane Constr.
Corp., 809 F.3d 780, 786 n.2 (3d Cir. 2016) (quoting Foglia v. Renal Ventures Mgmt.,
LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014)).

                                              2
indicated that Boseman failed a field sobriety test. Boseman denies that any of those

assertions are true, except that she may have had a red face.2

       Reynolds arrested her and she was charged with driving under the influence of

alcohol. At trial, Reynolds testified that when Boseman was in his police car he

attempted to read her the so-called O’Connell warnings, which describe individuals’

rights related to blood testing when there is a suspicion of driving under the influence.3

Boseman denies that she was given the warnings in the vehicle. Once at the police

station, Reynolds gave Boseman a written copy of the O’Connell warnings. Before she

was able to review the warnings, Reynolds took the paper away and announced that

Boseman had refused the blood test. Boseman agreed to go to the hospital for a blood

test, but Reynolds would not let her do so.

       Boseman’s bail was set at $5,000, unsecured, and she was released. She rejected

an offer from the prosecution to proceed by Accelerated Rehabilitative Disposition, a pre-

trial intervention program for non-violent offenders. She instead went to trial and was

found not guilty. Nevertheless, the Pennsylvania Department of Transportation sought to



       2
         Boseman states in her Complaint that she “may have had a red face because she
has a skin condition which gives her a rosy complexion, particularly when she is in a
stressful situation.” (JA 48 at ¶ 13 n.1.)
       3
         The warnings an officer is required to give prior to obtaining a blood test for
alcohol are named after the case Commonwealth Dep’t of Transp., Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873 (Pa. 1989). In her Complaint, Boseman states that
“Defendant Reynolds testified at trial that he attempted to read the O’Connell Warnings
to Plaintiff in the police car, which Plaintiff denies.” (JA 48 at ¶ 18.) It is not clear what
Reynolds meant when he said he “attempted” to read the warnings.


                                              3
suspend her license because of her alleged refusal to take a blood test. Boseman alleges

that “[d]ue to her arrest and conditions of bail” she faced additional hardships. (JA 49 at

¶ 25.) Her “ability to travel was restricted and she was required to appear in court on

multiple occasions.” Id. She lists six dates on which she was required to attend court.

       Boseman says that Reynolds “has a history of making boilerplate allegations

against DUI suspects.” (JA 49 at ¶ 26.) Her Complaint lists twenty-two instances of

Reynolds alleging one or more of the following in his police reports: a strong odor of

alcohol; glassy eyes; slurred speech; a flushed face; a staggered gait; and using a vehicle

to keep balance. In two of the incidents cited, the arrestees filed complaints against

Reynolds with the Police Department.

       In a five-count Complaint against Reynolds and Upper Providence Township,

Boseman made count one a claim under 42 U.S.C. § 1983 against Reynolds alone. It

alleges violations of five different constitutional rights. Count two is brought under

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

Upper Providence Township for failure to train, supervise, investigate, or discipline its

employees. Counts three, four, and five are Pennsylvania state law claims against

Reynolds.

       The District Court dismissed the Complaint without prejudice and, in its order,

stated that Boseman had twenty days to amend her Complaint to cure any deficiencies.

She did not amend but filed this appeal instead.4 She appeals the dismissal of all of the


       4
          The District Court’s order provided that “Plaintiff has twenty (20) days in which
to file an Amended Complaint.” (JA 3.) Because Boseman did not file an Amended
                                             4
counts, but, as to the first count, she only addresses the dismissal of two of the five

constitutional violations.5

II.    Discussion6

        “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Black v.

Montgomery Cty., 835 F.3d 358, 364 (3d Cir. 2016), as amended (Sept. 16, 2016),

petition for cert. filed, No. 16-846 (U.S. December 28, 2016) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). We will reject “legal conclusions and recitals of the elements

of a cause of action supported by mere conclusory statements.” Connelly, 809 F.3d at

786 n.2 (citing Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010)).

Complaint, the order is a final judgment for jurisdictional purposes. See Hoffman v.
Nordic Nats., Inc., 837 F.3d 272, 279 (3d Cir. 2016) (“[W]e have held that a plaintiff can
convert a dismissal without prejudice into a final order by ‘declar[ing] his intention to
stand on his complaint.’” (second alternation in original) (quoting Borelli v. City of
Reading, 532 F.2d 950, 951–52 (3d Cir. 1976))). “By opting to not amend [her]
complaint … [Boseman] elected to stand on [her] complaint … .” Id. (internal quotes
omitted).
       5
          The two that she appeals are, as more fully set forth herein, a malicious
prosecution claim and a fabrication of evidence claim. The other three constitutional
violations alleged in the Complaint were denial of the right to a fair trial; loss of physical
liberty; and loss of property. She also appeals the District Court’s grant of the
defendants’ motion to strike certain paragraphs of the Complaint.
       6
        The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C.
§ 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the District
Court’s decision to grant a motion to dismiss under a plenary standard.” Connelly v.
Lane Constr. Corp., 809 F.3d 780, 786 n.2 (3d Cir. 2016) (citing Fowler v. UPMC
Shadyside, 578 F.3d 203, 206 (3d Cir. 2009)).
                                               5
       A.     Section 1983 Claims

       A plaintiff seeking monetary damages under 42 U.S.C. § 1983 “must demonstrate

that the defendants, acting under color of law, violated the plaintiff’s federal

constitutional or statutory rights, and thereby caused the complained of injury.” Black,

835 F.3d at 364 (quotation omitted). Boseman alleges that Reynolds violated her Fourth

and Fourteenth Amendment rights. We consider each of those claims in turn.

              1.     Fourth Amendment Malicious Prosecution Claim

       Boseman asserts a malicious prosecution claim under the Fourth Amendment.

That claim requires proof of five elements:

       (1) the defendant initiated a criminal proceeding; (2) the criminal
       proceeding ended in [the plaintiff’s] favor; (3) the defendant initiated the
       proceeding without probable cause; (4) the defendant 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.

Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014) (alteration in original). The only

prong that Boseman and Reynolds see eye to eye on is the second – they agree, as the

historical record dictates, that Boseman was acquitted at her criminal trial. The District

Court found that Boseman’s complaint was deficient with respect to prongs one, three,

and five.

       We will assume that Boseman satisfied the first prong, which requires that

Reynolds “initiated” the criminal proceeding against her. Reynolds was the arresting

officer and the only inculpatory witness at Boseman’s criminal trial. Presumably, but for

Reynolds’ arrest and report, Boseman would not have been charged. See id. at 297 (“It is


                                              6
settled law that officers who conceal and misrepresent material facts to the district

attorney are not insulated from a § 1983 claim for malicious prosecution … [i]f the

officers influenced or participated in the decision to institute criminal proceedings, they

can be liable for malicious prosecution.” (internal citation omitted)).

       As to the third prong, we recognize that it is disputed whether or not the arrest was

made with probable cause, and that “[g]enerally, the question of probable cause in a

section 1983 damage suit is one for the jury.”7 Merkle v. Upper Dublin Sch. Dist., 211

F.3d 782, 788 (3d Cir. 2000) (citation omitted). Regardless of the existence of probable

cause, we will affirm the dismissal of the claim because Boseman failed to plead any

allegations with respect to the fourth prong of the test: a showing that the defendant

“acted maliciously or for a purpose other than bringing the plaintiff to justice.” Halsey,

750 F.3d at 297. Indeed, the District Court explicitly noted that the parties did not




       7
         “Probable 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 the person to be arrested.”
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (quoting Orsatti v.
N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). Reynolds described in his police
report to support probable cause that he “detected a strong odor of alcohol emanating
from within the vehicle,” that Boseman had “glassy and blood-shot eyes … a blank stare,
and slurred speech” and that she failed a field sobriety test. (JA 47-48 at ¶¶ 11, 12.)
Boseman denies these allegations and states that she did not drink alcohol that day.
        Boseman points to the fact that she was acquitted at her subsequent trial and that
Reynolds has used similar or identical statements of probable cause in other DUI cases.
Although not dispositive, these facts suggest that Boseman has pleaded enough to survive
a motion to dismiss on this question. But see Halsey, 750 F.3d at 299 (“It is therefore
irrelevant in a probable cause inquiry whether a person is later acquitted of the crime for
which she or he was arrested.” (internal quotation omitted)).

                                              7
address this element.8 In her Complaint, Boseman provides only a conclusory allegation

that Reynolds “acted with malice and furthered the prosecution of Plaintiff by providing

false information, and/or withheld truthful information … .” (JA 111.) This

“[t]hreadbare recital[]” of an element of the cause of action cannot withstand a motion to

dismiss. Iqbal, 556 U.S. at 678. Because Boseman did not plead anything but a

conclusory allegation of malice, we will affirm the dismissal of the Fourth Amendment

claim.9

              2.     Fourteenth Amendment Fabrication of Evidence Claim

       Boseman’s second claim under 42 U.S.C. § 1983 invokes the Fourteenth

Amendment and is for the use of fabricated evidence. In Halsey v. Pfeiffer, we held that

       8
         Boseman argues that the defendants waived their challenge to her Complaint on
the malice element because they failed to raise the issue before the District Court. We
have explained that “[t]he waiver rule serves two purposes: ensuring that the necessary
evidentiary development occurs in the trial court, and preventing surprise to the parties
when a case is decided on some basis on which they have not presented argument.”
Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 835 (3d Cir. 2011). Where, as here, a
dispositive decision was made at the motion to dismiss stage, the first purpose is not
served because the evidence was not in dispute. Id. at 834-35 (noting that the waiver rule
applied with less force to an appeal from a ruling on a Rule 12(b)(6) motion because
evidence is irrelevant to a Rule 12(b)(6) motion and the only issue is a purely legal
question about whether a claim states a cause of action); see also Thompson v. Real
Estate Mortg. Network, 748 F.3d 142, 150 n.7 (3d Cir. 2014) (declining to apply the
waiver rule to an appeal from a Rule 12(b)(6) dismissal, and noting that it would be
“extremely unlikely that our de novo analysis would be materially affected if that
question had been presented squarely at an earlier juncture”). As to the second purpose,
Boseman has not stated that she was surprised by the need to show that she sufficiently
alleged an element of her claim. Accordingly, we will not deem the argument regarding
malice to be waived.
       9
         We need not reach the question of whether Boseman suffered a “deprivation of
her liberty” within the meaning of the Fourth Amendment sufficient to establish the fifth
prong of the test, Halsey, 750 F.3d at 297, because failure to meet prong four is
dispositive.
                                            8
such a claim is cognizable “if a defendant has been convicted at a trial at which the

prosecution has used fabricated evidence.” 750 F.3d at 294. In Black v. Montgomery

County, we reasoned that an acquitted defendant can also bring such a claim if “there is a

reasonable likelihood that, absent that fabricated evidence, the defendant would not have

been criminally charged.” 835 F.3d at 371.

       We cautioned in Black, however, that there are “hurdles facing a plaintiff alleging

a due process violation for fabrication of evidence.” Id. at 372. A plaintiff must

demonstrate a “meaningful connection” between the injury and the use of the fabricated

evidence. Id. (quoting Halsey, 750 F.3d at 294 n.19). There is also a requirement that

the evidence be “so significant that it could have affected the outcome of the criminal

case.” Id. (quoting Halsey, 750 F.3d at 295). And, the standard required to demonstrate

that evidence is fabricated is a “notable bar.” Id. As an example, “testimony that is

incorrect or simply disputed should not be treated as fabricated merely because it turns

out to have been wrong.” Id. (quoting Halsey, 750 F.3d at 295). Lastly, because we

require “persuasive evidence supporting a conclusion that the proponents of the evidence

are aware that evidence is incorrect or that the evidence is offered in bad faith,” id.

(quoting Halsey, 750 F.3d at 295), we would look for allegations describing such

evidence in a pleading designed to survive a motion to dismiss. Given those hurdles, we

re-emphasized in Black that “we expect that it will be an unusual case in which a police

officer cannot obtain a summary judgment in a civil action charging him with having




                                              9
fabricated evidence used in an earlier criminal case.” Id. (quoting Halsey, 750 F.3d at

295).10

          Boseman’s conclusory allegations do not meet the standards we have set for a

fabrication-of-evidence claim. She has not sufficiently demonstrated that the evidence

against her was fabricated. She merely “denies” the conclusions Reynolds made in his

police report. But our case law is clear that “testimony that is … simply disputed should

not be treated as fabricated … .” Black, 835 F.3d at 372 (quoting Halsey, 750 F.3d at

295). As Reynolds points out, both Black and Halsey involved serious instances of

evidence fabrication, quite distinct from the dispute here, in which even Boseman

acknowledges that her face may have been red. See Black, 835 F.3d at 362-63 (involving

significant fabrication and material omission of evidence in an arson prosecution);

Halsey, 750 F.3d at 278 (involving a coerced false confession that resulted in what we

described as one of the “worse miscarriage[s] of justice” we had ever seen). If we were

to hold that the “he said, she said” dispute here rises to the level of fabricated evidence,

we would undermine the “unusual case” standard dictated by our precedent, which

directs concern to cases in which there is actual evidence of fabrication.11 See also


          10
          We recognize, as we did in Black and Halsey, that the barriers are particularly
challenging in the summary judgment posture where a plaintiff must demonstrate a
genuine dispute of material fact. This does not mean, however, that all cases will survive
a motion to dismiss. Where, as here, only conclusory allegations regarding the contents
of a police report are pled, the claim will not survive.

         Maintaining a high bar for fabrication-of-evidence claims is essential, see
          11

Halsey, 750 F.3d at 295 (recognizing that our reasoning should not be used “beyond the
scope of our holding”), to prevent “the prospect of suit” from “caus[ing] a deflection of
the prosecutor’s [and police officer’s] energies from his public duties.” Whitlock v.
                                              10
Whitlock v. Brueggemann, 682 F.3d 567, 586 (7th Cir. 2012) (recognizing that successful

fabrication of evidence claims will (hopefully) be “exceedingly rare”). Accordingly, we

will affirm the dismissal of the Fourteenth Amendment claim.

       B.     Monell Claim

       Boseman alleges that Upper Providence Township “has encouraged, tolerated,

ratified and has been deliberately indifferent” to a number of unconstitutional “patterns,

practices, and customs.” (JA 56 at ¶ 43.) This has, according to Boseman, resulted in

systemic constitutional violations, including unlawful detentions and arrests, fabrications

of evidence, malicious prosecutions, and disciplinary failures.

       “A municipality may be held liable if a constitutional violation was caused by

action taken pursuant to a municipal policy or custom.” Brown v. Commonwealth of Pa.

Dep’t of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003)

(citing Monell, 436 U.S. at 691). But the most regrettable policies or customs are

irrelevant unless there has actually been a violation of the plaintiff’s constitutional rights.

Id. (citing Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992)). We have

determined that Boseman did not adequately allege a violation of her constitutional rights

and therefore we must also affirm the District Court’s dismissal of the Monell claims

against Upper Providence Township.12



Brueggemann, 682 F.3d 567, 586 (7th Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S.
409, 423 (1976)).
       12
         The District Court granted the defendants’ motion to strike paragraphs 26
through 31 of the Complaint. These paragraphs “allege[] that Reynolds used boilerplate
allegations against DUI defendants” (Opening Br. at 31) and list examples of such
                                              11
        C.    State Law Claims

        Boseman brought three Pennsylvania state law claims against Reynolds: malicious

prosecution, false imprisonment, and assault and battery. The District Court dismissed

each.

              1.     Malicious Prosecution

        The tort of malicious prosecution under Pennsylvania law requires a showing of

malice. See Kelley v. Gen. Teamsters, Chauffeurs & Helpers, Local Union 249, 544 A.2d

940, 941 (Pa. 1988) (“A cause of action for malicious prosecution has three elements.

The defendant must have instituted proceedings against the plaintiff 1) without probable

cause, 2) with malice, and 3) the proceedings must have terminated in favor of the

plaintiff.”) (citation omitted). In Pennsylvania, “[m]alice may be inferred from the

absence of probable cause,” In re Larsen, 616 A.2d 529, 587 (Pa. 1992), but to survive a


instances. The defendants argued that “in every one of the referenced criminal cases …
the disposition was either (a) guilty after trial; (b) a guilty plea[;] or (c) acceptance into
the accelerated rehabilitative disposition program” and provided docket reports for the
cases where available. (JA 37.) The District Court concluded that the paragraphs were
“immaterial and confuse the issues in the litigation” and thus granted the defendants’
motion under Federal Rule of Civil Procedure 12(f). (JA 40.) Boseman argues that
“boilerplate allegations made by Reynolds are evidence of a lack of training and
supervision … [and] should be an issue for discovery regarding the Monell claims.”
(Opening Br. at 32.)
        Because the Monell claims cannot stand, the stricken paragraphs are immaterial,
and the District Court did not abuse its discretion in granting the motion to strike. Cf.
Meditz v. City of Newark, 658 F.3d 364, 367 n.1 (3d Cir. 2011) (“A district court abuses
its discretion [in granting a motion to strike] if its decision rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper application of law to fact.”)
(quoting Johnston v. HBO Film Mgmt. Inc., 265 F.3d 178, 183 (3d Cir. 2001));
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (“We review the
district court's decision to strike matter pursuant to Federal Rule of Civil Procedure 12(f)
for abuse of discretion.”).
                                              12
motion to dismiss, a complaint must still provide more than conclusory allegations. As

stated above, Boseman provides only a conclusory statement that Reynolds’s actions

were malicious. (JA 111.) Therefore, we will also affirm the dismissal of this claim.

See, e.g., Felker v. Christine, 796 F. Supp. 135, 142 (M.D. Pa.), aff'd, 983 F.2d 1050 (3d

Cir. 1992) (“A showing of malice … requires more than mere conclusory allegations; it

cannot be asserted without corroborating factual specificity.”).

              2.     False Imprisonment

       “A police officer may be held liable for … false imprisonment when … he did not

have probable cause to make an arrest.” Renk v. City of Pittsburgh, 641 A.2d 289, 293

(Pa. 1994). Under Pennsylvania law, probable cause is present “when ‘the facts and

circumstances which are within the knowledge of the police officer at the time of the

arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a

man of reasonable caution in the belief that the suspect has committed or is committing a

crime.’” Id. (quoting Commonwealth v. Rodriguez, 585 A.2d 988, 990 (Pa. 1991)).

Unlike federal courts, Pennsylvania courts generally conceive of probable cause as a

question of law. See Kelley, 544 A.2d at 941 (“Usually, the existence of probable cause

is a question of law for the court rather than a jury question … .”). Still, the question

“may be submitted to the jury when facts material to the issue of probable cause are in

controversy.” Id. Because the facts surrounding the probable cause determination are in

dispute here, see supra n.7, we will vacate the dismissal of this claim and remand to the




                                             13
District Court to either exercise supplemental jurisdiction over this claim or to dismiss it

without prejudice so that Boseman can pursue it in state court.13

              3.     Assault and Battery

       We will also vacate the District Court’s dismissal of the assault and battery claim.

“In making a lawful arrest … [t]he reasonableness of the force used in making the arrest

determines whether the police officer’s conduct constitutes an assault and battery.” Renk,

641 A.2d at 293 (emphasis added). Boseman argues that, because the arrest was made

without probable cause, it was unlawful. We agree that a jury could conclude that an

arrest made without probable was unlawful, and therefore an assault and battery. See

Renk, 641 A.2d at 293-94 (“It is conceivable that a jury could find a police officer liable

for [assault and battery] under circumstances which demonstrate that the officer … did

not deliberately arrest a person knowing that he lacked probable cause to do so.”). We

will thus also vacate and remand the assault and battery claim to the District Court with

the same instructions as pertain to the false imprisonment claim.

III.   Conclusion

       For the foregoing reasons, we will affirm in part and vacate and remand in part.

       13
         Of course, statute of limitations concerns may play a role in deciding whether
the case should be kept or dismissed without prejudice. The defendants believe that
Boseman conceded probable cause when she waived her preliminary hearing in state
court. Whether waiving the hearing amounts to a concession that there was probable
cause is a matter we leave for the District Court to consider in the first instance, if it
chooses to keep the case. We note, however, that, even when a probable cause
determination has been made, Pennsylvania law does not appear to treat that
determination as definitive in a subsequent civil suit. Cosmas v. Bloomingdales Bros.,
660 A.2d 83, 86-87 (Pa. Super. Ct. 1995) (holding that a finding of probable cause at a
preliminary hearing may be evidence of probable cause in a subsequent suit, but it is not
conclusive).
                                             14
