                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 13-1116
                                    _____________

                           CHRISTOPHER WASHINGTON,
                                         Appellant

                                           v.

             LEO HANSHAW; WILLIAM KANE; STEVEN O'CONNOR;
                      TOWNSHIP OF UPPER DARBY
                             ___________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. Civ. No. 2-11-cv-00254)
                         Magistrate Judge: Elizabeth T. Hey
                                    ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 24, 2013

         Before:   CHAGARES, VANASKIE, and SHWARTZ Circuit Judges.

                                (Filed : January 9, 2014)
                                      ___________

                                      OPINION
                                     ___________

VANASKIE, Circuit Judge.

      Christopher Washington appeals an order of the District Court entering judgment

on the pleadings against him and in favor of Upper Darby Township and three of its law

enforcement officers (collectively, “Appellees”). Although our reasoning differs
somewhat from that of the District Court, we will affirm because we agree that

Washington has failed to establish a violation of his constitutional rights that is actionable

under 42 U.S.C. § 1983, and Appellees were therefore entitled to judgment on the

pleadings.

                                              I.

       On February 23, 2005, Washington was stopped by police officers as he walked

along a street in Upper Darby Township, PA. Washington provided a false name,

birthday, and address to the police. Unable to confirm his identity, the officers arrested

Washington and brought him to the police station. On the way to the station, Washington

discarded several packets of crack cocaine in the back seat of the police vehicle, which

the officers subsequently recovered.

       Washington was charged with drug-related offenses and with false identification

to law enforcement. He moved to suppress the drug evidence, arguing that the police

lacked probable cause to arrest him and that the evidence was therefore fruit of the illegal

arrest. In the Affidavit of Probable Cause, the police officers indicated that they stopped

Washington because he fit the description of a robbery suspect known to be in the area at

that time. Washington disputes the information contained in the Affidavit of Probable

Cause, alleging that the police fabricated it after they discovered the drug evidence in the

back of the police vehicle. Appellees deny this allegation.

       The trial court denied Washington’s motion to suppress, and he was ultimately

convicted of all charges. He was sentenced to three to six years for possession with

intent to deliver narcotics. On appeal, the Superior Court of Pennsylvania reversed the

                                              2
trial court’s finding of probable cause and vacated Washington’s drug conviction. The

Superior Court also reversed Washington’s conviction for false identification.

       After his release, Washington filed this civil rights action alleging violations of his

Fourteenth Amendment procedural and substantive due process rights, which he asserts

“caused him to be wrongfully incarcerated for over 1,000 days.” (Appellant’s Br. 3.)

The Defendants moved for judgment on the pleadings. On December 12, 2012, the

District Court granted Defendants’ motion. Washington filed this timely appeal.1

                                                      II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3-4).

We have jurisdiction under 28 U.S.C. § 1291. Our review of a motion for judgment on

the pleadings is plenary. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir.

2005). Judgment will be entered on the pleadings if “the movant clearly establishes there

are no material issues of fact, and he is entitled to judgment as a matter of law.” Id. at

220. As with a motion to dismiss, we must view the facts presented in the pleadings in

the light most favorable to the nonmoving party. Id.

                                                      A.

       The Civil Rights Act of 1871, 42 U.S.C. § 1983, provides that “[e]very person

who, under color of [state law], subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured . . . .” To succeed in a § 1983 claim, a plaintiff must “prove two
       1
           Washington is no longer pursuing a claim against Upper Darby Township.


                                                       3
essential elements: (1) that the conduct complained of was committed by a person acting

under color of state law; and (2) that the conduct deprived the plaintiff of rights,

privileges, or immunities secured by the Constitution or laws of the United States.”

Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011). It is undisputed that the officers

acted under color of state law; thus, only the second element – whether Washington was

deprived of any constitutional right – is relevant here.

       Section 1983 does not confer any substantive rights. Rather, it “merely provides a

method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S.

266, 271 (1994) (internal quotations and citations omitted). Thus, “[t]he first step in any

such claim is to identify the specific constitutional right allegedly infringed.” Id.

       Washington initially characterized this action as a claim of malicious prosecution.

He later withdrew that claim, however, because his admitted guilt precluded him from

establishing a malicious prosecution. In addition, Washington concedes that, “although

he was falsely arrested, he was unable to allege that constitutional violation because it

was time-barred.” (Appellant’s Br. 17.) He nevertheless contends that the Fourteenth

Amendment should afford him some relief. He therefore asserts seven proposed causes

of action, which he characterizes as “[a] virtual cornucopia of constitutional torts.”

(Appellant’s Br. 24.) Each proposed cause of action is grounded in the Fourteenth

Amendment of the United States Constitution: “(1) violation of procedural due process,

(2) right to substantive due process, (3) denial of right of access to court, (4) deprivation

of right to liberty, (5) wrongful prosecution, (6) wrongful conviction, and (7) wrongful

incarceration.” (Appellant’s Br. 22-23.) We will address each in turn.

                                              4
                              1. Substantive and Procedural Due Process

        Mindful that “[w]e are . . . required by the ‘[t]he doctrine of judicial self-restraint .

. . to exercise the utmost care whenever we are asked to break new ground in [the] field’

of substantive due process,” Albright, 510 U.S. at 287 (Souter, J., concurring in

judgment) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)), we first

address Washington’s claim that the Defendants violated his substantive due process

rights. Reviewing his factual allegations, Washington’s claims appear to be twofold:

first, he asserts that Defendants violated his rights by arresting him without probable

cause, and, second, that they violated his rights by “fabricating the circumstances

pertaining to why they stopped him” in their reports and in the Affidavit of Probable

Cause. (Appellant’s Br. 21.) Absent these alleged violations, Washington argues that

either the Commonwealth would never have prosecuted him, or evidence of the drugs

would have been suppressed at the pretrial hearing and he would not have been tried or

convicted. The damages he claims arise out of his “loss of liberty” during his post-arrest

and post-conviction incarceration.2 (Appellant’s Br. 23.)

        The problem for Washington’s due process claim is that he fails to establish a

nexus between the police conduct he alleges and the constitutional provision he claims

that conduct violated. Washington’s claim is akin to a claim asserting “a substantive

right under the Due Process Clause of the Fourteenth Amendment to be free from

criminal prosecution except upon probable cause.” Albright, 510 U.S. at 268. The

        2
          Following his arrest by Defendants, Washington was incarcerated for more than 1,000 days. He
concedes, however, that “[o]f those days, 330 were due to a detainer which was lodged against him due to a prior
conviction; [and] about 680 days were solely due to his conviction.” (Appellant’s Br. 27.)


                                                         5
Supreme Court has made clear, however, that such a right does not sound in substantive

due process. Id. at 275. Rather, the Court has held that, if a right to be free from

prosecution absent probable cause exists, it must instead be grounded on the Fourth

Amendment’s prohibition on unreasonable searches and seizures. Id. at 273 (“Where a

particular Amendment ‘provides an explicit textual source of constitutional protection’

against a particular sort of government behavior, ‘that Amendment, not the more

generalized notion of “substantive due process,” must be the guide for analyzing these

claims.’”) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Accordingly, to the

extent Washington’s substantive due process claim is predicated on damages resulting

from an unconstitutional seizure, that claim is clearly foreclosed by Albright.

       Furthermore, our precedents are clear that § 1983 plaintiffs alleging arrest and

prosecution absent probable cause may bring malicious prosecution claims under the

Fourth Amendment, but are entitled to relief only if they are innocent of the crime for

which they were prosecuted. Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000). In

Hector, we specifically held that a party seeking damages under § 1983 for malicious

prosecution could not “recover the litigation expenses incurred because police officers

discovered criminal conduct during an unconstitutional search.” Id. at 157. At the core

of our holding in Hector was the principle that “[t]he evil of an unreasonable search or

seizure is that it invades privacy, not that it uncovers crime, which is no evil at all.” Id.

(quoting Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999)). Quoting the

U.S. Court of Appeals for the Second Circuit, we concluded that “[v]ictims of

unreasonable searches or seizures may recover damages directly related to the invasion of

                                               6
their privacy—including (where appropriate) damages for physical injury, property

damage, injury to reputation, etc.; but such victims cannot be compensated for injuries

that result from the discovery of incriminating evidence and consequent criminal

prosecution.” Id. (quoting Townes, 176 F.3d at 148).

       We believe our reasoning in Hector compels the result here, notwithstanding

Washington’s reliance on the Fourteenth rather than the Fourth Amendment. The

conduct and the harm Washington alleges are the same types as those asserted in Hector:

the police discovered incriminating evidence in the course of a search later determined to

be unconstitutional. See Hector, 235 F.3d at 155. Washington cannot escape Hector’s

strictures by renaming his cause of action something other than malicious prosecution, or

by attempting to ground it in the Fourteenth Amendment despite the fact that the Fourth

Amendment “provides an explicit textual source of [such] constitutional protection.” See

Graham, 490 U.S. at 395.

       Washington also argues that he is entitled to relief based upon Defendants’ alleged

fabrication of evidence of probable cause. For support, he cites Laughman v.

Pennsylvania, No. 1:05-CV-1033, 2007 WL 2345295, at *8 (M.D. Pa. Aug. 16, 2007), an

unpublished opinion of the Middle District of Pennsylvania which concluded that a

plaintiff later found to be innocent of the crime for which he was convicted had

established a genuine issue of material fact as to whether police fabrication violated

substantive due process. Id. at *8. Importantly, Laughman’s facts differ significantly

from the facts alleged here because the plaintiff in Laughman was innocent of the crime

of conviction. In contrast, even viewing the facts in the light most favorable to

                                             7
Washington, as we must at this stage, see Sikirica, 416 F.3d at 219, Washington has not

alleged that the police fabricated evidence of his guilt. Rather, his claim asserts only that

the police fabricated evidence to establish probable cause for his arrest. We therefore

conclude that Washington’s incarceration for a crime he admits he committed did not

deprive him of any liberty interest protected by the substantive due process clause.

         We also conclude that Washington has not established a procedural due process

violation. Although procedural due process may be a proper basis for a § 1983 claim,3

Washington’s brief merely recites the elements of a procedural due process claim without

explaining what process he was owed and how that process was denied. Thus, he has

failed to carry his burden of demonstrating that Defendant’s conduct deprived him of any

constitutionally-protected procedural due process right. See Groman v. Twp. of

Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (noting that plaintiff bears the burden of

proof on essential elements of § 1983 claims).

                                      2. Right of Access to the Court

         Washington also argues that Defendants violated his due process right of access to

the court. We have held that “[c]over-ups that prevent a person who has been wronged

from vindicating his rights violate the right of access to the courts protected by the

substantive due process clause.” Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir.


         3
           The Supreme Court did not address the procedural due process implications of a prosecution absent
probable cause in Albright because the petitioner did not raise a procedural due process claim. Albright, 510 U.S. at
271. Our cases interpreting Albright have suggested that § 1983 malicious prosecution claims may be predicated on
constitutional provisions other than the Fourth Amendment, such as procedural due process. See Torres v.
McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998) (“[A] section 1983 malicious prosecution claim may . . . include
police conduct that violates the Fourth Amendment, the procedural due process clause or other explicit text of the
Constitution.”).


                                                          8
2003). We explained in Marasco, however, that only “conduct that either prevents a

plaintiff from filing suit or renders the plaintiff’s access to the court ineffective or

meaningless constitutes a constitutional violation.” Id. Here, Washington has not alleged

any evidence of a police cover-up that prevented him from vindicating his rights. In

contrast, Washington was able to challenge his seizure in a pretrial suppression hearing as

well as on appeal, where he was ultimately successful. We therefore affirm the District

Court’s grant of judgment on the pleadings as to Washington’s claim that he was denied

his right of access to the courts.

                                     3. Remaining Claims

       Each of Washington’s final four claims—“deprivation of right to liberty”;

“wrongful prosecution”; “wrongful conviction”; and “wrongful incarceration”— lack

merit. We are not aware of, and Washington has failed to raise, any case of any court

recognizing these causes of action. We therefore agree with the District Court that

Defendants are entitled to judgment on the pleadings on these claims.

                                               B.

       The parties address three remaining issues: first, they dispute the proper accrual

date for Washington’s proposed claims; second, they dispute whether Defendants waived

their statute of limitations defense, which served as part of the basis for their motion for

judgment on the pleadings; and, third, they dispute whether Defendants are entitled to

qualified immunity. We need not address any of these issues at length.

       Having concluded that Washington fails to allege a viable violation of his

constitutional rights, any argument over when his proposed claims should accrue is

                                               9
rendered moot. Similarly, we need not decide whether Appellees waived a statute of

limitation defense because we do not affirm the grant of summary judgment on the basis

that Washington’s proposed claims are time-barred. Finally, because we conclude that

Washington’s claims do not make out a constitutional violation, we need not address

questions of qualified immunity. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.

1997) (noting that a defendant must demonstrate that he is entitled to qualified immunity

“[o]nly if the plaintiff carries [the] initial burden” of proving a violation of a clearly

established constitutional right).

                                              III.

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




                                               10
