                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-2079
                                  ___________

                           MARCUS L. WALLACE,

                                                   Appellant

                                        v.

                         MEDIA NEWS GROUP, INC.
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                     (D.C. Civil Action No. 1-12-cv-00872)
                  District Judge: Honorable Sylvia H. Rambo
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 June 12, 2014

         Before: CHAGARES , GARTH and SLOVITER, Circuit Judges

                          (Opinion filed: June 13, 2014)

                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Marcus W. Wallace appeals from the District Court’s dismissal of his complaint
against MediaNews Group, Inc. (“MNG”).1 We will affirm in part, vacate in part, and

remand for further proceedings.

                                             I.

       Wallace is a pretrial detainee awaiting trial on first-degree murder and other

charges in Franklin County, Pennsylvania, for allegedly bludgeoning his mother to death

in her home. Wallace’s charges have attracted a great deal of local media attention from

various sources, including a newspaper called the Chambersburg Public Opinion (“Public

Opinion”). The Public Opinion is owned by MNG, and it has published numerous

articles about Wallace’s case along with his mug shot.

       In a March 10, 2012 article titled “Water boy, you’re fired,” however, the Public

Opinion printed a picture of Wallace’s mug shot next to an article about a separate and

unrelated first-degree murder charge pending against Jeffrey Miles (the “Miles article”).

The article reports that Miles has been accused of stabbing a police informant to death

and dumping her body in the woods. The caption “Miles” appeared underneath

Wallace’s mug shot, and the article does not otherwise mention Wallace. The Public

Opinion published a correction the next day by printing Miles’s actual mug shot.

       Wallace filed suit pro se against MNG asserting a number of state-law claims on

the basis of the Miles article, including claims for defamation and “false light” invasion

of privacy. On MNG’s Rule 12(b)(6) motion, the District Court dismissed Wallace’s


1
 The District Court’s and this Court’s dockets refer to the defendant as “Media News
Group, Inc.,” while the defendant refers to itself as “MediaNews Group, Inc.”
                                             2
complaint with prejudice. The District Court later denied Wallace’s motion for

reconsideration, and Wallace appeals.2

                                             II.

       Our review of the dismissal of a complaint under Rule 12(b)(6) is plenary. See

Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 31-32 (3d Cir. 2011). “We accept as true

all well-pled factual allegations in the complaint and all reasonable inferences that can be

drawn from them, and we affirm the order of dismissal only if the pleading does not

plausibly suggest an entitlement to relief.” Id. at 32 (quotation marks omitted). We must

liberally construe Wallace’s pro se complaint, and we may consider the articles attached

to it. See id. Having conducted our review, we agree with the District Court’s dismissal

of most of Wallace’s claims largely for the reasons it explained. With respect to

Wallace’s claims for defamation and “false light” invasion of privacy, however, we will

vacate and remand for further proceedings. Our analysis will focus primarily on the

defamation claim.


2
  We have jurisdiction under 28 U.S.C. § 1291. The District Court did not expressly
address the basis for its jurisdiction, but it wrote that Wallace asserted his claims under
42 U.S.C. § 1983 and its docket identifies the source of its jurisdiction as “federal
question.” Wallace in fact has not asserted any federal claims, and he amended his
complaint to allege diversity of citizenship under 28 U.S.C. § 1332 on the ground that he
is a citizen of Pennsylvania and MNG is headquartered in Colorado. After we raised this
issue sua sponte, the parties agreed that the District Court had diversity jurisdiction and
MNG provided documentation, of which we may take judicial notice, that it is
incorporated in Delaware and headquartered in Colorado. Thus, we are satisfied that
Wallace and MNG are diverse and that the District Court had jurisdiction under § 1332.
See 28 U.S.C. § 1332(c)(1); Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 347
(3d Cir. 2013).
                                             3
       The elements of defamation under Pennsylvania law include (1) the defamatory

character of the communication, (2) its application to the plaintiff, and (3) the

understanding by the recipient of both its defamatory meaning and its application to the

plaintiff. See Graboff v. Colleran Firm, 744 F.3d 128, 135 (3d Cir. 2014) (citing, inter

alia, 42 Pa. Cons. Stat. § 8343(a)). The District Court did not decide the threshold issue

of whether the Miles article is capable of a defamatory meaning, and MNG has not

argued that point on appeal. Wallace argues that the Miles article is defamatory because

the placement of his photograph in the article implies that he has been charged with the

crimes that have been attributed to Miles instead. A false statement that a plaintiff has

been charged with a particular crime does appear capable of a defamatory meaning under

Pennsylvania law as a general matter. See Brown v. Phila. Tribune Co., 668 A.2d 159,

161 n.2, 163 (Pa. Super. Ct. 1995).

       The District Court nevertheless concluded that Wallace failed to state a claim for

defamation for two reasons. First, the District Court concluded that the Miles article

“cannot be reasonably construed or understood as intended to refer to Wallace” because,

although it includes Wallace’s photograph, its text refers exclusively to Miles and

identifies Miles by name and address. (ECF No. 28 at 7.) The District Court did not cite

any authority in support of this ruling, and we believe it premature to resolve this issue as

a matter of law at the pleading stage.

       The Pennsylvania Supreme Court has long held that “[t]he fact that the plaintiff is

not specifically named [in the publication] is not controlling. A party defamed need not
                                              4
be specifically named, if pointed to by description or circumstances tending to identify

him.” Schonek v. WJAC, Inc., 258 A.2d 504, 507 (Pa. 1969) (quotation marks omitted).

Neither the parties nor the District Court have cited, and we have not located, any

decisions applying Pennsylvania law to the placement of a plaintiff’s photograph in an

article regarding another person. We think it self-evident, however, that placement of a

plaintiff’s photograph in such an article could constitute a “description or circumstance

identifying” the plaintiff. Indeed, other jurisdictions—including the United States

Supreme Court in a diversity action—have so concluded under facts similar to those

alleged here. See Peck v. Tribune Co., 214 U.S. 185, 189 (1909) (holding that an

advertisement containing the plaintiff’s photograph captioned as one of a different

person, and containing only that different person’s name and address, was “of and

concerning” the plaintiff because “[m]any might recognize the plaintiff’s face without

knowing her name, and those who did know it might be led to infer that she had

sanctioned the publication under an alias”); see also Little Rock Newspapers, Inc. v.

Fitzhugh, 954 S.W.2d 914, 918-19 (Ark. 1997) (collecting similar cases and concluding

that use of plaintiff’s picture raised “a question of fact for the jury to resolve”). We

likewise decline to hold as a matter of law that no reasonable person could believe that

the Miles article applies to Wallace even though it contains Wallace’s photograph.3


3
 Neither MNG nor any of the decisions on which it relies acknowledge Peck or this line
of authority, and those decisions are unpersuasive for that reason and others. For
example, MNG relies on Woolf v. Scripps Publishing Co., 172 N.E. 389 (Ohio Ct. App.
1930), which reached the conclusion MNG urges under circumstances similar to those
                                              5
       Second, the District Court noted Wallace’s admission in a filing in his criminal

case that his reputation already has been damaged by media coverage of his own charges

(as discussed in note 7, infra) and concluded that “[o]n [sic] who by his own actions has

so badly damaged his reputation cannot be further injured by the allegedly false statement

on another matter.” (ECF No. 28 at 7.) This reasoning is problematic. In the first place,

Wallace stands accused of murder but has not been convicted. Unless he is convicted, it

is not fair to say that he has lowered his reputation “by his own actions.” In any event,

resolution of this issue too is premature at the pleading stage.

       In concluding otherwise, the District Court relied solely on one of its unpublished

opinions applying the so-called “libel-proof plaintiff” doctrine, which in turn cited our

decision in Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1078

(3d Cir. 1985). We see no indication that the Pennsylvania Supreme Court has adopted

the libel-proof plaintiff doctrine as a bar to liability, at the pleading stage or otherwise.

To the contrary, as we recognized in Marcone, the Pennsylvania Supreme Court appears

to treat the issue of a plaintiff’s already tarnished reputation as going to damages. See id.

at 1079 (holding that “we cannot say as a matter of law that [the plaintiff] was libel

proof” because “[e]vidence of a tarnished reputation is admissible and should be



alleged here. Five years later, however, the Ohio Court of Appeals for a different district
rejected Woolf and reached the opposite conclusion on the basis of Peck. See Petransky
v. Repository Printing Co., 200 N.E. 647, 647-48 (Ohio Ct. App. 1935) (reversing
dismissal of complaint where defendant published plaintiff’s photograph under a different
name in a newspaper article reporting that different person’s involvement in a crime).
We find Petransky more persuasive.
                                               6
considered as a factor to mitigate the level of compensatory damages”) (citing Corabi v.

Curtis Publ’g Co., 273 A.2d 899, 920 (Pa. 1971)).4

       MNG has not directly defended the District Court’s reasoning but has raised a

similar point by way of arguing that its publication of Wallace’s photograph in the Miles

article was not materially false. The falsity of an allegedly defamatory statement “‘must

go to the gist or sting of the defamation.’” Graboff, 744 F.3d at 136 (quoting Dunlap v.

Phila. Newspapers, Inc., 448 A.2d 6, 15 (Pa. Super. Ct. 1982)). “The test [for falsity] is

whether the alleged libel as published would have a different effect on the mind of the

reader from that which the pleaded truth would have produced.” Dunlap, 448 A.2d at 15

(quotation marks omitted). MNG argues that the only “sting” of the Miles article is the

implication that Wallace has been charged with first-degree murder, which he has. MNG


4
  In addition to these two points, the District Court wrote that MNG’s prompt correction
of the article “supports a conclusion that the article using Wallace’s mug shot was in
error and not done out of malice to Wallace.” (ECF No. 28 at 6.) The District Court did
not base its ruling on that point or otherwise explain its relevance. Actual malice is
required for liability only when the plaintiff is a public figure and the speech relates to
matters of public concern, and private figures may seek compensatory damages for
defamation under Pennsylvania law and the First Amendment on the basis of mere
negligence. See Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 923 A.2d 389,
399-400 (Pa. 2007) (citing, inter alia, Gertz v. Robert Welch, Inc., 418 U.S. 323, 343
(1974)); U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 923, 929 (3d
Cir. 1990). The District Court did not discuss whether Wallace is a public figure but, in
light of its reference to malice at the pleading stage, we directed the parties to brief that
issue. MNG has declined to do so because, inter alia, Wallace’s “status as a public figure
does not bear on any ground on which [MNG] moved to dismiss his claims.” (Appellee’s
Br. at 7 n.2.) We will thus not consider the issue further, though we note that, even if
MNG’s correction “supports a conclusion” that it did not act with malice, it does not
provide a basis for dismissing Wallace’s complaint at the pleading stage.

                                              7
further argues that publication of that truth could not produce a “different effect on the

mind of the reader” because Wallace himself, in a motion for a change of venue in his

criminal case, has admitted that his reputation already has been tarnished by prior press

coverage of his charges.5

       These arguments are not without some appeal, but we ultimately reject them at this

stage. Wallace’s complaint raises the reasonable inference that the “sting” of the Miles

article is more than the mere fact that he faces a charge of first-degree murder. Wallace’s

charges arise from the beating death of his own mother in her home. Many of the Public

Opinion articles about Wallace’s case that predated the Miles article mention multiple

inquiries into Wallace’s mental competence to stand trial, and one of them reports that a

psychiatric expert was “asked to provide an opinion as to whether Wallace was suffering

from any kind of mental condition . . . at the time of the crime that would have impaired

his ability to understand the nature of what he did and the difference between right and

wrong.” (ECF No. 1 at 50; 23-1 at 26.)6 The Miles article, by contrast, reports charges

of stabbing a police informant to death and dumping her body in the woods. The article

makes no reference to Miles’s mental health. Thus, as grave as the charges against

Wallace are, Wallace’s complaint suggests that reasonable members of the public could


5
 MNG also argues that the First Amendment requires that Wallace bear the burden of
proof on this issue, but it is not necessary to resolve that issue for purposes of this appeal.
6
 Wallace has since been involuntarily committed to a psychiatric facility, and his
criminal trial remains on hold. It appears that the Commonwealth recently withdrew its
Notice of Aggravating Circumstances, which it previously filed to seek the death penalty.
                                               8
reach materially different conclusions about such things as his culpability and danger to

society at large if they believe that he has been charged with committing the different

(and additional) murder attributed to Miles. For that reason, we decline to treat these two

alleged murders as interchangeable for reputational purposes at the pleading stage.

       The decisions on which MNG relies do not persuade us otherwise. In the most

analogous of those decisions, the plaintiff argued that a television series defamed him by

identifying him as a member of the Aryan Brotherhood gang because, inter alia, the same

television series notified its viewers that Aryan Brotherhood members must commit a

murder or attempted murder in order to be inducted. See Bustos v. A & E Television

Networks, 646 F.3d 762, 769 (10th Cir. 2011) (applying Colorado law). The court held

that the defamatory implication was not materially false because the plaintiff actually had

committed a gang-related murder in the past. See id. In that case, however, the allegedly

defamatory statement implied the commission only of a generic, unspecified murder and

not, as here, a specific murder that differs in various respects from the murder actually

charged.

       Moreover, Bustos was decided at the summary judgment stage, and the court

noted that, although summary judgment was appropriate, “deciding the materiality of a

falsehood often requires a jury” because “[w]hether a particular misstatement is likely to

injure the plaintiff’s reputation in the minds of a reasonable member of the community is

often best decided by reasonable members of the community.” Id. at 767. We of course

express no opinion on whether a trial might ultimately prove necessary in this case, but
                                             9
we think Wallace’s allegations in this regard sufficient to survive the pleading stage.7

       Two additional matters require discussion. First, given the similarity between

Wallace’s claim for defamation and his claim for “false light” invasion of privacy (which

similarity MNG emphasizes in its brief), we will remand for further proceedings on that

claim as well. See Graboff, 744 F.3d at 137 (“Clearly there is little difference between

[defamation and false light] claims in dealing with the consequences of a defendant’s

statements.”).8


7
  MNG relies heavily on the fact that Wallace sought a change of venue in his criminal
case on the ground that media coverage has caused prospective jurors in Franklin County
to form a fixed opinion of his guilt. The District Court too relied on that circumstance
and concluded that Wallace’s claimed injury in this case is “no different.” (ECF No. 28
at 7.) But there is a difference between arguing that press coverage has convinced
prospective jurors that Wallace is guilty of the crimes with which he actually has been
charged and arguing that a false report that he has been charged with a different murder
further diminishes his standing in the community. MNG’s argument may well prove
persuasive at a later stage of this litigation, but it is not dispositive at the pleading stage.
8
  The District Court (Judge Sylvia Rambo), in her memorandum opinion dated January
18, 2013, included a discussion of the tort claim under the heading “Publicity Placing
Person in False Light.” Under that discussion at pages 8 and 9 she stated as follows:

              The elements to be proven for this invasion of privacy
              claim are (1) publicity given to private facts (2) which
              would be highly offensive to a reasonable person;
              (3) which are not of legitimate concern to the public and
              (4) the actor had knowledge of or acted in reckless
              disregard as to the falsity of the publicized matter and
               the false light in which the other would be placed.
              Rush v. Philadelphia Newspapers, Inc., 199 Pa.
               Super. 141 (1999); Donnelly v. O’Malley, 2009 U.S. Dist.
              LEXIS 92289 (M.D. Pa. 2009); Larsen v. Philadelphia
               Newspapers, inc., 375 Pa. Super. 66 (1988) (all citations omitted).

              In this case, there was no publicity to private facts in
                                               10
       Second, after Wallace filed his opening brief on appeal, he filed a motion for

appointment of counsel in this Court on the basis of, inter alia, his involuntary

commitment. We will deny that motion in light of our disposition and because most of

the reasons why Wallace asserts he requires counsel (such as assistance with discovery

and trial) are not relevant on appeal. We note, however, that Wallace filed a motion for

appointment of counsel with the District Court along with his complaint and that the

District Court docket does not reflect a ruling on that motion. (ECF No. 2.) We express

no opinion on whether the appointment of counsel may be warranted in the District

Court, but the District Court may wish to consider that possibility, particularly in light of

concerns regarding Wallace’s mental competency. See Powell v. Symons, 680 F.3d 301,

306-08 & n.5 (3d Cir. 2012).

                                             III.

       For the foregoing reasons, we will vacate the District Court’s dismissal of

Wallace’s claims for defamation and “false light” invasion of privacy and remand for

further proceedings on those claims. We will otherwise affirm. Wallace’s motion for

leave to file a brief in support of his motion for appointment counsel and in support of his

appeal is granted. Wallace’s motion for appointment of counsel in this Court is denied.



              the Miles article regarding Wallace; the Miles article
              was of legitimate public concern, and there are no facts
              showing that the publication of Wallace’s mug shot in the
              Miles article was done with reckless disregard. As
              noted above, the following day, the error was corrected by
              Defendant. This claim also fails.
                                             11
