BLD-104 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-2784 ___________

WESLEY A. MASSEY, Appellant

v.

TODD PFEIFER; KEVIN FORCIER; CRAIG HOWE; ANDREW NATALE; RITA MARWOOD ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1-17-cv-00173) District Judge: Honorable Susan Paradise Baxter ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 30, 2020

Before: AMBRO, GREENAWAY, Jr., and BIBAS, Circuit Judges

(Opinion filed: February 26, 2020) _________

OPINION* _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Wesley Massey appeals from an order of the United States District Court for the

Western District of Pennsylvania, which dismissed his civil rights complaint. Because no

substantial question is raised by the appeal, we will summarily affirm the District Court’s

judgment.

Massey filed his complaint as a pretrial detainee against five defendants, claiming

violations of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments of

the United States Constitution. He alleged “malicious abuse of process,” “malicious use

of process,” “willful misconduct,” “false imprisonment,” and “false arrest” relating to the

state prosecution for his misuse of an employer-issued credit card. He requested millions

of dollars in damages. He separately filed a motion for an injunction or a temporary

restraining order barring his prosecution and a preliminary monetary award of $300,000

to compensate for lost wages and lost business.

The District Court, screening the complaint under

(e), dismissed

the claims against two Crawford County Assistant District Attorneys and the Magistrate

District Judge who was presiding over Massey’s criminal case, determining that they

were immune from suit. The District Court also separately denied Massey’s motion for

preliminary injunctive relief. At that time, the District Court sua sponte stayed and

administratively closed the action pending the resolution of Massey’s criminal

proceedings. The District Court ruled that Massey could move to reopen the action “if

2 and when [his] criminal charges are dismissed or resolved in his favor,” Memorandum

Order of Oct. 21, 2017, Dkt. #22, at 3.

About a year later, the Defendants moved to reopen the proceedings, explaining

that Massey’s criminal proceedings had concluded—Massey had pleaded no contest to a

charge of Access Device Fraud under 18 Pa. Cons. Stat. Ann. § 4106(a)(1)(iv) —and that

they wished to file a motion to dismiss his complaint. After the District Court granted the

motion to reopen, the Defendants moved to dismiss. The assigned Magistrate Judge

issued a Report and Recommendation, recommending that the claims raised in the

complaint be dismissed with prejudice, but that Massey be allowed an opportunity to

amend to clarify an “ambiguously-asserted Fourteenth Amendment claim of selective

prosecution.” Report and Recommendation, Dkt. #59, at 21. Massey objected to the

dismissal of his complaint and also clarified that he did not desire to pursue a selective

prosecution claim. The District Court adopted the Report and Recommendation, except

for the recommendation that Massey be allowed to amend his complaint. The District

Court dismissed the complaint with prejudice, and Massey timely appealed.

We have jurisdiction under

. Our review of a dismissal for

failure to state a claim pursuant to

(e)(2)(B)(ii), like that of a dismissal

on a party’s motion under Federal Rule of Civil Procedure 12(b)(6), is de novo. See

generally Allah v. Seiverling,

(3d Cir. 2000). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

3 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007)).

We agree with the District Court that Massey’s complaint fails to state a plausible

constitutional claim. First, we agree with the District Court’s decision to dismiss the

Assistant District Attorneys and Magistrate District Judge as defendants, because none of

the allegations of Massey’s complaint revealed that they took any actions unrelated to

initiating or conducting judicial proceedings. See Imbler v. Pachtman,

(1976); Stump v. Sparkman,

(1978).

Next, the District Court properly dismissed Massey’s unspecified claims under the

Fourth, Fifth, Eighth, and Fourteenth Amendments, as his complaint failed to set forth

any plausible claim for relief. See Iqbal,

.

As for his specific Fourth Amendment claims, Massey’s claim for malicious

prosecution is precluded by the “favorable termination” rule of Heck v. Humphrey,

(1994) (“One element that must be alleged and proved in a malicious

prosecution action is termination of the prior criminal proceeding in favor of the

accused.). Massey’s nolo contendere plea under Pennsylvania law is treated the same as

a conviction for purposes of Heck, see Curry v. Yachera,

(3d Cir.

2016), and his conviction has not been overturned. See also Junod v. Bader,

(Pa. Super. Ct. 1983) (“A resolution clearly adverse to the accused . . . such as a

conviction or guilty plea, denies his status of being wrongly accused and so diminishes

4 the likelihood of his proving lack of probable cause or malice that our courts will

promptly dismiss the malicious prosecution action.”).

We also agree that Massey’s false arrest claim is barred. To establish a false arrest

claim, the claimant must show that the arrest was made without probable cause. See

generally District of Columbia v. Wesby,

(2018). But “the

presumption of probable cause arising from a conviction can be rebutted only by showing

that the conviction had been obtained by some type of fraud,” see Heck,

n.4 (citing Crescent City Live Stock Co. v. Butchers’ Union Slaughter–House Co.,

(1887)), and Massey’s complaint contains no allegations that suggest his

arrest was fraudulent. See also Wesby,

n.2 (“Because probable cause is

an objective standard, an arrest is lawful if the officer had probable cause to arrest for any

offense, not just the offense cited at the time of arrest or booking.”). Similarly, Massey

failed to plead any plausible claim for malicious abuse of process, as he did not allege

that there was a “perversion” of the criminal prosecution process to accomplish a purpose

other than that for which the criminal process was intended. See Jennings v. Shuman,

, 1218 & n.4 (3d Cir. 1977).

For the foregoing reasons, we will affirm the District Court’s judgment, although

we will modify the order of dismissal as to the malicious prosecution claim to be without

prejudice, so that if Massey ever succeeds in overturning his conviction, he may refile his

claim. See Curry,

.

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