ALD-015 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-2009 ___________

EDDIE RAY GRAY, Appellant

v.

PA STATE TROOPER TIMOTHY WITTMAN, in his official and individual capacities; ALAN M. CONN, Warren County Public Defender, in his official and individual capacities ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No.1-19-cv-00125) Magistrate Judge: Honorable Richard A. Lanzillo ____________________________________

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 October 22, 2020

Before: MCKEE, GREENAWAY, JR., and BIBAS, Circuit Judges

(Opinion filed January 7, 2021) _________

OPINION* _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Eddie Ray Gray appeals the District Court’s order dismissing his complaint. For

the reasons below, we will summarily affirm the District Court’s judgment.1

The procedural history of this case and the details of Gray’s claims are well known

to the parties, set forth in the District Court’s memorandum opinion, and need not be

discussed at length. Briefly, Gray was convicted of conspiracy and several counts of

terroristic threats and retaliation for sending threatening letters while in prison. He was

sentenced to 35-71 years in prison. After state post-conviction proceedings, Gray filed a

petition pursuant to

and received habeas relief which resulted in three

of his seven convictions for retaliation being vacated. The Commonwealth declined to

retry him on those charges, and he was subsequently resentenced to 25-50 years in prison.

Commonwealth v. Gray, No. 15 WDA 2020,

, at *1 (Pa. Super. Ct.

July 28, 2020).

In 2019, Gray filed a civil rights complaint in which he brought claims of false

arrest and malicious prosecution against Appellee Trooper Timothy Wittman with respect

to the vacated retaliation claims. He also alleged state law claims against Wittman and

Alan Conn, an attorney who represented Gray at his criminal trial. Wittman filed a

motion to dismiss which the District Court granted. It determined that Gray failed to

state a claim for false arrest because he was already in custody and could not show that

1 All parties consented to having the Magistrate Judge conduct the proceedings. See

(c)(1). 2 he was detained without legal justification. The District Court also concluded that the

false arrest claim failed as a matter of law because there was probable cause to arrest

Gray on the other charges for which he was convicted. As for the malicious prosecution

claim, the District Court determined that Gray’s incarceration likewise undermined such

a claim because the filing of the charges did not deprive him of any liberty. It declined to

exercise supplemental jurisdiction over Gray’s state law claims and concluded that

amendment of the complaint would be futile. See Gray v. Wittman, No. 1:19-CV-

000125,

(W.D. Pa. May 1, 2020). Gray filed a timely notice of

appeal.

We have jurisdiction under

. Our review of the dismissal of the

claims for failure to state a claim is plenary, see Tourscher v. McCullough,

(3d Cir. 1999), and our review of the District Court’s refusal to exercise

supplemental jurisdiction over the state law claims is for an abuse of discretion.

Elkadrawy v. Vanguard Grp., Inc.,

(3d Cir. 2009).

To state a claim for false arrest, a plaintiff must establish that probable cause was

lacking. James v. City of Wilkes-Barre,

(3d Cir. 2012). Because

probable cause is only needed with respect to any offense that could be charged under the

circumstances, see Barna v. City of Perth Amboy,

(3d Cir. 1994),

establishing probable cause on one of multiple charges will defeat a claim of false arrest.

Startzell v. City of Phila.,

, 204 n.14 (3d Cir. 2008). Here, the jury’s verdict

3 at Gray’s criminal trial demonstrates that there was probable cause to arrest Gray on the

remaining charges of terroristic threats and conspiracy.

To state a claim of malicious prosecution, Gray must allege that the defendants

maliciously, and without probable cause, initiated a criminal proceeding which ended in

his favor, and that he suffered a deprivation of liberty. See Curry v. Yachera,

(3d Cir. 2016). Here, Gray suffered no deprivation of liberty; he was already

incarcerated and would have been detained on the other counts of conviction in any

event. See

(because plaintiff was already incarcerated before charges were

brought and after they were dropped, he was not deprived of his liberty as a consequence

of those charges).

Gray requests that we summarily remand the matter to allow him to amend his

complaint. He seeks to include an affidavit from another prisoner to support his

argument that probable cause did not exist on the vacated retaliation claims because he

did not intend to harm the recipients of the letters but was trying to get transported to the

Warren County Jail in order to escape.2 This affidavit does not undermine the

determination that probable cause supported the remaining charges and that Gray

suffered no deprivation of his liberty. Because these additional allegations do not cure

2 Gray did, in fact, try to escape from the Warren County Jail, and was sentenced to 15-30 years in prison after being convicted of aggravated assault, possession of an instrument of crime, and escape. Commonwealth v. Gray, No. 213 WDA 2017,

, at *1 (Pa. Super. Ct. Aug. 18, 2017).

4 the deficiencies in his complaint, the District Court did not abuse its discretion in denying

Gray an opportunity to amend. See Grayson v. Mayview State Hosp.,

(3d Cir. 2002) (opportunity to amend not required if it would be futile). Because the

District Court correctly dismissed all the federal claims, it did not abuse its discretion in

refusing to exercise supplemental jurisdiction over Gray’s state law claims. Elkadrawy,

.

Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those given by the

District Court, we will summarily affirm the District Court’s judgment. See Third Circuit

I.O.P. 10.6.

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