DAVIS v. GRABER et al
ORDER. It is hereby ORDERED that Defendants' 45 Motion to Dismiss is GRANTED. It is further ORDERED that Chief Magistrate Judge Kelly's 57 Report and Recommendation is ADOPTED as the opinion of this Court. It is further ORDERED tha t, pursuant to Rule 4(a)(l) of the Federal Rules of Appellate Procedure, if any party wishes to appeal from this Order, a notice of appeal, as provided in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court, at 700 Grant Street, Room 3110, Pittsburgh, PA 15219, within thirty (30) days. Signed by Judge Mark R. Hornak on 1/18/17. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM S. DAVIS, JR.,
LYLE GRABER individually and in his
capacity as a Police Detective for the
Investigations Unit for the Allegheny
County District Attorney, ALLEGHENY
ALLEGHENY COUNTY OFFICE OF
THE DISTRICT ATTORNEY and
STEPHEN A. ZAPP ALA, JR.
individually and in his official capacity
as the District Attorney ofAllegheny
Civil Action No. 14-1416
Judge Mark R. Hornak/
Chief Magistrate Judge Maureen P. Kelly
AND NOW, this 18th day of January, 2017, after William S. Davis, Jr. ("Plaintiff') filed a
Second Amended Complaint in the above-captioned matter (ECF No. 43) and after Defendants
filed a Motion to Dismiss that Amended Complaint, (ECF No. 45) and after a Report and
Recommendation was filed by Chief United States Magistrate Judge Kelly (ECF No. 57), and
upon consideration of Objections filed by Defendants (ECF Nos. 58 and 59), and the Response
in Opposition to the Objections (ECF Nos. 60 and 61) and upon independent review of the
record, and upon consideration of the Magistrate Judge's Report and Recommendation, which is
ADOPTED as the opinion of this Court, as supplemented by the provisions of this Order.
As this Court observed in Posey v. Swissvale Borough, No. 12-cv-955, 2013 WL 989953,
*10 (W .D. Pa. Mar.
13, 2013 ), it appears that the applicable rule of law in this Circuit is that if
probable cause is present as to any one count of a series of parallel criminal charges, then a
§ 1983 malicious prosecution claim cannot obtain. Id. Importantly here, this Court also
recognized that the law as to that question was "murky'', id., but the Court was to be guided by
the Third Circuit's en bane decision in Kassler v. Crisanti, 564 F. 3d 181, 194 n. 8 (3d Cir.
2009), which acknowledged the preeminence of that Court's panel decision in Wright v. City of
Philadelphia, 409 F. 3d 595 (3d Cir. 2005) on the issue 1• As this Court noted in Posey, that
murkiness also stands at least for the proposition that in the qualified immunity arena, it can
hardly be said that a contrary rule of constitutional law is so "clearly established" such that every
public actor would know that it was beyond doubt that they could face a § 1983 malicious
prosecution claim unless there was probable cause as to every criminal charge brought in such
circumstances. See Mullenix v. Luna, 136 S. Ct. 305, 308 (20l5)(per curiam); see also White v.
Pauly, 2017 WL 69170 (Jan. 9, 20l 7)(per curiam). Thus, the Report and Recommendation that
these remaining claims be dismissed for the reasons stated is correct.
IT IS HEREBY ORDERED that the Motion to Dismiss, ECF No. 45, is GRANTED.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(l) of the Federal Rules of
Appellate Procedure, if any party wishes to appeal from this Order, a notice of appeal, as
provided in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court,
at 700 Grant Street, Room 3110, Pittsburgh, PA 15219, within thirty (30) days.
the extent this Court previously in this case gave precedence to the Third Circuit's decision in Johnson v.
Knorr, 477 F. 3d 75 (3d Cir. 2007), I was for the reasons noted in Posey incorrect on that point. As this Court
observed in Posey, the murkiness of this issue was recognized by the en bane Court of Appeals itself in Koss/er
when it acknowledged the tension between its decisions in Wright and Johnson on this issue, and applied standing
Circuit precedent to give precedence to its early decision in Wright.
Mark R. Hornak
United States District Judge
Honorable Maureen P. Kelly
Chief United States Magistrate Judge
All Counsel of Record Via CM-ECF
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