WILLIAMS v. CITY OF PITTSBURGH et al

Filing 184

ORDER sustaining in part and overruling in part 175 Objections to Verdict Slip filed by ERIC BAKER, NATHAN AUVIL, STEPHEN MATAKOVITCH, BRENDAN NEE; sustaining in part and overruling in part 176 Objections to Proposed Final Jury Instruction s on Liability filed by ERIC BAKER, NATHAN AUVIL, STEPHEN MATAKOVITCH, BRENDAN NEE; overruling 181 Errata to 177 Objections to Proposed Final Jury Instructions on Liability filed by DAVID WILLIAMS; and overruling 182 Errata to 178 Objections to Proposed Final Jury Instructions on Damages filed by DAVID WILLIAMS. Signed by Judge Arthur J. Schwab on 4/14/2016. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID WILLIAMS,
Plaintiff,

15cv0402
ELECTRONICALLY FILED

v.
OFFICER ERIC BAKER, OFFICER
BRENDAN NEE, OFFICER NATHAN
AUVIL, and STEPHEN MATAKOVICH,
Defendants.
MEMORANDUM ORDER
Before the Court are Objections filed by the Parties to the Verdict Slip and both sets of
the Court’s Proposed Final Jury Instructions. The Objections are as follows: Defendants’
Objection to the Verdict Slip (doc. no. 175), Defendants’ Objection to the Final Jury
Instructions on Liability (doc. no. 176), Plaintiff’s Objections to the Final Jury Instructions on
Liability (doc. no. 181), and Plaintiff’s Objections to the Final Jury Instructions on Damages
(doc. no. 182). The Court will address the Objections in the Order in which they were filed.
1. Defendants’ Objection to the Verdict Slip (doc. no. 175)
The Verdict Slip submitted by the Parties (doc. no. 158) indicated that the first question
to be answered was whether Plaintiff proved by a preponderance of the evidence that he was
subject to false arrest. The parties disagreed as to what should happen if the jury found that
Plaintiff had not met this burden. Specifically, the Parties stated:
Note, the parties disagree as to whether the jury should proceed to the
malicious prosecution claim in the event that the answer to Part A1 is “No”.
Defendants contend that if the jury answered no it means they found there was
probable cause, and if so, there can be no malicious prosecution claim; plaintiff
contends that a “NO” answer is not dispositive since the jury could find probable
cause as to one criminal offense sufficient to defeat a false arrest claim, but not

have found probable cause for all of the charges, thereby preserving the malicious
prosecution claim as to that charge or charges)(Attached as Plaintiff’s proposed
verdict slip in the event that the jury’s answer to Part A1 is “NO”[.]
After receiving this Proposed Verdict form noting the dispute, the Court issued its
own Verdict Slip and allowed the Parties to raise Objections. The Court’s Verdict Form
(doc. no. 163) asked the jury to determine if Plaintiff proved by a preponderance of the
evidence that he was subject to false arrest by one or more of the Defendants. Regardless
of how the jury decided the false arrest question, the jury was instructed in the Court’s
Verdict Form to next determine if Plaintiff proved by a preponderance of the evidence
that he was subjected to a malicious prosecution. See doc. no. 163.
Defendants’ Objection to the Court’s Verdict Form argues that the jury should be
instructed to skip the malicious prosecution question if the jury finds that Plaintiff failed to prove
false arrest. See doc. no. 175. The Court continues to disagree with Defendants on this issue.
First, the Court notes that the case which Defendants claim “controls” this issue, Kossler
v. Crisanti, 564 F.3d 181 (3d Cir. 2009), was a case of first impression on the issue of whether
acquittal on at least one criminal charge constitutes a “favorable termination” for the purpose of
a subsequent malicious prosecution claim, when the charge arose out of the same act for which
the plaintiff was convicted on a different charge during the same criminal prosecution. These
facts are not present in this case – Plaintiff was charged with several crimes all of which were
withdrawn at the same time. So the main issue in the Kossler case is not present here.
Next, in order to bring a successful Section 1983 claim for malicious prosecution,
Plaintiff will be required to establish:
(1) the defendant initiated a criminal proceeding;
(2) the criminal proceeding ended in his favor;
(3) the defendant initiated the proceeding without probable cause;

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(4) the defendant acted maliciously or for a purpose other than bringing the
plaintiff to justice; and
(5) the plaintiff suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.
Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). In order to succeed on a claim for
false arrest Plaintiff “must show that the arresting officer lacked probable cause to make the
arrest.” Garcia v. County of Bucks, 155 F.Supp. 2d 259, 265 (E.D. Pa. 2001) (citing Groman v.
Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). “Probable cause exists when the totality
of facts and circumstances are sufficient to warrant an ordinary prudent officer to believe that the
party charged has committed an offense.” Id.
A false arrest claim and malicious prosecution claim differ as explained by the United
States Court of Appeals for the Third Circuit in Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir.
2007):
Malicious prosecution differs from false arrest inasmuch as “[a] claim for false
arrest, unlike a claim for malicious prosecution, covers damages only for the time
of detention until the issuance of process or arraignment, and not more.”
Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998); see also Heck v.
Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 2371, 129 L.Ed.2d 383 (1994)
(“[U]nlike the related cause of action for false arrest or imprisonment, [malicious
prosecution] permits damages for confinement imposed pursuant to legal
process.”); Montgomery, 159 F.3d at 128-29 (Roth, J., dissenting) (“[A] false
arrest claim, in which a person may have been illegally arrested even though
guilty of the prosecuted offense, is very different from a malicious prosecution
claim where the propriety of the prosecution itself depends on it being initiated
with probable cause.”).
In Wright, 409 F.3d at 603-04, an appeal that involved section 1983 claims for
both false arrest and malicious prosecution, we explained that under Barna v. City
of Perth Amboy the plaintiff’s claim of false arrest would fail because there was
probable cause for her arrest for one of the offenses for which she had been
arrested. We further concluded that the existence of probable cause with respect
to one offense for which the plaintiff was arrested similarly “disposes of her
malicious prosecution claims with respect to all of the charges brought against
her.” 409 F.3d at 604 (emphasis added). We explained that “[t]o prevail on [a
malicious prosecution] claim, [the plaintiff] must show that the officers lacked
probable cause to arrest her.” Id.
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However, in a footnote, the Court of Appeals for the Third Circuit stated:
We observe that we adjudicated the issue relating to malicious prosecution in
Wright in a single paragraph without citation of any precedent. This
circumstance, however, does not diminish the precedential status of that case. We
also observe that in light of the facts of that case, where the circumstances leading
to the arrest and prosecution were totally intertwined, the result was reasonable
because there the officers took their actions by the time of the arrest and thus
before the prosecution. Here, however, Knorr’s conduct was bifurcated in the
sense that the agents first arrested Johnson and then, after the arrest, Knorr took
steps by supplying information to Detective Dove that led to Johnson’s
prosecution. Indeed, in our opinion on the first appeal in this case, we took note
of that point by indicating that Johnson argued “that he had stated a claim under a
malicious prosecution theory, grounded not in the probation office confrontation,
but in Knorr’s statements about the incident made to Philadelphia police which
led to [his] prosecution.” Johnson, 130 Fed. Appx. at 554.
Id. at 82, n.9.
After further discussion, the Court of Appeals concluded:
. . . we do not understand Wright to establish legal precedent of such broad
application that it would “insulate” law enforcement officers from liability for
malicious prosecution in all cases in which they had probable cause for the arrest
of the plaintiff on any one charge.
Id. at 83 (emphasis added).
Despite Defendants’ argument that Johnson v. Knorr is distinguishable from this case, the
Court disagrees. Plaintiff’s version of the proposed verdict form asked the jury to consider each
charge that was brought against each Defendant and determine if probable cause existed on a
charge-by-charge basis. See doc. no. 158-1. Then, Plaintiff’s proposed form requested that the
jury consider – for any claim for which they did not find probable cause – whether there was a
right to be free from malicious prosecution. The Court concurs that this proposal is the most
accurate way to obtain a just verdict in this case. However, the Court found Plaintiff’s Proposed
Verdict Form on this issue (see doc. no. 158-1) quite confusing for a jury.

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In light of Defendants’ Objection and Plaintiff’s Proposed Verdict Form (doc. no. 158-1)
both of which suggest that Plaintiff can only move forward on a malicious prosecution claim
against any Defendant for a claim where no probable cause existed, the Court will prepare a
revised draft of the Verdict Form, and will file same contemporaneously with this Order.
Accordingly, Defendants’ Objection on this issue is overruled in part and sustained in part.
The Court overrules the Objection and declines to prepare a Verdict Form whereby the
jury is directed to skip the malicious prosecution liability question in its entirety, if the jury finds
that probable cause existed with respect to Plaintiff’s false arrest claim. However, it is sustained
to the extent that this Court will revise its current Verdict Form so that the jury must indicate for
which charge(s) Plaintiff met his burden of proving a malicious prosecution. The Court finds
that its version of the Jury Instructions relating to liability make it clear that the jury must find
one or more of the Defendants lacked probable cause to arrest Plaintiff in order for Plaintiff to
prevail on his claim for false arrest (and the verdict form asks for the specific identity of the
person(s) who are liable for the false arrest). Simultaneously, the Court’s version of the Jury
Instructions relating to liability also explicitly state that the jury must find one or more of the
Defendants lacked probable cause to initiate the legal proceeding against Plaintiff (and the
verdict form asks for the specific charge(s) which was/were maliciously prosecuted as well as the
specific identity of the person(s) who are liable for the malicious prosecution).

2. Defendants’ Objection to the Final Jury Instructions on Liability (doc. no. 176)
Defendants have objected to the Court’s decision to exclude two of their proposed
additional instructions. Defendants’ first proposed, but omitted, instruction would read: “If
Defendant Baker can prove that probable cause existed for any one of the charges filed against

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Plaintiff, then you must enter judgment in favor of Defendant Baker on Plaintiff’s claims of false
arrest and malicious prosecution.” The Court disagrees that this instruction should be given.
As noted above, and in the case law referenced above, each charge is to be separately
considered and the jury must determine whether probable cause existed for each separate charge
when determining whether Plaintiff met his burden of proof in a malicious prosecution claim.
For this reason, the Court overrules Defendants’ Objection.
Defendants’ second proposed, but omitted, instruction would read: “The criminal charges
must have been disposed of in a manner that indicates the innocence of the accused to satisfy the
favorable termination element of a malicious prosecution claim.” The Court agrees that this
limited instruction should be given and will revise its Final Jury Instructions to reflect this.1
The United States Court of Appeals for the Third Circuit has held that while “a grant of
nolle prosequi can be sufficient to satisfy the favorable termination requirement for malicious
prosecution, not all cases where the prosecutor abandons criminal charges are considered to have
terminated favorably.” See DiFronzo v. Chiovero, 406 Fed. Appx. 605, 609 (3d Cir. 2011)
citing Hilfirty v. Shipman, 91 F.3d 573, 579–580 (3d Cir. 1996). The Court of Appeals in
DiFronzo further explained:
A nol pros signifies termination of charges in favor of the accused “only when
their final disposition is such as to indicate the innocence of the accused.”
Donahue, 280 F.3d 371, 383 (3d Cir. 2002) (quoting Restatement (Second) of
Torts: Indecisive Termination of Proceedings § 660, cmt. a). Accordingly, in
Hector v. Watt, 235 F.3d 154, 156 (3d Cir.2000), we stated that a § 1983

Defendants originally proposed an instruction which read: “Malicious Prosecution – Favorable
Termination The criminal charges must have been disposed of in a manner that indicates the innocence of
the accused to satisfy the favorable termination element of a malicious prosecution claim. Source: Kossler
v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009); See also Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir.
2002) (citing Restatement (Second) of Torts §§ 659 & 660 (1976)); see also Hilfirty v. Shipman, 91 F.3d
573, 575 (3d Cir. 1996). If you find that the Defendant Baker withdrew the charges as a favor to Plaintiff
so he would not lose his job, then you must find that the charges were not terminated in a manner that
indicated innocence.” See doc. no. 135.
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malicious prosecution plaintiff “must be innocent of the crime charged in the
underlying prosecution.” Id.
406 Fed. Appx. 605 at 609.
In this case, evidence will be presented that all charges against Plaintiff were dropped,
but they will have watched a video of the actual event itself, and have received ample testimony
concerning the video depictions so as to determine whether the charges were dropped as a
courtesy or because Plaintiff was innocent of those charges. Accordingly, the Court sustains
this Objection.

3. Plaintiff’s Objections to the Final Jury Instructions on Liability (doc. no 181)
Plaintiff first argues that the Court’s Final Jury Instructions should not contain an
instruction that it is his burden of proof to establish the lack of probable cause for both the false
arrest claim and the malicious prosecution claim. The Court acknowledges that there is a split
among the case law within this Circuit as to which party bears the burden of proving a lack of
probable cause in a false arrest claim. In fact, the Model Jury Instructions identify the split. See
Comment 4.12.2. In light of the difficulty a jury may well experience in distinguishing a false
arrest claim from a malicious prosecution claim, the Court finds that the best approach is to have
Plaintiff bear the burden of proof throughout all of these claims. Accordingly, the Court
overrules this Objection.
Plaintiff next objects to the Court’s omission of an instruction indicating that the jury
could “infer malice from the absence of probable cause.” See doc. no. 181.

The Court does not

need to instruct the jury in this regard and therefore, overrules this specific and all remaining
Objections raised by Plaintiff.

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4. Plaintiff’s Objections to the Final Jury Instructions on Damages (doc. no 182)
The Court will sustain the first objection raised by Plaintiff and will delete the phrase on
page one of the Jury Instructions on Damages: “Just because I am instructing you on how to
award damages.”
Plaintiff’s other objection concerns mitigation. Plaintiff’s suggests the Court omit the
mitigation instruction because, per Plaintiff, Defendants will not be able to proffer any evidence
to carry their burden of proof that: (1) that there was a means by which Plaintiff could mitigate
any damages to which he is entitled for the harm caused by the defendants' conduct; and/or
(2) that Plaintiff unreasonably failed to undertake such available mitigation. At this time, the
Court will not omit the instruction. However, this matter may be raised again by Plaintiff
following the close of the damages portion of the case outside the presence of the jury.
Therefore, the Court overrules this Objection without prejudice to Plaintiff to re-raise the
matter at the close of the damages portion of the case.

SO ORDERED, this 14th day of April,
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

ECF registered counsel of record

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