Thomas Givens v. WalMart Stores Inc ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2989
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THOMAS ALLEN GIVENS,
Appellant
v.
WAL-MART STORES, INC.
_____________________________________
On Appeal from the United States District Court for the
Western District of Pennsylvania
(District Court No. 2-22-cv-01006)
District Judge: Honorable Christy Criswell Wiegand
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 22, 2023
(Filed: October 31, 2023)
Before: RESTREPO, McKEE, RENDELL, Circuit Judges.
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O P I N I O N*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge.
Plaintiff-Appellant Thomas Allen Givens appeals the order of the District Court
granting Wal-Mart Stores, Inc.’s (“Walmart”) motion to dismiss Given’s malicious
prosecution claim brought under Pennsylvania law. Because the District Court concluded
that it was clear from the pleadings that Walmart had probable cause, it granted
Walmart’s motion to dismiss. We agree and will affirm.
I.
On May 13, 2021, Mr. Shonts, a loss prevention officer at the Walmart
Supercenter (“store”) in West Brownsville, Pennsylvania, reported a theft to the West
Brownsville Police Department. Officer Matthew Morelli responded to the report.
Officer Morelli spoke with Arram Nelson in the store’s parking lot, who confessed to
participating in the theft and identified Jacob Wolfe and Givens as the two other
participants in the theft. Mr. Shonts also identified Givens, and his and Nelson’s
identifications of Givens are described in the affidavit of probable cause that
accompanied the criminal complaint against Givens.
On May 14, 2021, the West Brownsville Police Department charged Givens with
misdemeanor retail theft pursuant to 18 Pa. Cons. Stat. § 3929(a)(1). On May 6, 2022,
the charge against Givens was dismissed with prejudice.
On June 9, 2022, Givens sued Walmart in the Court of Common Pleas of
Washington County, Pennsylvania, urging that Shonts’s identification was incorrect and
therefore the criminal proceeding against him was initiated without probable cause.
Walmart removed the action to federal court on the basis of diversity jurisdiction and
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filed a motion to dismiss for failure to state a claim. Givens filed an Amended Complaint
on August 11, 2022, which dropped the original claims and replaced them with a single
claim alleging malicious prosecution under Pennsylvania common law. On August 24,
2022, Walmart filed a Rule 12(b)(6) Motion to Dismiss the Amended Complaint,
attaching the criminal complaint against Givens and the supporting affidavit of probable
cause.
On September 23, 2022, the District Court concluded that probable cause existed
and was a complete defense to Givens’ malicious prosecution claim. It dismissed the
Amended Complaint with prejudice.
Givens timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction under 28 U.S.C. § 1291. We review a district court’s grant of a motion to
dismiss de novo. Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237,
246 (3d. Cir. 2010).
In reviewing a motion to dismiss, we accept as true a complaint’s factual
allegations and view them in the light most favorable to the plaintiff. Phillips v. Cnty. Of
Allegheny, 515 F.3d 224, 231, 233 (3d. Cir. 2008); Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997). We must “consider only the complaint, exhibits
attached to the complaint, matters of public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010). In the present case, Givens has not raised
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any objection to the District Court’s consideration of the criminal complaint filed against
him, attached to Walmart’s motion to dismiss, which includes the affidavit of probable
cause.
III.
The prima facie elements of a malicious prosecution claim under Pennsylvania
law are “that the defendant instituted proceedings against the plaintiff 1) without probable
cause, 2) with malice, and 3) the proceedings must have terminated in favor of the
plaintiff.” Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017) (quoting Kelley v.
Gen. Teamsters, Chauffers & Helpers, Local Union 249, 544 A.2d 940, 941 (Pa. 1988)
(internal quotation marks omitted). The existence of probable cause is “an absolute
defense” to a malicious prosecution claim. Meiksin v. Howard Hanna Co., 590 A.2d
1303, 1305 (Pa. Super. Ct. 1991) (internal quotation marks omitted); Turano v. Hunt, 631
A.2d 822, 824 (Pa. Commw. Ct. 1993). “The plaintiff has the burden of proving lack of
probable cause and despite the difficulty of establishing a negative, the requirement is
rigidly enforced.” Martinez v. E.J. Korvette, Inc., 477 F.2d 1014, 1016 (3d Cir. 1973).
The District Court granted Walmart’s motion to dismiss because it concluded that
Nelson, a third party with no connection to Walmart, identified Givens as the shoplifter
and that was sufficient to establish probable cause. Bernar v. Dunlap, 39 Leg. Int. 402(Pa. 1880). We agree. Probable cause exists “whenever reasonably trustworthy
information or circumstances within a police officer’s knowledge are sufficient to
warrant a person of reasonable caution to conclude that an offense has been committed by
the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2022)
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(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). This standard is clearly established when a
nonparty witness identifies the plaintiff as having committed the crime in question. See,
e.g., Campbell v. Yellow Cab Co., 137 F.2d 918, 923 (3d Cir. 1943) (applying
Pennsylvania law).
On appeal, Givens makes several arguments urging us to reverse. None are
persuasive.
Givens first argument is, broadly, that the District Court did not conduct the
appropriate analysis for a motion to dismiss. We disagree. Givens urges us to conclude
that because he alleges his innocence in the Amended Complaint, the identification from
Nelson cannot have provided probable cause. The affidavit of probable cause is not in
“direct conflict” with Givens’ allegation that he was, in fact, innocent. Br. of Appellant
16. Givens misunderstands the nature of the probable cause inquiry.
In a malicious prosecution action, “[t]he function of the court [is] to determine
whether the objective facts available to the officers at the time of arrest were sufficient to
justify a reasonable belief that an offense was being committed.” United States v.
Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984) (citing Beck v. Ohio, 379 U.S. 89, 91
(1964)). We believe that here, they were. Nelson told police that Givens was one of the
two other people with him in the store committing retail theft. That fact is now part of
the pleadings, and is sufficient to meet the relatively low bar to establish probable cause
as a matter of law, even accepting Plaintiff’s factual allegations as true. The statement
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from Nelson identifying Givens provided probable cause without regard to whether it was
true. The fact that Nelson told this to Officer Morelli is all that is required.1
Similarly, Givens argues the “appropriate analysis” the District Court should have
undergone was conducted in Fought v. City of Wilkes-Barre, 466 F.Supp.3d 477 (M.D.
Pa. 2020). There, the court declined to grant a motion to dismiss based on a lack of
probable cause when a factual dispute existed that precluded a decision as a matter of
law. Here, however, no factual dispute exists, and the District Court accordingly
conducted the proper analysis. Indeed, it is well settled that district courts may decide the
existence of probable cause as a matter of law and even Fought recognizes as much.
Fought, 466 F.Supp.3d at 506-07; see, e.g., Simpson v. Montgomery Ward & Co., 46
A.2d 674, 676 (Pa. 1946).
Second, Givens argues that the Restatement (Second) of Torts § 665(1) contradicts
the District Court’s finding of probable cause because the loss prevention officer failed to
appear as a witness in the criminal case against him, essentially abandoning the case. But
the Restatement addresses the situation where a private party is acting as prosecutor.
Here, the prosecution of Givens was pursued and maintained by the public prosecutor,
and not Walmart. The loss prevention officer’s failure to appear has no bearing on the
existence of probable cause here.
1
Givens also suggests that the District Court should not have considered Nelson’s
identification because it was hearsay. While probable cause may be founded upon
hearsay, Franks v. Delaware, 438 U.S. 154, 165 (1978), the existence of probable cause
does not depend on the truth of the matter asserted by Nelson. That Nelson made the
identification and Officer Morelli accepted it is sufficient.
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Finally, Givens argues that the District Court failed to draw the reasonable
inference that evidence from Walmart was necessary to establish probable cause. The
District Court concluded that, even accepting as true Givens’ allegations that Mr.
Shonts’s identification was incorrect, Officer Morelli had independent probable cause
based on Nelson’s statements. As the District Court aptly explained, “[A] single
identification that an arresting officer accepts in good faith is sufficient to establish
probable cause.” Givens v. Wal-Mart Stores, Inc., No. 2:22-CV-1006-CCW, 2022 WL
4448947 at *3 (W.D. Pa. Sept. 23, 2022). We agree. Bernar v. Dunlap, 39 Leg. Int. 402(Pa. 1880) (concluding that the statement of one witness may establish probable cause);
Campbell v. Yellow Cab Co., 137 F.2d 918, 923 (3d Cir. 1943) (applying Pennsylvania
law).
At bottom, despite Givens’ arguments to the contrary, we conclude, as the District
Court concluded, that there was probable cause for the criminal complaint and the
District Court properly granted Walmart’s motion to dismiss.
IV.
For these reasons, we will affirm the District Court’s order.
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