NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 10-2236
                                    _______________

                                   DEREK WALKER,

                                                  Appellant

                                             v.

                   CLEARFIELD COUNTY DISTRICT ATTORNEY;
                            THOMAS P. MCGINNIS
                               _______________

                     On Appeal from the United States District Court
                        For the Western District of Pennsylvania
                         (D.C. Civil Action No. 3-09-cv-00073)
                       District Judge: Honorable Kim R. Gibson
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 10, 2011
                                  _______________

            Before: RENDELL, AMBRO, and HARDIMAN, Circuit Judges

                             (Opinion filed: January 24, 2011)
                                    _______________

                                       OPINION
                                    _______________

AMBRO, Circuit Judge

       Plaintiff-appellant Walker appeals the District Court’s decision dismissing his

retaliatory prosecution action, brought under 42 U.S.C. § 1983, for failure to state a
claim. Specifically, Walker alleged in his amended complaint that the Clearfield County

District Attorney, William A. Shaw, Jr., violated his (Walker’s) First Amendment rights

by prosecuting him based on false evidence in retaliation for his decision to seek political

office. We affirm the District Court, though on a different basis than it used. 1 See Erie

Telecomms. v. Erie, 

, 1089 n.10 (3d Cir. 1998) (“An appellate court may

affirm a correct decision by a lower court on grounds different from those used by the

lower court in reaching its decision.”).

       The allegations in Walker’s amended complaint are as follows. On August 25,

2007, he was involved in a “domestic incident” with his former girlfriend, Katie Ferry.

Walker alleges that this incident involved no violence, and that the police officers who

responded to Ms. Ferry’s call informed him not to have any further communication with

her, but did not arrest him. Shortly thereafter, Walker announced his intention to seek the

Republican nomination for a seat in the United States House of Representatives, and

began campaigning. Before the primary election was to take place (but several months

after the domestic incident), Shaw began to investigate the incident, allegedly coercing

false witness statements against Walker. Following this investigation—and just a few

days before the primary election—Shaw directed the Chief of Police to file charges

against Walker, who then lost the primary.

       In a nutshell, Walker alleges that Shaw intentionally manufactured false witness

testimony against him, and then used that testimony as the basis on which to file criminal


1
 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction
under 28 U.S.C. § 1291.
                                             2
charges. Walker further alleges that Shaw did all this in order to make his candidacy for

political office untenable—or, in other words, to retaliate against Walker for his choice to

seek office. He seeks compensatory and punitive damages, and a declaration that Shaw

infringed his First Amendment rights.

       The District Court dismissed Walker’s first amended complaint for failure to state

a claim. The Court first concluded that absolute prosecutorial immunity protected Shaw

from liability for money damages. Then, as to Walker’s demand for declaratory relief,

the Court held that the claim failed on the merits because “[i]nsufficient support among

voters in [Walker’s] district provides no grounds for equitable redress in this court.”

Opinion at 2.

       Treating all of Walker’s allegations as true, we conclude that Shaw was not

entitled to absolute immunity as to at least part of Walker’s claim. The crux of Walker’s

complaint is that Shaw manufactured evidence against him in order to establish probable

cause to arrest Walker. The Supreme Court has held that when prosecutors perform

investigatory functions, like determining whether there is probable cause to arrest a

suspect, they are entitled only to qualified, and not absolute, immunity. Buckley v.

Fitzsimmons, 

, 275-76 (1993) (“A prosecutor may not shield his

investigative work with the aegis of absolute immunity merely because, after a suspect is

eventually arrested, indicted, and tried, that work may be retrospectively described as

‘preparation’ for a possible trial”). Thus, to the extent that Walker’s complaint concerns

Shaw’s pre-indictment investigation of the allegations against Walker, Shaw is entitled

only to qualified immunity. By contrast, Shaw is entitled to absolute immunity from

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monetary—but not equitable—liability based on the decision to prosecute. Supreme

Court of VA v. Consumers Union of the United States, Inc., 

, 736-37 (1980)

(equitable relief available even if defendant has prosecutorial immunity). Here, Walker

seeks declaratory, as well as monetary, relief. Accordingly, we shall turn to whether

Walker’s complaint states a claim on which relief could be granted.

       Walker argues that “he had a First Amendment right to participate in the political

process free of a politically motivated criminal prosecution based on false evidence.”

Appellant Br. at 10. To establish a First Amendment retaliation claim predicated on 42

U.S.C. § 1983, a plaintiff must prove the following elements: (1) constitutionally

protected conduct; (2) that the defendant took adverse action sufficient to deter a person

of ordinary firmness from exercising his rights; and (3) a causal connection between the

two. Mitchell v. Horn, 

, 530 (3d Cir. 2003). There is also a fourth element

required to state a First Amendment retaliation claim premised on an investigation that

leads to a decision to prosecute: the absence of probable cause for the prosecution.

Hartman v. Moore, 

, 265-66 (2006); Miller v. Mitchell, 

, 154

(3d Cir. 2010) (probable cause element applies even where same individual acted as both

investigator and prosecutor).

       While Walker’s complaint may have been sufficient as to the first three elements,

it fails on the final prong. In the underlying criminal case, Walker pled guilty, though to

a lesser offense. Borrowing from the closely analogous malicious prosecution context,

we conclude that a guilty plea—even one for a lesser offense—does not permit a later

assertion of no probable cause. Cf. Donahue v. Gavin, 

, 383 (3d Cir. 2002)

                                             4
(malicious prosecution claims require that underlying criminal proceedings were

terminated in manner signifying the innocence of the accused).

       This conclusion is consistent with Heck v. Humphrey, 

(1994), under

which Walker’s claim would fail even if he could allege the absence of probable cause

despite his guilty plea. In Heck, the Supreme Court held that § 1983 relief is not

available a to civil plaintiff for whom success on the merits would “necessarily imply the

invalidity of [the] conviction,” unless the conviction was previously negated. 

Here, the basis of Walker’s suit is that Shaw manufactured evidence against him, and

that, as a result, Walker pled guilty to a crime. If that allegation were proven, it would

plainly imply the invalidity of Walker’s conviction, and thus Walker’s § 1983 suit runs

afoul of Heck.

       Accordingly, we affirm the District Court.




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