NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 15-3242
                                  _____________

                                DALE SHAFFER,
                                       Appellant

                                         v.

    CITY OF PITTSBURGH; NICHOLAS J. BOBBS, in his official and individual
                                    capacities;
     ANTONIO CIUMMO, in his official and individual capacities; JOHN and/or
                                   JANE DOE,
                   in their official and individual capacities
                                 _____________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                          District Court No. 2-14-cv-01674
                 District Judge: The Honorable Joy Flowers Conti

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 May 17, 2016

          Before: SMITH, HARDIMAN, and NYGAARD, Circuit Judges

                               (Filed: May 25, 2016)
                             _____________________

                                    OPINION
                             _____________________


This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                          1
SMITH, Circuit Judge.

      This case comes to us on appeal from the District Court’s grant of

Appellees’1 motion to dismiss Appellant’s suit alleging malicious prosecution,

false arrest, false imprisonment, conspiracy to violate constitutional rights, and

municipal liability under 42 U.S.C. § 1983, and intentional infliction of emotional

distress under Pennsylvania law. The District Court agreed with the magistrate

judge’s report and recommendation and held that Appellant failed to allege

sufficient facts to infer that probable cause to arrest did not exist, and thus all of his

claims should be dismissed. For the reasons stated below, we will affirm.

                                            I.

      On March 13, 2013, a PNC Bank branch in Pittsburgh, Pennsylvania, was

robbed by an adult, Caucasian male wearing dark sunglasses. A female teller had

direct contact with the robber, while two male employees had indirect observations

of the robber. On March 14, the police department released a still photograph of

the bank robber, and on that same day received a phone call from Appellant’s

mother claiming that Appellant was the robber. On March 15, the police placed

Appellant’s photograph in four different photo arrays and showed it to the three


1
  Appellees are the City of Pittsburgh, police officers Nicholas J. Bobbs and Antonio
Ciummo, and John and/or Jane Does, two unknown supervisors in the City of Pittsburgh
Police Department. The individual defendants have been sued in their individual and
official capacities.

                                            2
bank employees. The female employee was unable to identify anyone, whereas

both male employees quickly identified Appellant as the robber. On March 26, the

police officers showed Appellant’s parole officer a still photograph from the

robbery and asked whether the person identified in the photograph was the

Appellant. The parole officer identified Appellant as the bank robber.

      The next day, on March 27, the police officers applied for an arrest warrant.

The affidavit of probable cause stated that on March 14 the police received a phone

call from a person who provided the name of Appellant as the man who robbed the

PNC Bank.      The affidavit also gave a summary of each bank employee’s

description of the robbery using the name of the Appellant as the robber. Finally,

it stated that Appellant “was put into a photo array and positively identified on

March 15, 2013, as the male that robbed the bank.” JA 62. The affidavit did not

say that the phone call came from Appellant’s mother and it did not include the

parole officer’s identification of Appellant. Appellant was arrested on the same

day and charged with two counts of robbery. After a two-day trial, a jury found

him not guilty on February 4, 2014.

      Appellant filed suit. The District Court agreed with the magistrate judge’s

report and recommendation that Appellant’s complaint contained insufficient

factual allegations to plausibly infer that probable cause was lacking for



                                         3
Appellant’s arrest, and therefore granted Appellees’ motion to dismiss all claims.

Appellant’s timely appeal followed.2

                                         II.

       Appellant argues that the affidavit upon which the arrest warrant was based

contained four material omissions that, if known to the magistrate judge who

approved the arrest warrant, would have negated probable cause in this case. The

four omissions alleged are: (1) that the female teller initially described the robber

as having braces, which Appellant does not have; (2) that the female teller was

unable to identify Appellant in the photo array; (3) that both male employees, who

did identify Appellant in the photo array, only saw the robber for a few seconds

and did not have direct contact with him; and (4) that the robber wore large

sunglasses during the commission of the crime, which, combined with his long

hair, made identification “extremely difficult.”

      The lack of probable cause is an element of each of Appellant’s claims for

relief. Thus, in order to survive a motion to dismiss, Appellant must adequately

allege “(1) that the police officer ‘knowingly and deliberately, or with a reckless

disregard for the truth, made false statements or omissions that create a falsehood

in applying for a warrant;’ and (2) that ‘such statements or omissions are material,


2
 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                          4
or necessary, to the finding of probable cause.’” Wilson v. Russo, 

,

786-87 (3d Cir. 2000) (quoting Sherwood v. Mulvihill, 

, 399 (3d Cir.

1997)). Even assuming Appellees had the requisite state of mind, the omissions

alleged are not “material,” because if they were included in the affidavit, probable

cause to arrest would still have existed.

      In determining whether an omission is material, we reconstruct the affidavit

and “insert the facts recklessly omitted, and then determine whether or not the

‘corrected’ warrant affidavit would establish probable cause.” 

Reedy v.

Evanson, 

, 215-16 (3d Cir. 2010). “Probable cause exists if there is a

‘fair probability’ that the person [has] committed the crime at issue.” 

. While “a positive identification by a victim witness, without more,

would usually be sufficient to establish probable cause . . . . [i]ndependent

exculpatory evidence or substantial evidence of the witness’s own unreliability that

is known by the arresting officers could outweigh the identification such that

probable cause would not exist.” 

3
  The magistrate judge and District Court failed to apply our test for materiality as laid
out in Wilson and reaffirmed in Reedy v. Evanson, 

(3d Cir. 2010), instead
concluding that the potentially exculpatory evidence was not “fundamental” evidence that
would completely exonerate the suspect. A quick read of Wilson, which similarly
involved one witness being unable to identify the defendant in a photo array, would
reveal that this was “the kind of thing the judge would wish to know.” Wilson v. Russo,

,788 (3d Cir. 2000) (quoting United States v. Jacobs, 

, 1235
(8th Cir. 1993)). Thus, as in Wilson, the next step should have been a reconstruction of
the affidavit. 

                                            5
      In Wilson, the Court was confronted with a similar situation: a photo array

was shown to two witnesses, one of whom immediately selected the defendant as

the perpetrator of the crime, while the other could not say with certainty that he

recognized any of them. 

The affidavit omitted: (1) a discrepancy

between the investigating officer’s conclusion that the robber was between 6’3”

and 6’5” and the defendant’s height of 5’11”; (2) the failure of one witness to pick

the defendant out of the array; and (3) the fact that another witness saw the

defendant at a different location when the defendant was purportedly at the scene

of the crime. 

791. The Court “weigh[ed] the inculpatory evidence

against any exculpatory evidence available to the officer” and then concluded that

the exculpatory facts were “not strong enough to undermine a finding of probable

cause.” 

Thus, this was within a class of cases where “a positive

identification was not fatally undermined by unreliability or exculpatory

evidence.” 

      Here, we have not one, but two positive identifications. The affidavit also

noted the phone call in which the caller identified Appellant as the robber.4 As in


4
  The affidavit failed to mention that the phone call came from Appellant’s mother or that
Appellant’s parole officer also identified Appellant from a still photograph of the bank
robbery. Appellant does not contest the magistrate judge and District Court’s reliance on
these identifications in this civil suit and only attacks their credibility. However, our
review is limited to what was contained in the affidavit for probable cause that was
submitted to a neutral magistrate in the criminal proceeding. United States v. Hodge, 

, 305 (3d Cir. 2001). Any inculpatory evidence that was not mentioned in the
                                            6
Wilson, another witness, the female teller, was unable to provide an identification.

She did not affirmatively identify someone else as the robber. See 

(noting that the case could turn out differently in such a scenario).                When

considering this omission in tandem with the other omissions alleged – the female

teller initially describing the robber as having braces, the male employees only

having a brief look at the robber, and the robber’s face being obstructed by large

sunglasses and long hair – their inclusion would not have altered the outcome of

the magistrate judge’s probable cause determination. These omissions may have

been useful as impeachment evidence at trial to challenge the accuracy of the

identifications, but they do not negate probable cause given the circumstances here,

which requires only a “fair probability” that a suspect has committed a crime. 

       Accordingly, because Appellant failed to allege facts sufficient to

demonstrate that probable cause was lacking, and because the lack of probable




affidavit “was evidently not a part of [the police officers’] probable cause determination.”

. Instead, when the arrest is done pursuant to a warrant, the
probable cause determination must “be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive enterprise of
ferreting out crime.” 

(quoting Johnson v. United States, 

, 13-14 (1948)).
                                             7
cause is an element of all six counts,5 we will affirm the District Court’s grant of

Appellees’ motion to dismiss.




5
 Because we will affirm the District Court’s decision that Appellant failed to allege facts
sufficient to infer that probable cause did not exist, we need not address the other
arguments raised by the parties.
                                            8