NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 09-2056
                                      ____________

                                   MARCY NAPIER,

                                                 Appellant

                                            v.

                  CITY OF NEW CASTLE; ANTHONY LAGNESE;
                     CHRISTOPHER BOUYE; JOHN DOE 1-10
                               ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 06-cv-01368)
                     District Judge: Honorable Gary L. Lancaster
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 22, 2010

     Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

                                (Filed: October 28, 2010)
                                     ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

      Marcy Napier appeals an order of the District Court entering judgment against her.

She contends that the District Court erred twice: first, by granting a motion to dismiss her
§ 1983 and state law claims for abuse of process; and second, by granting a motion for

summary judgment on her § 1983 and state law claims for malicious prosecution. Largely

for the reasons stated by the District Court, we will affirm.

                                              I.

       Because we write for the parties, we recount only the facts and procedural history

necessary to our decision.1

       On June 17, 2004, Anthony Lagnese and Christopher Bouye, officers in the

narcotics unit of the City of New Castle Police Department, met with a confidential

informant (CI), who had previously provided reliable information. The CI informed them

that he could buy drugs from a “Marie Napier” or “Marcy Napier”2 and a “Michael

Buxton,” so they set out to stage the drug buys. Lagnese positioned himself to see the

transaction, while Bouye was positioned to see Lagnese, but not the sellers. Lagnese then

observed the CI purchase $60.00 worth of crack cocaine from two women.

       Lagnese later examined the Pennsylvania driver‟s license identification


       1
         Although Napier appeals from both a motion to dismiss and a motion for
summary judgment, the differences between the facts considered at the motion to dismiss
stage (drawn from Napier‟s complaint and undisputed documents) and those considered
at the summary judgment stage (drawn from the complete record viewed in the light most
favorable to Napier) were not germane to the District Court‟s decisions at each stage.
       2
          The police report indicates the name “Marie Napier,” Bouye testified that the CI
gave the name “Marcy Napier,” and Lagnese testified that the CI gave both names. This
initial confusion about the names, however, did not substantially impact the subsequent
identification and probable cause issues underlying Napier‟s claims.

                                              2
photographs of Marcy Napier and determined that they resembled one of the women he

had seen selling drugs to the CI, a woman whom the CI had identified as Marie or Marcy

Napier. Therefore, Bouye and Lagnese filed criminal charges against Napier. On

October 1, 2004, three and one-half months after the buy, Napier was arrested at her

home. Lagnese observed the arrest and noticed that Napier looked different from his

memory of the woman he had observed selling drugs. Specifically, he believed that her

hair style and weight were different. He told Bouye about his observations, and they

discussed the possibility that such changes in appearance could occur in three and one-

half months. Following her arrest, Napier was taken to the Lawrence County Jail, strip

searched, photographed, and held for three days.

       Napier‟s preliminary hearing was originally scheduled for October 7, 2004, but it

was continued by the district attorney. The hearing was subsequently continued three

more times, while Napier‟s defense counsel and the district attorney discussed the

possibility of Napier submitting to a polygraph test. Napier finally took and passed the

polygraph test on March 15, 2005.

       Napier alleges that after the polygraph test, she had a meeting with Bouye and

Lagnese. Lagnese confirms that they spoke; Bouye denies that the meeting ever took

place. Both officers disagree with Napier as to the substance of the discussion.

According to Napier, Bouye apologized and told her that Lagnese knew, at the time of the

arrest, that she was not the person he had observed selling drugs. Napier testified:

                                             3
               He said -- Lagnese was sitting there; Bouye is standing up, pacing.
       He says: Marcy sit down. Can I please have a moment of your time? I said:
       Sure. He says: Marcy, I don‟t know what happened. He said: This has
       never happened to me before. I have to tell you what happened.
               He says: The day of your arrest -- he said: Marcy, Lagnese was out
       there in front of your house while they brought you out in handcuffs. He
       looked at your face and realized you weren‟t the girl that he ID‟d . . . two
       months before. Those were his exact words.
               I said: Why didn‟t he speak up and say something? He could have
       kept me from going to jail. My neighbors are out there screaming. I‟m
       crying, telling them that they have the wrong person. Half of the other
       cops, they were boggled too, because they knew me. They‟re like: Marcy,
       what‟s going on?
               So he said that Lagnese stood there: realized I wasn‟t the girl. I said:
       Why did he do that? He said: Well, he didn‟t know. I thought maybe he
       just didn‟t want to look embarrassed in front of his peers by admitting he
       had the wrong person.

App. 205-06. The district attorney subsequently withdrew the charges against Napier.

       On October 12, 2006, Napier filed a complaint in federal district court against the

Appellees, alleging nine state and federal causes of action. After Appellees moved for

dismissal or summary judgment on all the claims, the Magistrate Judge filed a Report and

Recommendation, recommending that: (1) the claims for false arrest, false imprisonment,

assault and battery, intentional infliction of emotional distress, and invasion of privacy be

dismissed on statute of limitations grounds; (2) the state law claims for negligence and

malicious prosecution, against the City, be dismissed pursuant to Pennsylvania‟s Political

Subdivision Tort Claims Act, 42 Pa. Cons. Stat. § 8241, et seq.; and (3) the claim for

abuse of process be dismissed for failure to state a claim. Nevertheless, the Magistrate

Judge recommended that the § 1983 malicious prosecution claim against all Appellees

                                              4
and the state law malicious prosecution claim against the officers not be dismissed. The

District Court adopted the Report and Recommendation as the Opinion of the Court.

Napier v. City of New Castle, et al., C.A. No. 06-1368, 

(W.D. Pa. July

3, 2007). After discovery, Appellees filed a motion for summary judgment on the

remaining malicious prosecution claims, which was granted in a second Report and

Recommendation, which also was adopted by the District Court. Napier v. City of New

Castle, et al., C.A. No. 06-1368, 

(W.D. Pa. Mar. 20, 2009).

                                             II.

                                             A.

       Napier appeals the dismissal of her abuse of process claims. We review de novo a

District Court‟s judgment granting a motion to dismiss pursuant to Rule 12(b)(6).

Ballentine v. United States, 

, 808 (3d Cir. 2007).3

       An abuse of process occurs when a party employs legal process against another

primarily to accomplish a purpose for which it was not designed. Gen. Refractories Co.

v. Fireman’s Fund Ins. Co., 

, 307 (3d Cir. 2003). “In contrast to a section

1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of process

lies where „prosecution is initiated legitimately and thereafter is used for a purpose other


       3
         Napier argues that the abuse of process claims should not have been dismissed on
statute of limitations grounds, but the District Court opinion actually dismissed them for
failure to state a claim under Rule 12(b)(6). Napier, 

, at *5-6 (W.D.
Pa. July 3, 2007).

                                              5
than that intended by the law.‟” Rose v. Bartle, 

, 350 n.17 (3d Cir. 1989)

(quoting Jennings v. Shuman, 

, 1217 (3d Cir. 1977)). Pennsylvania

recognizes a cause of action for abuse of process where “the defendant (1) used a legal

process against the plaintiff, (2) primarily to accomplish a purpose for which the process

was not designed; and (3) harm has been caused to the plaintiff.” Rosen v. Am. Bank of

Rolla, 

, 192 (Pa. Super. Ct. 1993). “„[T]here is no action for abuse of

process when the process is used for the purpose for which it is intended, but there is an

incidental motive of spite or an ulterior purpose of benefit to the defendant.‟” 

(SECOND) OF TORTS § 682 cmt. b (1977)).

       As the District Court correctly determined, Napier‟s abuse of process claim alleged

that the officers filed criminal charges and arrested her to avoid embarrassment and to

conceal the fact that they were unsure they had identified the right person. All of

Napier‟s complained-of injuries occurred in connection with the initial charge and arrest.

But the initial filing of criminal charges and her arrest, if improper, would constitute

malicious prosecution, not abuse of process. See 

n.17. Unlike her

original complaint, Napier now argues that “it is the subsequent acts after the filing and

not the institution of a criminal proceeding which gives rise to the tort of abuse of

process” and that “throughout each stage of the proceedings, the Appellees continued the

prosecution against Appellant Napier even though they knew they had arrested the wrong




                                              6
person.” Appellant‟s Br. 19, 21.4 As the District Court recognized, however, “„there is

no liability where the defendant has done nothing more than carry out the process to its

authorized conclusion, even though with bad intentions.‟” Napier, 

*6

(W.D. Pa. July 3, 2007) (quoting Evans v. Durham Life Insurance Co., 

*2 (E.D. Pa. 2001)).

       Accordingly, the District Court did not err when it dismissed Napier‟s claims for

abuse of process.

                                             B.

       Napier also appeals the District Court‟s summary judgment on her malicious

prosecution claims. We review a summary judgment de novo. Lexington Ins. Co. v. W.

Pa. Hosp., 

, 322 n.2 (3d Cir. 2005). We “apply the same test required of the

district court” and view inferences to be drawn from the underlying facts in the light most

favorable to the nonmoving party. Groman v. Twp. of Manalapan, 

, 633 (3d

Cir. 1995).

       A claim of malicious prosecution under § 1983 requires, inter alia, that the

proceeding was initiated without probable cause. Estate of Smith v. Marasco, 

, 521 (3d Cir. 2003). Similarly, in Pennsylvania, “[i]n order to sustain a cause of

action for malicious prosecution relating to a criminal prosecution, the plaintiff must


       4
        Not only was this claim not a part of Napier‟s original complaint, there is no
record evidence of which party sought or obtained the multiple continuances.

                                             7
prove that the defendant (1) instituted proceedings against the plaintiff, (2) without

probable cause, (3) with malice, and (4) that the proceedings were terminated in favor of

the plaintiff.” Corrigan v. Cent. Tax Bureau of Pa., Inc., 

, 505 (Pa.

Commw. Ct. 2003) (citing Turano v. Hunt, 

, 824 (Pa. Commw. Ct. 1993)).

       As the District Court recognized, in this case both causes of action turn on whether

probable cause existed to initiate proceedings against Napier. Probable cause for

purposes of malicious prosecution actions has been defined as: “reasonable ground of

suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the

same situation in believing that the party is guilty of the offense.” Thomas v. E.J.

Korvette, Inc., 

, 474 (3d Cir. 1973). An arrest was made with probable

cause if “at the moment the arrest was made . . . the facts and circumstances within [the

officers‟] knowledge and of which they had reasonably trustworthy information were

sufficient to warrant a prudent man in believing that [the suspect] had committed or was

committing an offense.” Beck v. Ohio, 

, 91 (1964). The inquiry is an

objective one, and “an arresting officer‟s state of mind (except for the facts that he

knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 

, 153 (2004).

       Napier tries to minimize the importance of probable cause for her arrest, stating

that “[i]n this case, the issue of probable cause for the arrest of Appellant is not of

concern,” Appellant‟s Br. at 23, presumably because the record evidence shows that

                                               8
probable cause existed. Because the lack of probable cause is an element of a malicious

prosecution claim, the existence of probable cause for the arrest invalidates that claim.

Estate of 

; Strickland v. University of Scranton, 

, 984

(Pa. Super. Ct. 1997). At the time of the arrest, Lagnese knew that Napier had been

identified by the CI, that he had witnessed a woman selling drugs who looked like

Napier‟s driver‟s license photograph, that Napier resembled the woman he had seen

selling drugs—albeit with a different hairstyle and weight—and that it had been three and

one-half months since he observed the woman selling drugs. Regardless of whether

Lagnese subjectively suspected that Napier was not the woman he had observed selling

drugs, these circumstances are sufficient for a reasonable officer to believe that Napier

was guilty of the offense, and therefore establish probable cause for the arrest.5

       Napier responds that even though there was probable cause for the arrest, the

officers can be found liable for malicious prosecution if they “„knowingly or with

reckless disregard for the truth concealed exculpatory evidence from or provided false or

misleading reports to the prosecutor or otherwise interfered with the prosecutor‟s ability

to exercise independent judgment.‟” Appellant‟s Br. 23 (quoting Vassallo v. Timoney,


       5
        Other record evidence—including Napier‟s testimony that her driver‟s license
photograph resembled a known local drug dealer, and Napier‟s sister‟s testimony that the
photograph resembled a different known local drug dealer—was not known to Lagnese at
the time, and therefore does not contribute to or detract from the reasonableness of his
belief. But it does potentially explain any error of identification on his part.


                                              9


, at *7 n.8 (E.D. Pa. Oct 15, 2001). Napier‟s reliance on Vassallo is

misplaced. Like Vassallo, where the court found no malicious prosecution because there

was no evidence that the defendant police officers had withheld exculpatory evidence

from the prosecutor, there is no record evidence showing that Appellees withheld

exculpatory evidence from or provided false or misleading reports to the district attorney.

Napier argues that Lagnese and Bouye should have informed the district attorney of the

differences in appearance noted by Lagnese at the time of her arrest. Napier characterizes

this information as Lagnese‟s knowledge “on the day of the arrest that Appellant Napier

was not the same person who participated in the drug buy.” Appellant‟s Br. 24. But the

record simply indicates that Lagnese noted differences in appearance, which is, in the

words of the District Court, “not the equivalent of knowing that Napier was not the

woman who engaged in the drug buy.” Napier, 

, at *5.6 Not informing

the district attorney of a momentary doubt, which had been subsequently dispelled and

which did not eliminate the probable cause for the arrest, cannot constitute knowingly or

with reckless disregard for the truth concealing exculpatory evidence from the prosecutor



       6
         The only record evidence even suggesting that Lagnese “knew” that Napier was
the wrong person is Napier‟s own, ambiguous deposition testimony that Bouye told her
that Lagnese had told him that “[h]e looked at your face and realized you weren‟t the girl
that he ID‟d.” App. 206. The District Court rightly notes that this self-serving testimony
as to information of which Napier had no direct knowledge cannot create a material issue
of fact that allows this case to survive summary judgment. Napier, 

, at
*6 (citing Anderson v. Liberty Lobby, 

, 250 (1986); Quiroga v. Hasbro, Inc.,

                                            10
or otherwise interfering with the prosecutor‟s ability to exercise independent judgment.

In sum, because Napier cannot establish that the proceedings lacked probable cause when

initiated, she cannot maintain a claim for wrongful prosecution.

                                            III.

       Finally, Napier argues that the City of New Castle should be held liable because

the officers were acting pursuant to a city custom or policy. See Monell v. Dept. of Soc.

Servs., 

(1978). However, because the District Court correctly found that

there was no constitutional violation for which the officers were liable under § 1983, the

City cannot be held vicariously liable. See, e.g., Williams v. Borough of W. Chester, Pa.,

, 467 (3d Cir. 1989).

                                            IV.

       For the foregoing reasons, we find that the District Court did not err in dismissing

Napier‟s claims for abuse of process or in granting summary judgment as to her claims of

malicious prosecution. Accordingly, we will affirm the judgment of the District Court.

, 500 (3d Cir. 1991); Blair v. Scott Specialty Gases, 

, 608 (3d
Cir. 2002)).

                                            11