NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-2570
                                     _____________

                                  RASHEED WATERS,
                                       Appellant

                                             v.

      CHELTENHAM TOWNSHIP d/b/a CHELTENHAM TOWNSHIP POLICE
       DEPARTMENT; JOHN BARR, Individually and in his official capacity
                        as Detective for CTPD
                           ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civ. No. 2-16-cv-00216)
                    District Judge: Honorable Timothy J. Savage
                                  ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 16, 2017
                                  ______________

     Before: GREENAWAY, JR., SHWARTZ, and GREENBERG, Circuit Judges.

                                   (Filed: July18, 2017)
                                     ______________

                                        OPINION*
                                     ______________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Rasheed Waters sat in jail for more than a year awaiting trial for a crime he did not

commit. He had a verifiable alibi, supported by video surveillance, which he claims the

investigating officer ignored. At trial, the trial judge reviewed the footage of the video

surveillance and dismissed the criminal charges. Waters, almost two years later, brought

this malicious prosecution action pursuant to 42 U.S.C. § 1983 and Pennsylvania

common law against the municipality and the officer that investigated the crime.

       Waters initially asserted four claims, but after he amended his complaint, only one

claim remained: malicious prosecution. The District Court dismissed the claim because

Waters failed to plead that the criminal proceeding was initiated without probable cause,

a necessary element in a malicious prosecution claim. We agree, and therefore, will

affirm the District Court.

I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       A.     Factual Background

       In August 2012, Waters was apartment-sitting for his mother, who was away on

vacation with her fiancé. The fiancé died during the vacation; his daughter, in turn, went

to Waters’s mother’s apartment ostensibly to collect his belongings. Waters soon

learned—from his mother and the decedent’s sister—that the daughter was not supposed

to remove those items. So he subsequently called the police to report the items missing.

       About one month later, Detective John Barr of the Cheltenham Township (the

“Township”) Police Department called Waters and questioned him about one of the
                                              2
missing items—a firearm. Waters told Barr that he had already told the police everything

he knew, and that if Barr wanted to learn more, he should question the decedent’s

daughter. But Barr persisted, questioning Waters as if he were a suspect. Waters became

frustrated, shouted at Barr, and told him not to call him again.

       Another month passed when, while driving through Upper Darby, Pennsylvania,

Waters was pulled over by the police. The officers told Waters that they were arresting

him pursuant to a warrant issued in Montgomery County, Pennsylvania, where the

Township is located. The Upper Darby police held Waters at the station for hours

without telling him why he was arrested.

       Waters was transferred to the Township shortly after midnight. At some point

while Waters was sitting in his holding cell, Barr appeared and told him, “[f]or someone

being detained for what you’re being detained for, you seem awfully calm.” App. 4 ¶ 16.

Barr went on to say that he had already located the missing firearm, and that Waters was

being held for three counts of burglary. Waters asked to speak with an attorney. Barr

said nothing and walked away.

       Waters was transferred to the Montgomery County Correction Facility the next

day. Waters received the substance of the burglary charges against him and the grounds

for the arrest warrant. The basis for probable cause was a single eyewitness, who would

prove unreliable at trial. Waters soon recalled, and told Barr, that at the time and date of

the alleged burglaries, he was out shopping, and that the stores he was shopping at had

surveillance systems that could confirm his presence. Barr ignored the alibi.
                                              3
       Waters spoke with his trial attorney, who, by the end of the week, obtained the

surveillance footage that confirmed Waters’s alibi. The trial attorney told Barr, but Barr

again ignored the alibi.

       At trial, Waters’s attorney presented the trial judge with the surveillance footage

and an employee from one of the stores to authenticate the footage. The trial court judge

then dismissed the case and admonished the Defendants for bringing it forward. Waters

was finally released on January 27, 2014, about sixteen months after he was arrested.

       B.     Procedural History

       Waters filed the instant § 1983 action in federal district court alleging malicious

prosecution, false arrest, false imprisonment, and Monell claims.1 The Township and

Barr (the “Defendants”) then moved to dismiss the false arrest and false imprisonment

claims as time barred, and moved for a more definite statement as to the malicious

prosecution claim.2 Waters, in response, filed an amended complaint (“Amended




       1
         While he was in custody, Waters brought a separate pro se § 1983 action.
Complaint, Waters v. Barr, No. 13-cv-672 (E.D. Pa. Mar. 8, 2013), ECF No. 7. The
District Court stayed the proceeding until Waters informed the Court that his criminal
case had been resolved. Order, Waters v. Barr, No. 13-cv-672 (E.D. Pa. Mar. 13, 2013),
ECF No. 8. The District Court ended up dismissing the pro se action for failure to
prosecute because Waters never contacted the District Court after his release. Order,
Waters v. Barr, No. 13-cv-672 (E.D. Pa. Mar. 13, 2013), ECF No. 11.
       2
       Waters alleges that his malicious prosecution claim is actionable through § 1983
and Pennsylvania common law.
                                             4
Complaint”) that contained only the malicious prosecution claim, with some additional

factual allegations.3 The Defendants answered and moved for judgment on the pleadings.

       The District Court granted the Defendants’ motion, finding that the “criminal

proceedings were initiated by an arrest warrant based upon an eyewitness identification

of Waters as the perpetrator.” Waters v. Cheltenham Twp., No. 16-216, 

, at *3 (E.D. Pa. Apr. 20, 2016). And “[t]here [were] no allegations that Barr

knowingly or recklessly made false statements or omissions in applying for the warrant.”

failed to “establish an essential element of a malicious prosecution

claim—lack of probable cause.” 

appeal followed.

II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We

have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       Our review of a district court’s order granting a Federal Rule of Civil Procedure

12(c) motion for judgment on the pleadings is plenary. See, e.g., Caprio v. Healthcare

Revenue Recovery Grp., LLC, 

, 146 (3d Cir. 2013). Because this Rule 12(c)

motion is based on the theory that the plaintiff failed to state a claim, we will apply the

same standard that we apply to a Rule 12(b)(6) motion to dismiss. 

And

“[w]e [will] grant the motion only if, viewing all the facts in the light most favorable to

the nonmoving party, no material [dispute] of fact remains and the moving party is

       3
         The District Court denied Defendants’ motion to dismiss as moot, presumably in
light of Waters filing the Amended Complaint.

                                              5
entitled to judgment as a matter of law.” Knepper v. Rite Aid Corp., 

, 257

(3d Cir. 2012).

III.   ANALYSIS

       For Waters to prevail on a malicious prosecution under § 1983, he must prove five

elements:

       (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding
       ended in plaintiff’s favor; (3) the proceeding was initiated without probable cause;
       (4) the defendants 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, 

, 521 (3d Cir. 2003).4 The District Court ruled

that Waters failed to establish the third element—the proceeding was initiated without

probable cause.5 We agree.

       Here, Waters was arrested pursuant to a warrant, which generally establishes the

proceeding was initiated with probable cause. But “an arrest warrant issued by a

magistrate or judge does not, in itself, shelter an officer from liability for false arrest.”

Wilson v. Russo, 

, 786 (3d Cir. 2000). Where a plaintiff challenges the basis

       4
          The first four elements are the same under Pennsylvania common law. See
Merkle v. Upper Dublin Sch. Dist., 

, 791–92 (3d Cir. 2000) (observing that a
plaintiff alleging a § 1983 claim for malicious prosecution must show a Fourth
Amendment violation, in addition to the four elements of common law malicious
prosecution).
       5
         We note, but do not address, Defendants’ other arguments: that Waters cannot
show that Barr “initiated the proceedings,” Appellees’ Br. at 11; that Barr is entitled to
qualified immunity, 

and that Waters cannot establish a valid Monnell claim
against the Township, 

                                                6
for probable cause, as Waters does, we must determine whether the 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.” 

we then determine

whether “such statements or omissions are material, or necessary, to the finding of

probable cause.” 

       Waters does not claim that Barr made any material false statements or omissions.

Instead, Waters attacks the basis for probable cause four different ways, but none of them

are sufficient to support his malicious prosecution claim.

       First, Waters alleges that the eyewitness upon whom the police relied was

unreliable, and thus, his identification could not have formed the basis for probable cause.

He points to cases where courts reviewed the credibility of witnesses that law

enforcement relied on to obtain search warrants. These cases are inapposite because it

was reasonable for the police to believe the eyewitness was telling the truth when they

initiated the prosecution. See Sharrar v. Felsing, 

, 818–19 (3d Cir. 1997)

(“When an officer has received his information from some person—normally the putative

victim or an eye witness[sic]—who it seems reasonable to believe is telling the truth, he

has probable cause.” (quoting Grimm v. Churchill, 

, 675 (7th Cir. 1991))),

abrogated on other grounds by Curley v. Klem, 

(3d Cir. 2007).

       Second, Waters asserts that the police “could (and should) have easily obtained the

video evidence on their own without any assistance from Plaintiff’s criminal defense

attorney.” App. 5 ¶ 22. However, at the time Barr applied for the arrest warrant, he was
                                             7
unaware of this footage; he had no reason to know that Waters was out shopping, let

alone that there was footage to confirm Waters’s alibi.

       And even though the footage ultimately led to the withdrawal of criminal charges,

we still determine whether the proceeding was initiated without probable cause “based on

the information available to officers at the time the [arrest] warrant was sought.”

(emphasis added). So once Barr had a reasonable basis to

believe there was probable cause, he was not constitutionally required to “investigate

independently every claim of innocence,” such as “mistaken identity.” Baker v.

McCollan, 

, 146 (1979). Therefore, the exculpatory footage that Waters

provided the police post-warrant application does not establish the third element of his

malicious prosecution claim.

       Third, Waters claims the police erred by not reviewing the exculpatory video after

his attorney purportedly gave Barr the video. See Appellant’s Br. at 21 (“An officer is

not free to disregard plainly exculpatory evidence even if substantial inculpatory

evidence (standing alone) suggest that probable cause exists.”). He cites two cases for

support: Burke v. Town Of Walpole, 

(1st Cir. 2005) and Kuehl v. Burtis, 

(8th Cir. 1999). Both are distinguishable.

       In Burke, a police officer that was preparing a warrant application intentionally or

recklessly withheld exculpatory evidence; thus, for purposes of summary judgment

analysis, the plaintiff proffered evidence to support a finding that he was arrested without

probable cause. 

–84. But unlike what Waters alleges here, the
                                             8
officer in Burke knew of the exculpatory evidence at the time of the warrant application.

       Then there is Kuehl, where the Eighth Circuit found that a police officer “ignored

plainly exculpatory evidence that negated the intent required for simple 

. The Court faulted the police officer for ignoring (1) the plaintiff’s

explanation for why she shoved the purported victim; (2) the plaintiff’s sizeable bruise

over her left eye (caused by a punch from the purported victim); and (3) the testimony of

another eyewitness that would have corroborated the plaintiff’s account of what

happened before the officer arrested the plaintiff. 

comparison falls

short because the substantial eyewitness testimony in Kuehl was available to the police

officer before he arrested the plaintiff.

       Finally, Waters floats a theory for relief that was not spelled out in the Amended

Complaint: prolonged detention in the face of exculpatory evidence. See Appellant’s Br.

at 21 (“Post-arrest, Waters was length[ily] imprisoned awaiting trial notwithstanding the

existence of an exculpatory video.”); 

innocence via alibi, and

the video supporting that alibi gives rise to a 14th amendment post-arrest claim in

malicious prosecution for unlawful[ly] prolonged detention.”).

       This unlawfully prolonged detention theory is distinct from the malicious

prosecution claim that Waters pled and briefed before the District Court. See, e.g., Russo

v. City of Bridgeport, 

, 209 (2d Cir. 2007) (describing false imprisonment

claim as covered by the Fourth Amendment and sufficiently alleged given “(1) the length
                                              9
of time of [plaintiff’s] wrongful incarceration, (2) the ease with which the evidence

exculpating [plaintiff]—which was in the officers’ possession—could have been checked,

and (3) the alleged intentionality of [the investigating officers’] behavior”); Sanders v.

English, 

, 1162 (5th Cir. 1992) (describing illegal detention, or false

imprisonment, as a claim where defendant-officer fails to release plaintiff “even after he

knew (or should have known) that [plaintiff] ha[s] been misidentified”).

       Because this is a claim that Waters did not raise in the Amended Complaint or in

his brief before the District Court, it is not properly before this Court. See New Jersey v.

United States, 

, 471 (3d Cir. 1996).

IV.    CONCLUSION

       For these reasons, we will affirm the District Court’s judgment.




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