MEMORANDUM

JUAN R. SáNCHEZ, District Judge.

Philadelphia Police Lieutenant Daniel Brooks, the sole remaining Defendant in this civil rights action brought pursuant to 42 U.S.C. § 1983, seeks entry of summary judgment in his favor as to pro se Plaintiff David C. Tate's claims that Brooks fabricated identification evidence against him and maliciously prosecuted him for firearm-related offenses. Tate cross-moves for summary judgment on both claims. Because Tate has failed to produce evidence from which a reasonable jury could find Brooks violated his constitutional rights, Brooks's motion is granted, and Tate's motion is denied.

FACTS1

Tate's claims arise out of his arrest and prosecution on firearm-related charges of which he was ultimately acquitted following a bench trial in the Court of Common Pleas of Philadelphia County in September 2012. The firearm in question was recovered from the Beaumont Lounge, a Philadelphia bar, in the early morning hours on Sunday, March 6, 2011. At that time, then-Sergeant Brooks was supervising a team of four officers conducting a "nuisance bar enforcement detail," targeting certain bars that were deemed to be nuisances based on civilian complaints, including the Beaumont Lounge. See Hr'g Tr. 54, July 2, 2012.

Upon arriving at the Beaumont Lounge, Brooks heard music coming from inside and observed people drinking outside the bar. After calling for a patrol wagon, Brooks and his team entered the bar whereupon a large group of males standing around a pool table threw down their pool cues and ran to the men's room. Brooks and the other officers followed the group, and when Brooks opened the door to the men's room, a small room equipped with only a single toilet and sink, at least six men rushed out. Although the men attempted to run past the officers, Brooks and his team were able to detain three of them.

Brooks then entered the men's room, where he observed marijuana in the toilet and more marijuana and a pistol on the floor around the toilet. The pistol was a Ruger 9-millimeter semi-automatic pistol bearing the serial number 317-68665.

After surveying the bathroom, Brooks had the three detained men secured and brought outside to the sidewalk in front of the bar. Sometime later, while Brooks was speaking with uniformed officers outside the bar, a man approached Brooks and asked if he could have house and car keys belonging to one of the detained men, claiming the man was his cousin. Although Brooks had seen the man who approached him before, he did not know the man's name, and he did not give the man the keys as the cousin did not wish to do so. Brooks later identified the man who approached him as Tate.

Later in the day on March 6, Sherrae Luise-Johnson reported to the Philadelphia Police Department that a gun had been stolen in a burglary of her home. The gun Luise-Johnson reported as stolen was the same gun that was recovered from the bathroom of the Beaumont Lounge.

The following day, on Monday, March 7, 2011, Special Agent Joseph Hasara, a member of the Pennsylvania Attorney General's Gun Violence Task Force, took over the investigation of the gun. Brooks thereafter did nothing further to investigate the gun.2

Hasara determined that the gun had been purchased a few days earlier, on March 3, 2011, by Luise-Johnson at the Tree Line Gun Shop in Norristown, Pennsylvania. Hasara then went to the Tree Line Gun Shop, where he obtained the paperwork completed by Luise-Johnson and reviewed video surveillance footage of the transaction. The video depicted Luise-Johnson entering the store with a man — later identified as Tate — behind her. After entering the store, Luise-Johnson and the man accompanying her approached the counter, and Luise-Johnson walked down the counter a few steps. The man accompanying Luise-Johnson then called her back to him and pointed at least twice to a firearm in the counter, which Luise-Johnson purchased.

As part of his investigation, Hasara reviewed photographs of the three men who were detained at the Beaumont Lounge3 and determined that none of them was the man depicted in the surveillance video. Hasara also made several attempts to interview Luise-Johnson at her residence. During one of the those attempts, on April 13, 2011, Hasara and another agent entered the open door to the residence's enclosed front porch, knocked on the inner door to the home, and were waiting for a response when another man approached the home, leaving his car double parked in the street with the engine running. The man started to enter the door to the front porch, where Hasara and his colleague were standing, but quickly turned, walked back to his car, and drove away. Hasara recognized the man as the same person who accompanied Luise-Johnson to the gun store, and he and his colleague made note of the man's license plate number.

Later that day, Hasara ran a Bureau of Motor Vehicles (BMV) check on the license plate and determined that the car was registered to David Tate. Hasara also conducted a background investigation of Tate, obtaining a copy of his current driver's license, from which Hasara determined Tate was the man depicted in the surveillance video, and his prior criminal record, which included convictions for third-degree murder, voluntary manslaughter, and other offenses.

On April 18, 2011, Hasara and another agent interviewed Luise-Johnson at the police station. When confronted with the video from the gun store, Luise-Johnson told the agents that she had purchased the gun for Tate in exchange for payment of $1,000. Luise-Johnson recounted that Tate had driven her to the gun store, told her what kind of gun to buy, and given her the cash to pay for the gun. After she purchased the gun, Tate drove her home and then left with the gun and ammunition.

On April 21, 2011, Hasara contacted Brooks by phone about the events at the Beaumont Lounge on March 6, 2011. After speaking with Hasara by phone, Brooks met with Hasara in person. During one of these interactions, at Hasara's request, Brooks viewed Tate's driver's license photo and identified Tate as the man who had approached him outside the Beaumont Lounge about obtaining his cousin's keys.4 Brooks did not identify Tate as having been inside the bar on the night in question. Hasara took a handwritten statement from Brooks during their in-person meeting, but Brooks did not sign the statement or the photograph he identified as depicting Tate, believing that, as a police officer, he was not required to do so.5 Apart from speaking to Hasara by phone and in person, Brooks had no other involvement in Hasara's investigation regarding the gun recovered from the bathroom of the Beaumont Lounge.

Approximately one week later, on April 27, 2011, Hasara obtained a warrant for Tate's arrest for numerous offenses related to the purchase of the gun, including criminal conspiracy, violations of the Uniform Firearms Act (including possession of a firearm by a felon), tampering with public records, and unsworn falsification to authorities. Hasara sought the warrant based on Luise-Johnson's statement, his conversation with Brooks, the video surveillance footage from the gun store, and his sighting of Tate at Luise-Johnson's home on April 13, all of which contributed to his affidavit of probable cause. Tate was arrested on May 9, 2011, when he came to the police station to retrieve his car, which had been impounded after police spotted it outside the Beaumont Lounge a few days earlier.6

Prior to trial, Tate's counsel moved to suppress Brooks's out-of-court identification of Tate as having been present at the Beaumont Lounge on the night the gun was recovered on the basis that the identification procedure used by Hasara — i.e., having Brooks view a single photo of Tate — was unduly suggestive and led to an unreliable identification. See Suppression Hr'g Tr. 3, July 2, 2012. Defense counsel also moved to suppress any in-court identification of Tate by Brooks for lack of an independent basis for such an identification. See id. Following a suppression hearing on July 2, 2012, the trial court granted the motion to suppress in an order issued on August 14, 2012.7 See Commonwealth v. Tate, No. CP-51-CR-0010576-2011, Docket at 9-10. The case proceeded to a bench trial on September 12, 2012, following which the trial court adjudged Tate not guilty of all charges. See id. at 10.

In August 2014, Tate, who was then incarcerated on other charges, commenced the instant civil action. In his original Complaint, Tate asserted claims against six defendants: the Assistant District Attorney (ADA) who prosecuted the underlying criminal case, Special Agent Hasara, an unidentified Philadelphia police sergeant (later determined to be now-Lieutenant Brooks), the City of Philadelphia, the Philadelphia District Attorney's Office, and the Philadelphia Police Department. By Order of August 11, 2014, the claims against the ADA, the DA's Office, and the Police Department were dismissed with prejudice, and the claims against the City — as well as any claims for false arrest and imprisonment against the two individual Defendants — were dismissed without prejudice. Order, Aug. 11, 2014, ECF No. 2. Tate thereafter filed an Amended Complaint, asserting claims against the City, Hasara, and the unidentified police sergeant.8 In August 2015, the Court dismissed the claims against the City with prejudice and declined to reconsider its earlier dismissal of the false arrest and imprisonment claims. Order, Aug. 3, 2015, ECF No. 17.

Although Tate's § 1983 claims against Hasara and the unidentified police sergeant were not dismissed, as of August 2015, neither Defendant had been served, Hasara because Tate had not provided an address at which service could be made and the police sergeant because Tate had not yet identified him.9 In September 2015, Tate identified Brooks as the previously unidentified police sergeant and, after one failed service attempt and an in-court status conference, in which Tate participated by videoconference, the City of Philadelphia Law Department eventually accepted service for Brooks in February 2016. During the status conference, the City advised the Court and Tate that Hasara had been employed by the Pennsylvania Attorney General's Office, not the City, at the time of the events in question. While the parties contemplated that Tate would use this information to serve Hasara, the Court subsequently learned that Special Agent Hasara had retired from the Attorney General's Office in September 2015 and passed away in December 2015. Tate has since elected to pursue only his claims against Brooks.

As it pertains to Brooks, Tate's Amended Complaint focuses on Brooks's allegedly false identification of Tate outside the Beaumont Lounge. Tate also faults Brooks for failing to collect video surveillance evidence from the bar and not asking the other officers who were present at the bar whether they saw Tate there at the time the drugs and gun were recovered. Construing Tate's allegations liberally, the Court has interpreted the Amended Complaint to assert a Fourteenth Amendment fabrication of evidence claim and a Fourth Amendment malicious prosecution claim against Brooks. Following a period of discovery, both parties have moved for summary judgment.

DISCUSSION

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material" facts are those facts "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the [non-moving] party." Id.

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, "the non-moving party must present more than a mere scintilla of evidence; there must be evidence on which the jury could reasonably find for the [non-movant]." Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (alteration in original) (citation and internal quotation marks omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

In evaluating a motion for summary judgment, a court must "view the facts in the light most favorable to the non-moving party and must make all reasonable inferences in that party's favor." Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Where, as here, cross-motions for summary judgment are filed, "the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016) (alteration omitted) (quoting 10A Charles Alan Wright et al., Federal Practice & Procedure § 2720 (3d ed. 2016)).

As to Tate's fabrication of evidence claim, in Black v. Montgomery County, decided during the pendency of this case, the Third Circuit Court of Appeals held "an acquitted criminal defendant may have a stand-alone fabricated evidence claim against state actors under the due process clause of the Fourteenth Amendment if there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged." 835 F.3d 358, 371 (3d Cir. 2016). In defining the contours of such a claim, the Court of Appeals has stressed that there are "hurdles facing a plaintiff alleging a due process violation for fabrication of evidence." Id. at 372. To survive a motion for summary judgment on such a claim, a plaintiff must provide "persuasive evidence" that the evidence in question was fabricated. Id. Specifically,

Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014). The plaintiff must also "demonstrate that the fabricated evidence `was so significant that it could have affected the outcome of the criminal case.'" Black, 835 F.3d at 372 (quoting Halsey, 750 F.3d at 295). Given these hurdles, the Court of Appeals has repeatedly observed that "it will be an unusual case in which a police officer cannot obtain a summary judgment in a civil action charging him with having fabricated evidence used in an earlier criminal case." Id. (quoting Halsey, 750 F.3d at 295). Measured against these standards, Tate's claim that Brooks fabricated his identification of Tate fails.

As an initial matter, Tate has not produced the requisite "persuasive evidence" of fabrication. To support his claim of fabrication, Tate points to (1) the fact that Brooks's identification was suppressed; (2) the discrepancies in Brooks's and Hasara's suppression hearing testimony regarding the circumstances in which Brooks identified Tate; (3) Brooks's failure to sign his statement or Tate's photo; and (4) Brooks's failure to ask any of the other officers at the bar whether they had seen Tate there. But none of these facts support the inference that Brooks knew his identification was incorrect.

That the identification was suppressed suggests only that the state trial court found the identification procedure used by Hasara — which involved showing Brooks a single photograph of Tate — was unnecessarily suggestive and that the resulting identification was unreliable. See United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006) ("An identification procedure that is both (1) unnecessarily suggestive and (2) creates a substantial risk of misidentification violates due process."); see also Hr'g Tr. 3, July 2, 2012 (seeking suppression of the identification on the basis that the "photograph procedure was unduly suggestive" and led to "an unreliable identification process"). It does not establish that the identification was necessarily incorrect, much less knowingly so, and there is nothing in the record to suggest that the trial court believed Brooks fabricated the identification. The mere fact that the identification was suppressed thus does not support the conclusion that Brooks "w[as] aware that the identification was incorrect, and . . ., in effect, offered the evidence in bad faith." Halsey, 750 F.3d at 295.

Tate's focus on the minor discrepancies in Hasara's and Brooks's suppression hearing testimony is also misplaced. At the hearing, both witnesses testified that they had an initial phone conversation in April 2011, followed by an in-person meeting, and that Brooks identified Tate after viewing a single BMV photograph at Hasara's request. That the witnesses recalled differently whether Brooks made the identification during the initial phone call or the subsequent in-person meeting is unremarkable, particularly given that more than a year passed between the identification and the suppression hearing. Contrary to Tate's assertion, the difference in recollection as to how and where the identification was made does not show that Brooks lied to the court at the suppression hearing and certainly does not support the inference that the identification itself was knowingly false.

The remaining evidence cited by Tate is similarly unavailing. As to Brooks's failure to sign his statement and Tate's photograph, it is not even clear that Brooks's conduct was procedurally improper, as Tate offers no evidence to rebut Brooks's suppression hearing testimony that police officers generally are not required to sign their statements. See Hr'g Tr. 69, July 2, 2012. At best, this evidence suggests sloppiness, not fabrication. And Tate provides no explanation why Brooks's failure to ask any of the other officers at the scene whether they had seen Tate at the bar has any bearing on the veracity of Brooks's own identification of Tate.

Nor has Tate produced evidence from which a jury could find there is a reasonable likelihood that, absent Brooks's identification, he would not have been charged. At the time Tate was arrested, Hasara had determined that the gun recovered from the bar had been purchased by Luise-Johnson at the Tree Line Gun Shop, and Luise-Johnson had admitted that she purchased the gun for Tate, who had a prior felony conviction for third-degree murder, in exchange for a payment of $1,000. Moreover, surveillance video from the gun shop corroborated Luise-Johnson's account, showing Luise-Johnson in the shop with Tate purchasing a gun Tate had picked out. As Hasara stated at the suppression hearing, based on this evidence, there was ample basis to charge Tate, even without evidence connecting him to the Beaumont Lounge.10 See id. at 35; see also id. at 40 (stating Hasara would have arrested Tate whether or not Brooks identified him, based on the other evidence in the record). And the fact that the case continued to trial after Brooks's identification was suppressed demonstrates that the charges against Tate did not hinge on Brooks's identification. As such, Tate has failed to establish a meaningful connection between Brooks's identification and the ensuing charges.

Because Tate has not presented evidence from which a reasonable jury could find either that Brooks's identification was fabricated or that absent the identification, Tate would not have been charged, summary judgment in favor of Brooks is warranted as to Tate's fabricated evidence claim.

As to Tate's malicious prosecution claim, to prevail on such a claim, a plaintiff must establish "(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in [the plaintiff's] favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant 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." Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007). Failure to satisfy any one of these elements is fatal to a malicious prosecution claim. See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc).

Brooks argues summary judgment is warranted as to Tate's malicious prosecution claim because Tate has failed to produce evidence on which a jury could find in his favor on the initiation, probable cause, and malice elements of the claim. The Court agrees.

With respect to the initiation element, although responsibility for initiating criminal proceedings generally lies with prosecutors, rather than police officers, "[a] police officer can be held liable for malicious prosecution if he fails to disclose exculpatory evidence to prosecutors, makes false or misleading reports to the prosecutor, omits material information from the reports, or otherwise interferes with the prosecutor's independent judgment in deciding whether to prosecute." Lennon v. Sharon Hill Borough, No. 12-6701, 2014 WL 1395038, at *5 (E.D. Pa. Apr. 10, 2014) (citation and internal quotation marks omitted); see also Halsey, 750 F.3d at 297 ("It is settled law that `officers who conceal and misrepresent material facts to the district attorney are not insulated from a § 1983 claim for malicious prosecution simply because the prosecutor, grand jury, trial court, and appellate court all act independently to facilitate erroneous convictions.'" (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1292 (10th Cir. 2004)); Brockington v. City of Phila., 354 F.Supp.2d 563, 569 (E.D. Pa. 2005) (holding a police officer may be "considered to have initiated a criminal proceeding if he or she knowingly provided false information to the prosecutor or otherwise interfered with the prosecutor's informed discretion" (citation and internal quotation marks omitted)).

The investigation regarding the gun was handled by Hasara and other members of the Attorney General's Gun Violence Task Force, not Brooks. It was Hasara, not Brooks, who swore out the affidavit of probable cause. The only information Brooks contributed to the affidavit was his identification of Tate. While Tate contends Brooks's identification was fabricated, as explained above, Tate has not produced evidence from which a reasonable jury could find that Brooks knew his identification was incorrect. Tate also accuses Brooks of intentionally withholding exculpatory fingerprint and DNA test results, but this allegation is wholly unsubstantiated, as there is no evidence such testing was ever performed, much less that any test results exculpated Tate. Tate has thus failed to create a genuine issue of material fact as to the initiation element of his malicious prosecution claim.11

The Court also agrees with Brooks that Tate has failed to produce evidence from which a reasonable jury could find the criminal proceedings against Tate were initiated without probable cause. Probable cause exists when "the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." Goodwin v. Conway, 836 F.3d 321, 327 (3d Cir. 2016) (citation omitted). Although the existence of probable cause is generally a jury question, "a [d]istrict [c]ourt may conclude that probable cause exists as a matter of law, and, hence, grant summary judgment if the evidence, when viewed in the light most favorable to the plaintiff, reasonably would not support a contrary finding." Richards v. Pennsylvania, 196 F. App'x 82, 84 (3d Cir. 2006).

Tate was charged with numerous offenses related to the purchase of the gun that was ultimately retrieved from the Beaumont Lounge. The most serious of these offenses — and the only offense discussed by the parties in their summary judgment briefing — was the offense of possession of a firearm by a former convict, in violation of 18 Pa. Cons. Stat. Ann. § 6105, a second degree felony. Section 6105 makes it unlawful for a person who has been convicted of certain enumerated offenses, including murder and voluntary manslaughter, to "possess, use, control, sell, transfer or manufacture . . . a firearm in this Commonwealth." 18 Pa. Cons. Stat. Ann. § 6105(a)(1). It is undisputed that when Hasara swore out the affidavit of probable cause for Tate's arrest, he had knowledge of Tate's prior murder and manslaughter convictions. See Def.'s Mot. for Summ. J. Ex. A. The question is thus whether the facts and circumstances within Hasara's knowledge were sufficient to warrant a reasonable belief that Tate possessed the gun in question.

Under Pennsylvania law, a firearm possession conviction may be based on actual, constructive, or joint constructive possession of the firearm. See Commonwealth v. Benjamin, No. 43 WDA 2015, 2016 WL 5380103, at *2 (Pa. Super. Ct. Aug. 24, 2016); Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. Ct. 1999). Constructive possession of a firearm exists when a person has "conscious dominion" over the firearm — i.e., "the power to control the firearm and the intent to exercise such control," elements which may be "inferred from the totality of the circumstances." Heidler, 741 A.2d at 215-16.

As noted, when Hasara swore out the affidavit of probable cause, he had taken a statement from Luise-Johnson in which she admitted that she had purchased the gun for Tate in exchange for a payment of $1,000; that Tate had driven her to the gun store, told her what kind of gun to buy, and given her the cash to pay for it; and that after she purchased the gun, Tate dropped her off at home and left, taking the gun and ammunition with him. Hasara had also obtained video surveillance footage from the gun store, which showed Luise-Johnson and Tate in the store together, where Tate pointed twice to a particular gun, which Luise-Johnson then purchased. In addition, while attempting to interview Luise-Johnson at her home after the gun was reported stolen and recovered from the bar, Hasara personally observed Tate approach Luise-Johnson's home, then abruptly turn and leave upon seeing law enforcement officers at her door. Based on these facts, Hasara had ample reason to believe Tate had at least constructive possession of the gun at or around the time Luise-Johnson purchased the gun and left it with him, and thus had probable cause to charge Tate with possession of a firearm by a former convict.12

Finally, Tate has produced no evidence from which a reasonable jury could find that Brooks acted maliciously or for a purpose other than bringing Tate to justice. In his opposition to Brooks's summary judgment motion, Tate argues malice can be inferred from (1) Brooks's allegedly fabricated identification of Tate and false suppression hearing testimony regarding the circumstances in which he made the identification; (2) Brooks's alleged withholding of DNA and fingerprint evidence that would have exonerated Tate; and (3) the alleged "destruction of several pages of lies" from Luise-Johnson. See Pl.'s Resp. to Def.'s Mot. for Summ. J. 2. None of these allegations finds support in the record. The Court has previously discussed the lack of evidentiary support for Tate's allegations regarding Brooks's identification and suppression hearing testimony and the purported DNA and fingerprint evidence. In addition to being unsupported, Tate's allegations regarding the destruction of evidence from Luise-Johnson are unexplained — and unconnected to Brooks in any event. Tate's malicious prosecution claim thus fails for want of evidence of malice as well. See King v. Deputy Att'y Gen. Del., 616 F. App'x 491, 495 n.6 (3d Cir. 2015) ("Malice means spite or ill-will, the use of a prosecution for an extraneous purpose, or a lack of belief in the guilt of the accused.").

Because Tate has failed to produce evidence from which a reasonable jury could find that Brooks fabricated evidence against him or maliciously prosecuted him, Brooks's motion for summary judgment is granted, and Tate's motion for summary judgment is denied.