John Sterling Collins v. Marilyn L. Christie, Executor of Estate of Edwin Lloyd, Deceased

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3781
JOHN STERLING COLLINS,
Appellant
v.
MARILYN L. CHRISTIE, EXECUTOR OF ESTATE OF
EDWIN LLOYD, DECEASED; GEORGE M. LEADER FAMILY
CORP. Trading as COUNTRY MEADOWS; COUNTRY MEADOWS
ASSOCIATES, LP; COUNTRY MEADOWS ASSOCIATES, II, LP;
LOUIS SCOTT LIPARE; A AM COLUMBO, DO; KELLY FREED, M.D.;
LEHIGH VALLEY HOSPITAL, INC.
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-06-cv-4702)
District Judge: Honorable Lawrence F. Stengel
Submitted Under Third Circuit LAR 34.1(a)
June 12, 2009
Before: McKEE, HARDIMAN, and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 10, 2009)
OPINION

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Collins’s complaint named several defendants, including Detective Lipare. The1
instant appeal concerns only the District Court’s grant of Lipare’s motion for summary
judgment.
2
VAN ANTWERPEN, Circuit Judge
On September 25, 2004, Appellee Louis Scott Lipare, a detective for the
Bethlehem Township Police Department, arrested Appellant John Collins following
allegations of abuse at Country Meadows Nursing Home, the Bethlehem, Pennsylvania,
nursing home where Collins worked as a certified nurse’s assistant. After the prosecution
dropped the criminal charges against Collins, he filed a complaint asserting violations of1
his federal civil rights and a claim for malicious prosecution under state law. Collins now
appeals from the District Court’s order granting Lipare’s motion for summary judgment.
See Collins v. Christie, No. 06-4702, 2008 WL 2736418 (E.D. Pa. July 11, 2008).
I.
The District Court had jurisdiction over Collins’s federal claims pursuant to 28
U.S.C. §§ 1331 and 1343 and over his state law claim pursuant to 28 U.S.C. § 1367. This
Court has jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow, we will
affirm the order of the District Court.
II.
Because we write solely for the parties, we will address only those facts necessary
to our opinion.
In September 2004, Appellant John Collins, an African American male, was
employed as a certified nurse’s assistant by Country Meadows. On September 24, 2004,

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Edwin Lloyd is now deceased.2
3
Collins was working a 7:00 p.m. to 11:00 p.m. shift at Country Meadows, during which
he was assigned to care for the residents of Room 21 in Building V, including Edwin
Lloyd. Lloyd was ninety-two years old and suffered from Alzheimer’s disease and2
dementia. Country Meadows employees described Lloyd as paranoid and combative and
noted that he regularly made racially derogatory comments about African Americans.
That night, as Collins helped Lloyd prepare for bed, Lloyd became agitated and
stated that someone named “John” hit him. John Collins was the only male working the
7:00 p.m. to 11:00 p.m. shift in Building V of Country Meadows on September 24, 2004.
Collins was also the only person named “John” working in Building V at the time, and he
was wearing a name tag. Collins denies hitting Lloyd and asserts that Lloyd struck him.
Throughout the evening of September 24, 2004, and the morning of September 25,
2005, several Country Meadows employees checked on Lloyd. At approximately 9:30
p.m. on September 24, 2004, Nurse Tanya Rogers entered Lloyd’s room, where she found
him alert and responsive. Lloyd informed Rogers that a male nurse cursed at him and
struck him in the chest. Rogers gave Lloyd antianxiety medication, prepared an incident
report, and noted that she saw no marks or bruises on Lloyd’s body and that he was
breathing normally. Several hours later, Registered Nurse Diana Sawruk checked on
Lloyd; she found him alert and complaining of chest pains. Lloyd repeated his claim that
someone named “John” hit him. Sawruk did not observe any marks on Lloyd’s chest.
At 7:15 a.m. on September 25, 2004, Justine Reuben, a nurse’s aide, noticed that

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Gunton was not deposed in connection with this action. Her testimony is taken3
from her deposition in the wrongful death action brought by Lloyd’s estate against
Country Meadows.
As the District Court noted, “[p]etechiae rashes appear within an hour or two if4
caused by trauma, are different from a bruise, and have several causes besides trauma.” A
nurse’s note recorded at 9:30 a.m. indicated that Lloyd suffered from petechiae rashes.
4
Lloyd was agitated and observed a protruding, purple area on his chest. Lloyd told her
that “John” punched him in the chest. About one hour later, another nurse’s aide,
Madeline Velez, observed a large, red bruise on Lloyd’s chest. Lloyd complained of chest
pain to Velez and repeated his claim that “John” hit him. Linda Meyer, a licensed
practical nurse, also observed Lloyd that morning; she found him covered in vomit and
complaining that someone named “John” had struck him in the chest. Nurse Betty Jean
Gunton also checked on Lloyd; she testified that she was the first person to observe
markings on Lloyd’s chest, which she characterized as petechiae rashes. After Lloyd3 4
reiterated his claim that “John” hit him in the chest, she performed a full body check on
him with the assistance of Velez and Reuben. When Velez and Reuben lifted Lloyd from
his recliner, he began vomiting a dark substance and collapsed.
Country Meadows then summoned an ambulance to take Lloyd to the emergency
room at Lehigh Valley Hospital, where Adam Columbo, D.O., an emergency medicine
resident, treated him. Dr. Columbo observed that Lloyd exhibited no signs of Alzheimer’s
disease and appeared alert and lucid. Lloyd told Dr. Columbo that an individual named
“John” hit him. Dr. Columbo noticed that Lloyd had a chest injury and was experiencing
difficulty breathing. He also detected vomit on Lloyd’s clothing; lab tests revealed that

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Following her initial review of the CAT scan, Dr. Freed’s report did not indicate5
that she thought Lloyd’s injuries were old or chronic, despite other x-rays showing that he
previously fractured his ribs. Dr. Freed testified that, had she thought Lloyd’s injury was
old or chronic at that time, her report would have so indicated. As noted infra, at Collins’s
criminal trial, Freed revised her opinion. She determined that the fractures identified in
her report on September 26, 2004, were actually old fractures. As a result, the criminal
charges against Collins were dropped.
5
this vomit contained blood. Dr. Columbo concluded that Lloyd’s injury was consistent
with his account of being hit in the chest. He ordered a chest x-ray and a CAT scan,
which revealed rib fractures and pneumothorax. Dr. Kelly Freed, a diagnostic radiologist,
reviewed Lloyd’s CAT scan on September 26, 2004, and concluded he had a
pneumothorax and a fracture of the right side of the seventh and eighth ribs.5
At approximately 9:40 a.m. on September 25, 2004, Bethlehem Township Police
Officer Troy Abelovsky was dispatched to Country Meadows after receiving a call about
an elderly man with chest pains. He interviewed Lloyd, who told him that he had been hit
in the chest, and observed that Lloyd had a red mark on his chest. Abelovsky contacted
Barbara Lissenden, the Assistant Director of Nursing at Country Meadows, to inquire into
the identity of “John.” Lissenden informed him that John Collins was an employee who
was assigned to Lloyd’s care the previous evening. Abelovksy then contacted Detective
Louis Scott Lipare, who initiated an investigation into Lloyd’s abuse allegations. He
interviewed Edwin Lloyd; Barbara Lissenden; Nurse Gunton; Madeline Velez; Mark
Gutekust, the charge nurse at Lehigh Valley Hospital; and Dr. Columbo. Based on these
interviews, Detective Lipare began preparing an affidavit of probable cause to file
criminal charges against John Collins. At 5:00 p.m. on September 25, 2004, Lipare

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6
contacted Collins and asked him to come to police headquarters, where he was arrested.
Collins was arraigned on charges of felony and misdemeanor aggravated assault.
See 18 Pa. Cons. Stat. §§ 2701, 2702(a)(1). Lipare prepared the criminal complaint and
affidavit of probable cause. He continued his investigation after Collins’s arrest,
interviewing several Country Meadows employees, each of whom said that Lloyd
claimed that “John” hit him.
Collins’s criminal trial was held in the Northampton County Court of Common
Pleas from July 12, 2005, through July 14, 2005. On July 14, 2005, Dr. Kelly Freed
revised her opinion as to the cause of Lloyd’s injuries. Because the charges of aggravated
and simple assault against Collins were based on medical information, Dr. Freed’s revised
opinion caused the prosecution to dismiss the charges due to insufficient evidence.
Following the dismissal of the criminal charges, Collins filed the suit that is the
subject of the current appeal. As to Detective Lipare, Collins asserted four claims: (1) a
violation of 42 U.S.C. § 1983 for false statements or omissions on the affidavit of
probable cause, (2) a violation of 42 U.S.C. § 1981 for rushing to judgment based on
Collins’s race, (3) a violation of 42 U.S.C. § 1983 and 42 U.S.C. § 1985 based on a
conspiracy between Lipare and Country Meadows to arrest Collins, and (4) malicious
prosecution under Pennsylvania law. Lipare moved for summary judgment, and Collins
conceded that summary judgment was appropriate as to his claims that Lipare violated 42
U.S.C. § 1981 by rushing to judgment based on Collins’s race and that he violated 42
U.S.C. § 1983 and 42 U.S.C. § 1985 by conspiring with the nursing home to arrest

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Collins. On July 11, 2008, the District Court granted Lipare’s motion as to the remaining
two claims. This appeal followed.
III.
We exercise plenary review over the District Court’s grant of summary judgment
and apply the same standard as the District Court. Marten v. Godwin, 499 F.3d 290, 295
(3d Cir. 2007). “We may affirm the order when the moving party is entitled to judgment
as a matter of law, with the facts viewed in the light most favorable to the non-moving
party. Further, ‘[w]e may affirm the District Court on any grounds supported by the
record.’” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc) (quoting Nicini
v. Morra, 212 F.3d 798, 805-06 (3d Cir. 2000) (en banc)) (internal citation omitted)
(alteration in original).
IV.
A. False Arrest
Collins contends that the District Court erred in granting summary judgment as to
his 42 U.S.C. § 1983 claim of false arrest pursuant to an invalid warrant. To state a claim
under § 1983, the plaintiff must demonstrate that the defendant deprived him of a
constitutional right while acting under color of law. Wilson v. Russo, 212 F.3d 781, 786
(3d Cir. 2000). Because it is undisputed that Detective Lipare acted under color of law,
the relevant inquiry is whether he deprived Collins of a constitutional right—in this case,
whether he violated Collins’s Fourth Amendment right by arresting him without probable
cause.

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8
“‘Probable cause to arrest 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.’”
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (quoting Orsatti v.
New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)); see also Hunter v. Bryant, 502
U.S. 224, 228 (1991) (noting that existence of probable cause is assessed by considering
arresting officer’s knowledge “‘at the moment the arrest was made’” (quoting Beck v.
Ohio, 379 U.S. 89, 91 (1964))). Although the jury typically determines the existence of
probable cause in a § 1983 case, Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.
1998), “a district court may conclude ‘that probable cause exists as a matter of law if the
evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary
factual finding’” and enter summary judgment. Merkle, 211 F.3d at 788-89 (quoting
Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)).
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court set forth a two-
part inquiry for challenging the truthfulness of factual statements made in an affidavit of
probable cause. United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006). Under the
Franks test, a plaintiff challenging the validity of an affidavit of probable cause must
prove, by a preponderance of the evidence, “(1) that the affiant 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, or necessary, to the finding of probable cause.” Sherwood, 113

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Collins makes no showing that any misstatements or omissions in Lipare’s6
affidavit were made “knowingly or deliberately”; accordingly, the appropriate focus is
whether any such misstatements or omissions were made “with a reckless disregard for
the truth.” See Sherwood, 113 F.3d at 399.
9
F.3d at 399 (citing, inter alia, Franks, 438 U.S. at 171-72).
1. Reckless Disregard for the Truth6
Since Franks, this Court has established standards for what constitutes “reckless
disregard for the truth”:
In evaluating a claim that an officer both asserted and omitted facts with
reckless disregard for the truth, we hold that: (1) omissions are made with
reckless disregard for the truth when an officer recklessly omits facts that
any reasonable person would know that a judge would want to know; and
(2) assertions are made with reckless disregard for the truth when an officer
has obvious reasons to doubt the truth of what he or she is asserting.
Wilson, 212 F.3d at 783; see also Yusuf, 461 F.3d at 383.
Collins points to several omissions and one misstatement in Lipare’s affidavit: (1)
the failure to note that Edwin Lloyd was a ninety-two-year-old resident of a nursing home
who had Alzheimer’s disease and dementia, (2) the failure to note that Lloyd was
partially blind, (3) the failure to note that Country Meadows’ records did not substantiate
the reference to previous disputes between Collins and Lloyd, (4) the failure to note a
nurse’s alternative diagnosis for the bruise on Lloyd’s chest, (5) the failure to note the
lack of injury to Lloyd’s arm when referring to Lloyd’s report that Collins repeatedly
entered his room “to stop the bleeding” from his arm, (6) the failure to note that Lloyd fell
on the morning of September 25, 2004, and (7) the erroneous description of Dr. Columbo

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as an attending physician rather than as a resident physician.
Considering these alleged omissions and misstatements in turn, see Wilson, 212
F.3d at 788, and viewing the facts in the light most favorable to Collins, Lipare acted in
reckless disregard for the truth with respect to some of these asserted omissions.
Nevertheless, the District Court’s grant of summary judgment was appropriate, because
none of the omissions or misstatements were material to a finding of probable cause.
First, while the challenged affidavit failed to note that Edwin Lloyd was a ninety-
two-year-old resident of a nursing home who suffered from Alzheimer’s disease and
dementia, it described him as “an elderly male” who lived at Country Meadows. No
evidence suggests that Lipare knew of Lloyd’s Alzheimer’s disease and dementia when
he completed the affidavit. Indeed, Lipare characterized Lloyd’s mental state as “fine”
after interviewing him, and several other witnesses informed Lipare that Lloyd was
oriented and lucid when they spoke to him.
The affidavit also omitted reference to Lloyd’s partial blindness, even though
Lipare knew of this condition. Viewing the facts in the light most favorable to Collins,
Lloyd’s partial blindness constitutes information “in [Lipare’s] ken that ‘[a]ny reasonable
person would have known . . . was the kind of thing the judge would wish to know,”
Wilson, 212 F.3d at 788 (quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.
1993)) (second alteration in original), because it implicates Lloyd’s ability to observe his
surroundings during the alleged incident with Collins. Although “[w]e cannot demand
that police officers relate the entire history of events,” Wilson, 212 F.3d at 787, a jury

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could conclude that the failure to note the partial blindness of the only witness to the
alleged nighttime attack constituted a reckless disregard of the truth.
The affidavit also failed to note that no reports of past disputes between Lloyd and
Collins had been recorded at Country Meadows, despite stating that Lloyd relayed past
disputes with “John” in which “they would yell and scream foul language at each other.”
Lipare testified that, when he interviewed Madeline Velez, she informed him of the “bad
blood” between Collins and Lloyd; thus the affidavit’s reference to past fights was
supported, and the failure to note the lack of corroborating records at Country Meadows
was not reckless.
Lipare’s affidavit did not refer to Nurse Gunton’s diagnosis of the bruise on
Lloyd’s chest as a petechial rash. As Appellant’s brief acknowledges, however, it is not
clear that Lipare learned of this alternative diagnosis before completing his affidavit.
Other witnesses interviewed by Lipare, including Dr. Columbo, asserted that Lloyd’s
injury was consistent with a punch, and Lipare testified that he also believed the mark
was from a fist. Nevertheless, viewing the facts in the light most favorable to Collins, we
assume that Lipare did know of this alternative diagnosis before preparing the affidavit;
the existence of an alternative diagnosis constitutes information that a reasonable person
would know that a judge would wish to know. Thus, a jury could conclude that the failure
to include the alternative diagnosis demonstrated a reckless disregard for the truth.
Collins also contends that the affidavit omitted the fact that Lloyd’s arm had no
discernable injury when it stated that, after the alleged assault, “John kept coming in and

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out of [Lloyd’s] room and at one point was pressing on his right arm . . . to stop the
bleeding.” As the District Court observed, however, Lipare testified that, although
Lloyd’s right arm was not bleeding, “it looked like he had some type of an injury that
may have been bleeding.” Because Lipare testified that he did observe an injury on
Lloyd’s right arm, the failure of Lipare to note that no such injury existed did not
constitute a reckless disregard for the truth.
Collins also argues that the affidavit’s omission of an acknowledgment of Lloyd’s
fall on the morning of September 25, 2004, displayed a reckless disregard for the truth.
As the district court noted, Lipare’s Investigative Report indicates that Velez informed
him that Lloyd “lowered” to his knees, and Lipare testified that he did not think Lloyd
fell. Lipare’s omission of such a statement from the affidavit did not display a reckless
disregard for the truth.
Finally, Collins notes that Lipare’s affidavit misstated Dr. Columbo’s position.
While the affidavit erroneously refers to Dr. Columbo as an attending physician rather
than a resident physician, there is no indication that Lipare had “obvious reasons to doubt
the truth of” his assertion. See Wilson, 212 F.3d at 788-89.
2. Materiality
Because there was sufficient evidence that some of the affidavit’s omissions or
assertions were made with reckless disregard for the truth, we examine whether these
errors are material to the finding of probable cause. See Franks, 438 U.S. at 171-72;
Sherwood, 113 F.3d at 399. To determine the materiality of omissions or misstatements

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from an affidavit of probable cause, this Court must reconstruct the affidavit by inserting
alleged omissions and excising alleged inaccuracies. This Court must then determine
whether the reconstructed affidavit establishes probable cause. See Wilson, 212 F.3d at
789. If it does, the district court’s grant of summary judgment was proper.
Even assuming that all the complained-of omissions and misstatements from
Lipare’s affidavit were corrected, the “reconstructed” affidavit would include Edwin
Lloyd’s assertion to Detective Lipare that an individual named “John” punched him in the
chest; Lipare’s assessment that Lloyd was lucid on the morning of September 25, 2004;
the reports of several witnesses that Lloyd told them that “John” struck him in the chest;
medical evidence and testimony demonstrating that Lloyd’s injuries were consistent with
a punch to the chest, even if also consistent with other causes, such as a petechia rash; and
the fact of John Collins’s employment at Country Meadows and his assignment to care
for the residents of Room 21 of Building V, including Edwin Lloyd, on the evening of
September 24, 2004. On the basis of this “reconstructed” affidavit, the facts and
circumstances in Detective Lipare’s knowledge were “sufficient in themselves to warrant
a reasonable person to believe that an offense” had been committed by Collins. See
Orsatti, 71 F.3d at 483. Accordingly, the District Court did not err in concluding that
probable cause existed as a matter of law because, viewing the evidence in the light most
favorable to Collins, the evidence “reasonably would not support a contrary factual
finding.” Sherwood, 113 F.3d at 401.
B. Malicious Prosecution

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Under Pennsylvania law, a claim for malicious prosecution requires a showing that
(1) the defendant initiated a criminal proceeding, (2) the criminal proceeding was
resolved in the plaintiff’s favor, (3) the proceeding was initiated without probable cause,
and (4) the defendant acted with malice or for a purpose other than the pursuit of justice.
Merkle, 211 F.3d at 791; see also Kossler, 564 F.3d at 186 & n.2. The failure to satisfy
any of these elements is fatal to the claim of malicious prosecution. See Kossler, 564 F.3d
at 186 (observing that, in a claim for malicious prosecution under § 1983, plaintiff’s
failure to establish an element of claim “was fatal”). Because the District Court did not err
in finding that Detective Lipare had probable cause to arrest Collins on September 25,
2004, Collins’s claim for malicious prosecution must fail.
Based on the foregoing, we will affirm the District Court’s grant of Lipare’s
motion for summary judgment.

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