Irvin Samuel Harper v. the City of Philadelphia

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2262
__________
IRVIN SAMUEL HARPER,
Appellant
v.
THE CITY OF PHILADELPHIA; DETECTIVE DANIEL O'MALLEY; RICHARD
ROSS, Philadelphia Police Commissioner; MARK BURGMANN, Captain of
Philadelphia Police S.V.U.; AMY DELAPORTA, Social Worker at Covenant House;
THE PHILADELPHIA DISTRICT ATTORNEYS OFFICE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-18-cv-04182)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
August 23, 2022
Before: GREENAWAY, JR., PORTER and NYGAARD, Circuit Judges
(Opinion filed: November 30, 2022)
___________
OPINION*
___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

-- 1 of 6 --

2
Irvin Harper appeals the District Court’s order dismissing his complaint for failure
to state a claim. For the reasons that follow, we will affirm the District Court’s judgment.
Harper filed a civil rights complaint alleging, inter alia, claims of false arrest and
malicious prosecution based on his arrest and detention on charges of raping two women.
He stated that he was acquitted of one charge and that the other charge was dismissed.
The District Court twice granted Appellees’ motions to dismiss the complaint but gave
Harper the opportunity to amend his complaint each time. After Harper filed a second
amended complaint, Appellees again filed motions to dismiss. The District Court
dismissed the second amended complaint and closed the case. Harper filed a notice of
appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s
order granting the motions to dismiss de novo. Dique v. N.J. State Police, 603 F.3d 181,
188 (3d Cir. 2010). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation omitted). It
is not enough for a plaintiff to offer only conclusory allegations or a simple recital of the
elements of a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We may
affirm the District Court on any ground supported by the record. Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
As noted above, Harper claims that he was falsely arrested for the two rapes. The
Fourth Amendment requires that arrests be supported by probable cause. Thus, to state a
claim for false arrest, a plaintiff must establish that probable cause was lacking. James v.

-- 2 of 6 --

3
City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). Probable cause exists when the
facts known to the officer are sufficient to warrant a reasonable person to believe that an
offense has been committed. Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir.
1995). Mere suspicion is not enough for probable cause, but an officer is not required to
have evidence to prove guilt beyond a reasonable doubt. Id. at 482-83. Because probable
cause is only needed with respect to any offense that could be charged under the
circumstances, see Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994),
establishing probable cause on one of multiple charges will defeat a claim of false arrest.
Startzell v. City of Phila., 533 F.3d 183, 204 n.14 (3d Cir. 2008). Here, Harper has failed
to state a claim of false arrest because, as discussed below, probable cause was
established with respect to the rape charges involving the woman referred to as Bella.
Where an arrest is made pursuant to a warrant (as it was here), establishing a lack
of probable cause requires a plaintiff to show “(1) that the police officer knowingly and
deliberately, or with a reckless disregard for the truth, made false statements or omissions
that create[d] a falsehood in applying for a warrant; and (2) that such statements or
omissions are material, or necessary, to the finding of probable cause.” Wilson v. Russo,
212 F.3d 781, 786-87 (3d Cir. 2000) (internal quotations and citation omitted). An
omission is made with reckless disregard if it is something a reasonable person would
realize that the judge would want to know. Id. at 788. To determine whether an omission
is material, the Court must predict whether a reasonable judge would conclude that a
corrected affidavit was insufficient to establish probable cause. Sherwood v. Mulvihill,
113 F.3d 396, 401 (3d Cir. 1997). Harper acknowledges that Bella told Appellee

-- 3 of 6 --

4
Detective O’Malley that Harper had raped her and has not alleged any information
withheld by Detective O’Malley that would have been material to a finding of probable
cause with respect to this rape.
More specifically, in the affidavit of probable cause, Detective O’Malley asserted
that Bella stated that she went with a man she knew as “Gotti” because he indicated that
he could assist her in finding employment.1 After they entered a building, Gotti pulled
out a gun and forced her to perform oral sex. He then raped her. When Gotti texted
Bella a few days later, she went with him out of fear and he raped her again. She
identified Harper as Gotti from a photo. This was sufficient to establish probable cause.
See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (“When a police officer has
received a reliable identification by a victim of his or her attacker, the police have
probable cause to arrest.”) abrogated on other grounds by Curley v. Klem, 499 F.3d 199
(3d Cir. 2007).
On appeal, Harper asserts that Bella told Detective O’Malley that her roommate
had also been raped by Harper but that the roommate had denied it. He also claims that
Bella told Detective O’Malley that she also had consensual sex with Harper and that she
had worked as a prostitute. None of these allegations, taken as true, is material to the
1 Because the second amended complaint references and relies on the content of the
affidavit of probable cause and arrest warrant, we will consider them on appeal. See
Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 177 n.2 (3d Cir. 2000); see
also Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993) (“To decide a motion to dismiss, courts generally consider only the
allegations contained in the complaint, exhibits attached to the complaint and matters of
public record.”)

-- 4 of 6 --

5
finding of probable cause with respect to the rape charges based on Bella’s accusations.
An affidavit containing the allegedly omitted information would still establish probable
cause. Because there was probable cause on these rape charges, Harper has failed to state
a claim for false arrest on any of the charges. Startzell, 533 F.3d at 204 n.14.
On appeal, Harper also argues that he has stated a claim for malicious prosecution.
To do so, he must allege that the Appellees maliciously, and without probable cause,
initiated a criminal proceeding which ended in his favor, and that he suffered a
deprivation of liberty “as a consequence of” that proceeding. See Curry v. Yachera, 835
F.3d 373, 379 (3d Cir. 2016); see generally Thompson v. Clark, 142 S. Ct. 1332, 1337
(2022). Harper cannot state a claim for malicious prosecution because he has not alleged
that he suffered a deprivation of liberty based on the remaining rape charge with respect
to the woman referred to as Jessica. He has not alleged that he would not have otherwise
been detained during the time at issue on the rape charge with respect to Bella, a firearm
charge to which he pleaded guilty, and a charge of possession of a controlled substance
with intent to deliver of which he was convicted.2 See Curry, 835 F.3d at 379;
Commonwealth v. Harper, 241 A.3d 398 (Pa. Super. Ct. 2020).
2 The arrest warrant also charged Harper with possession of a firearm by a felon, and
when Harper was arrested, the police found narcotics. For the firearm and drug charges,
Harper was sentenced to ten to twenty years in prison.

-- 5 of 6 --

6
For the reasons above, as well as those set forth by the District Court, we will
affirm the District Court’s judgment.3
3 Because Harper did not argue his remaining claims in his opening brief, we will not
consider them. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (holding that
appellants forfeited arguments by failing to develop them in their opening brief); Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (noting that “appellants are required to set
forth the issues raised on appeal and to present an argument in support of those issues in
their opening brief”). While he discusses some of these claims in his reply brief, that is
insufficient as we do not consider arguments raised for the first time in a reply brief.
Gambino v. Morris, 134 F.3d 156, 161 n.10 (3d Cir. 1998).

-- 6 of 6 --