Barry E. Shelley v. Tpr Terry A. Wilson; Tpr Jeffery Brock

1
DLD-241 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1193
___________
BARRY E. SHELLEY,
Appellant
v.
TPR TERRY A. WILSON; TPR JEFFERY BROCK
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 3-04-cv-00002)
District Judge: Honorable Maurice B. Cohill, Jr.
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 9, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: August 3, 2009)
_________
OPINION
_________
PER CURIAM
Barry Shelley appeals from the District Court’s order dismissing his complaint.
For the following reasons, we will dismiss the appeal.

-- 1 of 7 --

We note that the Troopers’ subjective motivation for arresting Shelley is irrelevant1
to the inquiry into the claim of false arrest. See Devenpeck v. Alford, 543 U.S. 146, 153
(2004).
2
I.
In 2004, Shelley filed this civil rights action pro se and in forma pauperis against
two Pennsylvania State Troopers, Terry Wilson and Jeffery Brock (“Troopers”), asserting
claims of false arrest and malicious prosecution. In 2005, the United States District Court
for the Western District of Pennsylvania dismissed the complaint pursuant to 28 U.S.C. §
1915(e)(2)(B). Shelley appealed, and we affirmed the District Court’s dismissal of the
malicious prosecution claim but vacated the decision to the extent that the District Court
dismissed the false arrest claim and denied Shelley leave to amend the complaint. (See
C.A. No. 05-1907.)
On remand, the District Court provided Shelley with an opportunity to amend his
complaint; Shelley, however, elected to stand on his originally filed complaint. The
substance of Shelley’s false arrest claim (his only remaining claim) is that the Troopers
arrested him without probable cause. In support of his claim, he asserts his innocence and
claims that the Troopers conspired with the victim and lied on the affidavit of probable
cause, which led to the issuance of an arrest warrant. Further, he appears to claim that the
Troopers and the victim had some sort of vendetta against him that motivated their
actions.1

-- 2 of 7 --

We note that the District Court properly considered the documents attached to the2
Troopers’ motion to dismiss. “In deciding motions to dismiss pursuant to Rule 12(b)(6),
courts generally consider only the allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a claim.” Lum
v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004). Here, the documents attached to
the Troopers’ motion were either referenced in Shelley’s complaint, were matters of
public record, and/or were integral to the false arrest claim. Accordingly, we have no
difficulty concluding that the District Court properly considered the documents.
3
The Troopers moved to dismiss the complaint, arguing that the claim for false
arrest was meritless because they had probable cause to arrest Shelley, and asserting their
entitlement to qualified immunity from suit. In support of their motion, the Troopers
submitted a police incident report filed by the victim, the criminal complaint and affidavit
of probable cause for an arrest warrant, the state court docket, and the Pennsylvania
Superior Court’s decision affirming Shelley’s judgment of sentence.2
The Magistrate Judge filed a report recommending that the Troopers’ motion to
dismiss be granted. After considering Shelley’s objections thereto, the District Court
adopted the Magistrate Judge’s Report and Recommendation and dismissed the
complaint.
This appeal followed.
II.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Because Shelley is
proceeding in forma pauperis, we review his appeal to determine whether “it lacks an
arguable basis in law” and should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

-- 3 of 7 --

4
In evaluating the dismissal of a complaint under Federal Rule of Civil Procedure
12(b)(6), “we accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Holdings Ltd., 292
F.3d 361, 374 n.7 (3d Cir. 2002). Moreover, 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, 129 S. Ct. 1937, 1949-50 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
An arrest made without probable cause creates a cause of action for false arrest
under 42 U.S.C. § 1983. See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988).
“[P]robable 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.” Orsatti v.
N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). Further, because “[p]robable cause
does not require the same type of specific evidence of each element of the offense as
would be needed to support a conviction, . . . the evidentiary standard for probable cause
is significantly lower than the standard which is required for conviction.” Wright v. City
of Phila., 409 F.3d 595, 602 (3d Cir. 2005) (internal quotations and citations omitted).
Although determinations of probable cause are usually the province of the jury, a district
court “may conclude that ‘probable cause did exist as a matter of law if the evidence,

-- 4 of 7 --

5
viewed in the light most favorably to the [p]laintiff, reasonably would not support a
contrary factual finding.” Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (internal
citation and quotations omitted).
On January 6, 2002, Teresa Stein filed an incident report with the Pennsylvania
Police stating that Shelley (her neighbor) had twice stopped his car on the road outside
her home yelling, among other things, “you f—ing witch,” “I’ll f—ing kill you if it’s the
last thing I do.” On January 11th, the Troopers began conducting surveillance from
Stein’s home. The subsequent criminal complaint filed by Wilson states that, on January
12th, the Troopers observed Shelley stopping his vehicle outside Stein’s home and heard
Shelley telling Stein that she “doesn’t deserve to live.”
Based on Stein’s incident report and the Troopers’ observations, the criminal
complaint included two counts each of stalking, harassment, and terroristic threats.
Wilson completed an affidavit of probable cause, stating that:
. . . [Shelley] drove past the victim’s residence. When [Shelley] observed the
victim outside, he stopped his vehicle and began shouting threats and harassing
statements, i.e. ‘You F—ing Witch’ ‘I’ll F—ing kill you if it’s the last thing
I do,’ and others at the victim. Do [sic] to the violent nature of the threats and
the past history of harassment, a warrant is being requested for this complaint.
A district justice signed off on the affidavit of probable cause, and on January 29th, the
warrant was served on Shelley and he was taken into custody.
In November 2002, Shelley was tried by a jury in the Somerset County Court of
Common Pleas and was convicted of two counts of stalking with intent to cause

-- 5 of 7 --

At the time of Shelley’s arrest, stalking was defined as: “engag[ing] in a course of3
conduct or repeatedly commit[ting] acts toward another person . . . under circumstances
which demonstrate . . . an intent to cause substantial emotional distress to the person.” 18
PA. CONS. STAT. ANN. § 2709(b)(2). The offense of harassment was defined as: “with
intent to harass, annoy or alarm another, the person . . . engages in a course of conduct or
repeatedly commits acts which serve no legitimate purpose.” 18 PA. CONS. STAT. ANN. §
2709(a)(3).
6
emotional distress. The judge also convicted Shelley of one count of the summary
offense of harassment. Shelley was acquitted of the remaining charges. He was
sentenced to an aggregate term of two-to-six years’ incarceration on the stalking
convictions and a consecutive ninety days’ incarceration on the harassment conviction.
We agree that Shelley’s complaint fails to state a claim under 42 U.S.C. § 1983.
Shelley alleges that he was arrested without probable cause in violation of his Fourth
Amendment rights. He argues that he is innocent of the charges and that Troopers lied on
the affidavit of probable cause. As proof, he points to his acquittal on the charges of
terroristic threats and stalking with intent to place the other person in fear of bodily
injury. He ignores, however, that he was convicted of harassment and stalking with intent
to cause emotional distress, which required the prosecution to prove, beyond a reasonable
doubt, that Shelley committed the offenses. The jury’s finding that Shelley committed3
each element of these offenses beyond a reasonable doubt defeats his assertion that there
was no probable cause to arrest him. See McClam v. Barry, 697 F.2d 366, 370 (D.C. Cir.
1983), overruled on other grounds, Brown v. U.S., 742 F.2d 1498 (D.C. Cir. 1984)

-- 6 of 7 --

As the Troopers correctly assert, when an arrest is made on more than one charge,4
“[p]robable cause need only exist as to any offense that could be charged under the
circumstances.” Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994).
7
(stating that as to common law and constitutional law false arrest claims, “subsequent
conviction establishes as a matter of law that the arrest was justified.”). Accordingly, he
cannot succeed on a claim that his arrest violated his Fourth Amendment rights.4
For the foregoing reasons, we conclude that the District Court’s decision to
dismiss the Shelley’s complaint was proper. Because we conclude that this appeal lacks
arguable merit, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).

-- 7 of 7 --