UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL EDWARD ASUNCION,
Plaintiff-Appellant,

v.

THE CITY OF GAITHERSBURG,
MARYLAND; DAVID HUMPTON,
                                                                  No. 95-1159
Gaithersburg City Manager; CITY
COUNCIL OF GAITHERSBURG; A. P.
YOKLEY, Officer; UNKNOWN POLICE
OFFICERS OF THE CITY OF
GAITHERSBURG, MARYLAND,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
J. Frederick Motz, Chief District Judge.
(CA-93-46-JFM)

Submitted: September 20, 1995

Decided: January 3, 1996

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gary Howard Simpson, Bethesda, Maryland, for Appellant. Paul T.
Cuzmanes, Cynthia L. Ambrose, WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael Asuncion filed a complaint alleging that Officer A.P. Yok-
ley, the City of Gaithersburg, Maryland, and others (collectively, the
City) violated his civil rights.1See 42 U.S.C. § 1983 (1988). The
alleged violation stems from the arrest and prosecution of Asuncion
for disorderly conduct after he was stopped for a routine traffic viola-
tion. Asuncion argued before the district court that summary judg-
ment on his § 1983 claim was improper because a material issue of
fact existed as to whether Yokley had probable cause to arrest him
and as to whether the prosecutor had probable cause to prosecute him.
Because Maryland law dictates that a prosecution is presumed conclu-
sively to be made with probable cause if an arrestee subsequently is
convicted, even if that conviction is later reversed, see Zablonsky v.
Perkins, 187 A.2d 314, 316 (Md. 1963), the district court granted
summary judgment in favor of the City. On appeal, Asuncion argues
for the first time that he falls under an exception to this rule. For the
reasons discussed below, we affirm.

I.

On December 11, 1991, Yokley stopped Asuncion and issued him
a citation for driving through a red light. After completing the cita-
tion, Yokley asked Asuncion to sign the document. Beyond this junc-
ture, the parties' stories diverge widely. Yokley contends that
Asuncion became agitated and began acting irrationally, creating a
disturbance that distracted other drivers on the road, while Asuncion
claims that Yokley began to harass him verbally and physically with-
out provocation. The conflicting versions of the arrest need not con-
_________________________________________________________________
1 Asuncion does not appeal the district court's grant of summary judg-
ment to the City on his state law claims of assault, battery, false arrest,
intentional infliction of emotional distress, and malicious prosecution.

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cern us; the germane fact is that the encounter resulted in Yokley's
arrest of Asuncion for disorderly conduct.

After a bench trial before the Montgomery County District Court,
Asuncion was convicted of disorderly conduct. On appeal, a jury
found Asuncion not guilty in a trial de novo in the Montgomery
County Circuit Court. See Md. Code Ann., Cts. & Jud. Proc. § 12-
401(f) (Supp. 1995) (providing that certain criminal appeals from the
state district court are tried de novo before the circuit court). Asun-
cion subsequently brought this action, asserting false arrest and mali-
cious prosecution as the bases for his claim that the City violated his
civil rights.

II.

Rule 56(c) of the Federal Rules of Civil Procedure requires the dis-
trict court to enter summary judgment against a party who, "after ade-
quate time for discovery . . . fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion
for summary judgment, the City must establish that:"(1) there is no
genuine issue as to any material fact; and (2) it is entitled to judgment
as a matter of law." Harleysville Mut. Ins. Co. v. Packer, 60 F.3d
1116, 1119 (4th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). If Asuncion fails to offer proof of an
essential element of his case, all other facts are rendered immaterial,
there is no genuine issue as to any material fact, and the City is enti-
tled to judgment as a matter of law. See Celotex , 477 U.S. at 323. We
review a grant of summary judgment de novo. Henson v. Liggett
Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995).

To prove his claim under § 1983, Asuncion must show a malicious
prosecution under Maryland law that resulted in a deprivation of his
constitutional rights. See Goodwin v. Metts, 885 F.2d 157, 160 n.1
(4th Cir. 1989) (stating the same for South Carolina law), cert.
denied, 494 U.S. 1081 (1990). Under Maryland law, the tort of mali-
cious prosecution consists of the following elements:

          (a) a criminal proceeding instituted or continued by the
          defendant against the plaintiff, (b) termination of the pro-

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          ceeding in favor of the accused, (c) absence of probable
          cause for the proceeding, and (d) malice, or a primary pur-
          pose in instituting the proceeding other than that of bringing
          an offender to justice.

Brewer v. Mele, 298 A.2d 156, 159 (Md. 1972). Because Asuncion
is unable to prove the absence of probable cause, an essential element
of the tort, we affirm the district court's grant of summary judgment
in favor of the City.2

Under Maryland law, a conviction determines conclusively the
existence of probable cause, regardless of whether the judgment is
later reversed in a subsequent proceeding. Zablonsky, 187 A.2d at
316. Thus, Asuncion's conviction in the Montgomery County District
Court precludes his establishing the absence of probable cause for the
disorderly conduct charge, even though the jury later found him not
guilty in a subsequent trial de novo in the circuit court. See Quecedo
v. DeVries, 321 A.2d 785, 791 (Md. Ct. Spec. App. 1974) (reaching
the same conclusion under similar factual circumstances). Because
Asuncion cannot prove an essential element of malicious prosecution
under Maryland law, he cannot establish his claim under § 1983. See
Bussard v. Neil, 616 F. Supp. 854, 856-57 (M.D. Pa. 1985) (granting
summary judgment to defendant on plaintiff's § 1983 claim based on
malicious prosecution where plaintiff failed to prove absence of prob-
able cause because of an earlier conviction that was later reversed).

On appeal, Asuncion argues for the first time that his case falls
within a narrow exception to the Maryland rule that a conviction
determines conclusively the existence of probable cause: if a convic-
tion is "`obtained by fraud, perjury or other corrupt means,'" the con-
viction loses its conclusive effect. Zablonsky , 187 A.2d at 316
(quoting Restatement of Torts § 667 (1938)). Asuncion contends that
his disorderly conduct conviction was obtained through the perjured
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2 The probable cause inquiry with respect to the false arrest claim is
essentially the same as the probable cause inquiry with respect to the
malicious prosecution claim because all of the evidence of the crime of
disorderly conduct used to prosecute Asuncion was before the arresting
officer. Accordingly, because we find that there was probable cause to
prosecute Asuncion, there was necessarily probable cause for the arrest.

                    4
testimony of Yokley, and therefore he should be allowed to prove the
absence of probable cause. Asuncion's argument is meritless. We first
note that we are not required to address this argument on appeal
because Asuncion failed to argue and raise it in the proceedings
before the district court. See Singleton v. Wulff, 428 U.S. 106, 120
(1976) ("It is the general rule, of course, that a federal appellate court
does not consider an issue not passed upon below."). Second, in any
event, Asuncion's mere recitation of factual inconsistency is insuffi-
cient to demonstrate perjury by Yokley during the trial before the
state district court. See United States v. Griley, 814 F.2d 967, 971 (4th
Cir. 1987) (holding that inconsistencies in testimony create, at most,
a credibility question for the jury; they do not establish perjury).
Thus, we reject Asuncion's argument.

III.

Because we find no genuine issue of material fact concerning the
existence of probable cause and because we find Asuncion's belated
perjury argument unavailing, we affirm the district court's grant of
summary judgment in favor of the City.

AFFIRMED

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