PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-1159 & 08-2525
WALTER DIQUE,
Appellant
v.
NEW JERSEY STATE POLICE; STATE OF NEW JERSEY;
C.L. PAGANO; CARSON DUNBAR; JOHN MULVEY; G.
VONA; M. SANCHEZ; JOHN DOE 1-10
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 2-04-cv-00563)
District Judge: Hon. Katharine S. Hayden
Argued on May 11, 2009
Before: AMBRO, ROTH and ALARCÓN*, Circuit Judges
(Opinion filed: May 6, 2010)
David Rudovsky, Esquire (Argued)
Kairys, Rudovsky, Messing and Feinberg, LLP
718 Arch Street, Suite 501 South
Philadelphia, PA 09106
Benjamin Levine, Esquire
Lesnevich & Marzano-Lesnevich
21 Main Street
Court Plaza South
Hackensack, NJ 07601
Counsel for Appellant Walter Dique
Anne Milgram
Attorney General of New Jersey
Lewis A. Scheindlin, Esquire
Assistant Attorney General
Larry R. Etzweiler, Esquire (Argued)
Senior Deputy Attorney General
Wendy A. Reek, Esquire
Richard J. Hughes Justice Complex
25 Market Street
P. O. Box 112
Trenton, NJ 08625
*Honorable Arthur L. Alarcón, Senior United States
Circuit Judge for the Ninth Circuit, sitting by designation.
2
Tamara L. Rudow, Esquire
Weber, Gallagher, Simpson, Stapleton, Fires & Newby
2000 Market Street, Suite 1300
Philadelphia, PA 19103
Counsel for Appellees New Jersey State
Police; State of New Jersey; D. L.
Pagano; Carson Dunbar
Leonard C. Leicht, Esquire (Argued)
Morgan, Melhuis, Abrutyn
651 West Mount Pleasant Avenue, Suite 200
Livingston, NJ 07039-1673
Counsel for Appellees John Mulvey and
G. Vona
OPINION
ROTH, Circuit Judge:
This appeal presents the question of when Walter Dique’s
Fourteenth Amendment selective-enforcement claim accrued.
Dique appeals the District Court’s final order, granting summary
judgment in favor of Clinton Pagano, John Mulvey, and Glen
Vona (Officers) on his claim because it was time barred. Dique
3
argues that he timely filed suit because his claim accrued in
April 2002, when his conviction was vacated; the Officers, by
contrast, argue that the claim accrued in January 1990, when the
wrongful conduct occurred.
In Gibson v. Superintendent of New Jersey Department
of Law & Public Safety—Division of State Police, 411 F.3d 427
(3d Cir. 2005), we held, relying on the rule of Heck v.
Humphrey, 512 U.S. 477 (1994), that the statute of limitations
for a selective-enforcement claim “did not begin to run until
[the] sentence was vacated.” Gibson, 411 F.3d at 441. We
believe, however, that the Supreme Court’s decision in Wallace
v. Kato, 549 U.S. 384 (2007), which clarified the Heck rule,
extends to Fourteenth Amendment selective-enforcement claims
and thus overrides our decision in Gibson.
I. BACKGROUND
A. Facts
On January 7, 1990, Walter Dique was the victim of
racial profiling.1 At about 10 p.m. that night, Dique was driving
a livery car for hire on the New Jersey Turnpike. Dique is a
native of Colombia; his two passengers were Hispanic. Mulvey,
a state trooper, drove up behind Dique and flashed his overhead
1
Because Dique appeals from an order granting summary
judgment, we view the evidence in the light most favorable to
Dique and accept his allegations as true. See, e.g., Groman v.
Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
4
lights. Dique pulled over to the side of the road. According to
Mulvey, he stopped Dique for a speeding violation. Mulvey
then ordered Dique out of the car because the traffic noise and
Dique’s accent made it difficult for Mulvey to hear Dique’s
responses to his questions. During questioning, Mulvey noticed
that one of the passengers had a “white powdery substance in his
mustache.” This prompted Mulvey to seek Dique’s written
consent to search the car. Dique consented. Mulvey found
drugs in the car, and he and trooper Vona, who had arrived at
the scene, arrested Dique and the two passengers.2
Nine years later, in June 1999, Dique was convicted in
state court on drug-related charges, arising from the stop.3 He
was sentenced to fifteen years in prison. In April 2002,
however, the State of New Jersey moved to vacate Dique’s
conviction and dismiss the indictment because “colorable issues
of racial profiling” existed at the time of the arrest. Dique was
released from prison three days later.
2
The third appellee, Pagano, was the superintendent of the
New Jersey police department at the time of Dique’s arrest.
3
Officers contend that the nine-year gap was attributed to
Dique becoming a fugitive. This contention cannot be
confirmed by the Record. We are not, however, concerned with
ascertaining the cause of the gap because it is inconsequential
for purposes of this appeal.
5
B. District Court Proceedings
In February 2004, Dique filed suit based on the January
1990 traffic stop, alleging violations of federal law, including 42
U.S.C. §§ 1983 and 1985, and of state law. His list of
defendants included the New Jersey State Police, the State of
New Jersey, and the Officers.4 Dique alleged two section 1983
claims: the first claim’s underlying constitutional violation was
a Fourth Amendment claim for false arrest, and the second’s
was a Fourteenth Amendment claim for selective-enforcement.5
In December 2004, the District Court dismissed Dique’s
federal law claims under Federal Rule of Civil Procedure
12(b)(6) because they were time barred; the court declined to
exercise supplemental jurisdiction over his remaining state law
claims. Dique appealed. In December 2005, we, at the parties’
request, issued a limited remand to the District Court “as to
Dismissal of [Dique’s] Fourth Amendment False Arrest Claim
4
The three Officers are the only remaining are the only
remaining defendants-appellees.
5
To establish a selective-enforcement claim, a plaintiff must
demonstrate (1) that he was treated differently from other
similarly situated individuals, and (2) “that this selective
treatment was based on an ‘unjustifiable standard, such as race,
or religion, or some other arbitrary factor, . . . or to prevent the
exercise of a fundamental right.’” Hill v. City of Scranton, 411
F.3d 118, 125 (3d Cir. 2005) (quoting Holder v. City of
Allentown, 987 F.2d 188, 197 (3d Cir. 1993)).
6
and Fourteenth Amendment Selective Enforcement Claim as
Barred by the Statute of Limitations” in light of our decision in
Gibson, 411 F.3d 427. We retained jurisdiction of the appeal.
On remand, the District Court ruled that Dique’s two §
1983 claims survived in light of Gibson, and it allowed
discovery to proceed. During discovery, the Supreme Court
decided Wallace v. Kato, 549 U.S. 384 (2007). Based on
Wallace, the Officers filed summary judgment motions,
contending that the statute of limitations barred Dique’s claims.
The District Court granted the motions, holding that at no time
following Dique’s arrest in 1990 was there a bar to his bringing
a civil complaint because Dique’s claims did not “necessarily
implicate the conviction.” 6 Analyzing Dique’s selective-
enforcement claim, the court concluded that it had accrued in
January 1990, but that principles of equitable tolling delayed the
running of the statute of limitations until July 24, 2001. On that
date, Dique’s counsel had submitted a certification to a New
Jersey state court that he was aware of 90,000 pages of
documents which revealed a state-wide practice of selective
enforcement based on race. The State, after withholding the
documents for some time, had released them in April 1999 and
November 2000. Thus, the District Court concluded that by July
2001 – over two years before Dique filed suit – Dique had
information vital to his selective-enforcement claim.
6
As we noted in Gibson, a successful claim of selective-
enforcement “would have necessarily invalidated Gibson’s
conviction . . ..” Gibson, 411 F.3d at 441. Thus, success in the
selective-enforcement claim would implicate the conviction.
7
Dique appeals the District Court’s order, arguing that it
erred in holding that his selective-enforcement claim was time
barred.7 We ordered the Clerk of this Court to vacate the stay in
the earlier appeal and to consolidate it with this one.
II. DISCUSSION
We have jurisdiction over this consolidated appeal from
final orders of the District Court under 28 U.S.C. § 1291. We
review the District Court’s grant of summary judgment de novo.
E.g., DIRECTV Inc. v. Siejas, 508 F.3d 123, 125 (3d Cir. 2007).
Furthermore, we apply the same standard as the District Court
in determining whether summary judgment was appropriate.
E.g., U.S. ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88,
94 (3d Cir. 2009).
A. Dique’s Fourteenth Amendment selective-
enforcement claim
Section 1983 does not create substantive rights.
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). It, instead,
provides a federal cause of action for the violation of a federal
right. See id. State law, however, determines when the claim
accrues; state law provides the statute of limitations applicable
to a section 1983 claim. See Wallace, 549 U.S. at 387. A
section 1983 claim is characterized as a personal-injury claim
and thus is governed by the applicable state’s statute of
7
On appeal, Dique abandons his Fourth Amendment false-
arrest claim.
8
limitations for personal-injury claims. Cito v. Bridgewater Twp.
Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989). New Jersey, as
the parties agree, is the applicable state here; it mandates a two-
year statute of limitations period for personal-injury torts. N.J.
Stat. Ann. § 2A:14–2 (West 2004). Thus, a section 1983 claim
arising in New Jersey has a two-year statute of limitations. See
Montgomery v. De Simone, 159 F.3d 120, 126 n.4 (3d Cir.
1998).
State law, unless inconsistent with federal law, also
governs the concomitant issue of whether a limitations period
should be tolled. Wilson v. Garcia, 471 U.S. 261, 269 (1985),
superseded by statute on other grounds, 28 U.S.C. § 1658(a);
Ammlung v. City of Chester, 494 F.2d 811, 815 (3d Cir. 1974).
Under New Jersey law, a statute of limitations can be tolled
based upon equitable principles, including the discovery rule.
Freeman v. State, 788 A.2d 867, 878 (N.J. Super. Ct. App. Div.
2002). The discovery rule postpones a claim from accruing if a
plaintiff is reasonably unaware that he has suffered an injury or,
even though he is aware of the injury, that it was the fault of an
identifiable person. See Caravaggio v. D’Agnostini, 765 A.2d
182, 187 (N.J. 2001). As set out by the New Jersey Supreme
Court, the accrual of the claim will be postponed until the
“injured party discovers, or by exercise of reasonable diligence
and intelligence should have discovered[,] that he may have a
basis for an actionable claim.” Lopez v. Swyer, 300 A.2d 563,
565 (N.J. 1973); see Lapka v. Porter Hayden Co., 745 A.2d 525,
530 (N.J. 2000).
Federal law, on the other hand, governs the issue of what
constitutes accrual. Wallace, 549 U.S. at 388. Accrual is the
9
occurrence of damages caused by a wrongful act – “when a
plaintiff has ‘a complete and present cause of action,’ that is,
when ‘the plaintiff can file suit and obtain relief.’” Id. (quoting
Bay Area Laundry and Dry Cleaning Pension Trust Fund v.
Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). As the Court
in Wallace explained, “‘the tort cause of action accrues, and the
statute of limitations commences to run, when the wrongful act
or omission results in damages.’” Id. at 391 (quoting 1 Calvin
W. Corman, Limitation of Actions § 7.4.1 (1991)).
The parties’ dispute hinges on when Dique’s claim
accrued. What blurs the application here of the accrual rule –
that a claim accrues when the wrongful act results in damages
– is the decision in Heck v. Humphrey, 512 U.S. 477 (1994), that
a claim for malicious prosecution accrues only where “the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question
by a federal court’s issuance of a writ of habeas corpus.” See id.
at 486–87 (footnote omitted). The Court held that Heck’s claim
was not cognizable under section 1983 because recovery would
“necessarily imply the invalidity” of his outstanding conviction.
Id. at 486–87. The Court commented that “the hoary principle
that civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments applies to section
1983 damages actions that necessarily require the plaintiff to
prove the unlawfulness of his conviction or confinement.” Id.
at 486. Heck left open the question of whether a claim is
cognizable under section 1983 if its success would necessarily
imply the invalidity of a future conviction.
10
Following up on this open question, in Smith v. Holtz, 87
F.3d 108 (3d Cir. 1996), we approved the application of Heck to
future convictions in holding “that a claim that, if successful,
would necessarily imply the invalidity of a conviction on a
pending criminal charge is not cognizable under § 1983.” Id. at
113.8 We reasoned that, “[i]n terms of the conflicts which Heck
sought to avoid, there is no difference between a conviction
which is outstanding at the time the civil rights action is
instituted and a potential conviction on a pending charge that
may be entered at some point thereafter.” Id.
Then in Gibson, we applied Heck to defer accrual of a §
1983 selective-enforcement claim in which, at the time the
8
Sister courts of appeal have also extended Heck to
preconviction situations in which a § 1983 claim, if successful,
would necessarily imply the invalidity of a potential or future
conviction. See, e.g., Fox v. DeSoto, 489 F.3d 227, 234 (6th Cir.
2007) (“This court, drawing on the reasoning in Heck . . . ,
joined other courts in extending application of Heck . . . to
certain pre-conviction circumstances. As a result, we held that
when a § 1983 claim would imply the invalidity of a future
conviction, the statute of limitations would not begin to run until
the criminal charges have been dismissed” (alteration in
original) (footnote omitted)); Harvey v. Waldron, 210 F.3d
1008, 1014 (9th Cir. 2000); Beck v. City of Muskogee Police
Dept., 195 F.3d 553 (10th Cir. 1999); Covington v. City of N.Y.,
171 F.3d 117, 124 (2d Cir. 1999); Uboh v. Reno, 141 F.3d 1000,
1006–07 (11th Cir. 1998); Washington v. Summerville, 127 F.3d
552, 556 (7th Cir. 1997).
11
wrongful act resulted in damages, there was no outstanding
conviction but only the prospect of a future conviction. See
Gibson, 411 F.3d at 431–33, 441. Gibson brought a § 1983
action in which he asserted, inter alia, a Fourth Amendment
false arrest claim and a Fourteenth Amendment selective-
enforcement claim. See Gibson, 411 F.3d at 432. The facts in
Gibson mirror those in this case. In 1992, Gibson, an African-
American, was arrested after the car in which he was a
passenger was pulled over on the New Jersey Turnpike. The
New Jersey police officers found drugs and arrested Gibson and
the other occupants of the car. Gibson was then convicted of
state drug-related offenses in 1994. In 2002, however, Gibson’s
conviction was vacated because of colorable racial-profiling
issues. Id. at 432. Gibson filed suit in 2002.9 The District
Court dismissed Gibson’s claims because they were barred by
the statute of limitations. Id. at 431.
We reversed, allowing Gibson to proceed with his § 1983
claims because we concluded that they accrued when his
conviction was vacated in 2002. Id. at 441, 446. Analyzing the
selective-enforcement claim, we reasoned that “[b]ecause a
successful claim of selective enforcement under the Fourteenth
Amendment Equal Protection Clause would have necessarily
invalidated Gibson’s conviction, under the Heck deferred
accrual rule the statute of limitations did not begin to run until
9
Gibson was also, like Dique, aware of the documents
revealing a state-wide practice of selective enforcement based
on race that the State released in April 1999 and November
2000. See Gibson, 411 F.3d at 445.
12
his sentence was vacated and this claim is not untimely.” Id. at
441.
Dique argues that Gibson is binding precedent that we
must follow. The Officers, by contrast, argue that the
Supreme’s Court 2007 decision in Wallace repudiates Gibson
and mandates accrual when the wrongful conduct occurred.
Because an intervening Supreme Court decision is a “sufficient
basis for us to overrule a prior panel’s opinion,” we are able to
bypass our general rule of not overruling a prior panel’s opinion
without referring the case to the full Court. E.g., Lebanon
Farms Disposal, Inc. v. County of Lebanon, 538 F.3d 241, 250
n.16 (3d Cir. 2008).
In Wallace, the Court refused to extend Heck to a § 1983
claim for false arrest in which there was no outstanding
conviction at the time of the accrual, i.e., the arrest. See
Wallace, 549 U.S. at 393. The Court held that “the statute of
limitations upon a § 1983 claim seeking damages for a false
arrest in violation of the Fourth Amendment, where the arrest is
followed by criminal proceedings, begins to run at the time the
claimant becomes detained pursuant to legal process.” Id. at
397. The Court also clarified that the Heck bar is applicable
only when, at the time the § 1983 suit would normally accrue,
there is an existing criminal conviction:
“[T]he Heck rule for deferred accrual is called
into play only when there exists a conviction or
sentence that has not been . . . invalidated, that is
to say, an outstanding criminal judgment. It
13
delays what would otherwise be the accrual date
of a tort action until the setting aside of an extant
conviction which success in that tort action would
impugn.”
Id. at 393 (internal quotation marks omitted). The Court
clarified that it was not holding that “an action which would
impugn an anticipated future conviction cannot be brought until
that conviction occurs and is set aside.” Id.
The impracticality of such a rule should be
obvious. In an action for false arrest it would
require the plaintiff (and if he brings suit
promptly, the court) to speculate about whether a
prosecution will be brought, whether it will result
in conviction, and whether the pending civil
action will impugn that verdict, all this at a time
when it can hardly be known what evidence the
prosecution has in its possession. And what if the
plaintiff (or the court) guesses wrong, and the
anticipated future conviction never occurs,
because of acquittal or dismissal? Does that event
(instead of the Heck-required setting aside of the
extant conviction) trigger accrual of the cause of
action? Or what if prosecution never
occurs—what will the trigger be then?
Id. (citations omitted). Following Wallace, we will not embrace
this “bizarre extension of Heck,” and, accordingly, we hold that
14
Gibson’s (and Smith’s) interpretation of Heck is now supplanted
by Wallace. Henceforth, in a case of selective-enforcement we
will no longer require that the complainant have been convicted
and have had that conviction reversed, expunged or invalidated.
If we were to do so, we would be putting the complainant in the
“bizarre extension of Heck” where the cause of action might
never accrue if there were no prosecution or if there were a
dismissal or an acquittal.
Under Wallace then, the statute of limitations “beg[an] to
run at the time [Dique] bec[ame] detained pursuant to legal
process.” See Wallace, 549 U.S. at 397. When Dique was
stopped on the New Jersey Turnpike, as the Court in Wallace
stated, “there was in existence no criminal conviction that the [§
1983] cause of action would impugn; indeed, there may not even
have been an indictment.” 549 U.S. at 393. Nor, at that time,
could one determine if there would ever be an indictment or a
conviction – this is an important distinction from a Heck-type
case in which malicious prosecution involves the indictment and
trial process, along with the conviction.
Although, as we just noted, a Fourteenth Amendment
selective-enforcement claim will accrue at the time that the
wrongful act resulting in damages occurs, Dique’s claim did not
accrue until July 2001 because the discovery rule postponed
accrual. In 1990 he was reasonably unaware of his injury
because Mulvey purported to stop his car for a speeding
violation. It was not until July 2001, when his attorney became
aware of the extensive documents describing the State’s
15
pervasive selective-enforcement practices, that Dique
discovered, or by exercise of reasonable diligence should have
discovered, that he might have a basis for an actionable claim.
His claim accrued at that time. Because he asserted his
selective-enforcement claim over two years later, the statute of
limitations bars it.10
B. Dique’s remaining arguments
Dique also argues that the District Court erred in its
December 2004 order in dismissing his 42 U.S.C. § 1985
conspiracy claim under Federal Rule of Civil Procedure
12(b)(6). We review the District Court’s decision to dismiss
10
Throughout his briefing, Dique refers interchangeably to a
Fourteenth Amendment selective-prosecution claim, likely
because a selective-prosecution claim could possibly benefit
from the Heck bar. But the two are different Fourteenth
Amendment claims. Compare Hill, 411 F.3d at 125 (stating the
elements of a selective-enforcement claim), with Gov’t of Virgin
Islands v. Harrigan, 791 F.2d 34, 36 (3d Cir. 1986) (stating the
elements of a selective-prosecution claim). Dique failed to raise
a selective-prosecution claim in his pleadings or motions before
the District Court. As such, it is waived on appeal. E.g.,
DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 n.1 (3d Cir. 2007)
(“It is well established that arguments not raised before the
District Court are waived on appeal.”); Huber v. Taylor, 469
F.3d 67, 74 (3d Cir. 2006).
16
under Rule 12(b)(6) de novo. E.g., Phillips v. County of
Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
Dique’s argument fails for two reasons. First, he waived
this argument by not raising it before the District Court. His
complaint merely lists 42 U.S.C. § 1985 in a list of statutes
conferring jurisdiction. He, however, did not provide the
elements of the claim in any of the seven counts (nor, for that
matter, anywhere else in the complaint). See Ammlung, 494
F.2d at 814 (holding that Ammlung’s complaint failed to plead
a conspiracy claim because she neglected to assert any facts
related to the claim’s elements). Second, even if we found the
argument had been preserved, the statute of limitations had
expired. A section 1985 claim accrues when a plaintiff knew or
should have known of the alleged conspiracy. Bougher v. Univ.
of Pitts., 882 F.2d 74, 80 (3d Cir. 1989). The New Jersey two-
year statute of limitations applies to section 1985 claims and
runs from the date of each overt act causing damage to a
plaintiff. See Cito, 892 F.2d at 25; Bougher, 882 F.2d at 80.
Because Dique was reasonably unaware of his injury based on
the Officers’ alleged conspiracy, the discovery rule postponed
accrual until July 2001. Due to the fact, however, that he filed
his conspiracy claim more than two years later, it, like his
selective-enforcement claim, is time barred.11
11
Dique’s final argument is incoherent. He simply states that
Pagano “is properly named as a party because of his direct
involvement in the constitutional violations.” But the District
Court never even intimated otherwise. Moreover, whether
17
III. CONCLUSION
For the reasons explained above, we conclude that the
two-year statute of limitations bars Dique’s 42 U.S.C. §§ 1983
and 1985 claims. We will thus affirm the District Court’s order
granting summary judgment for the Officers.
Pagano is properly joined in this suit is immaterial since the
statute of limitations bars disposition on the merits.
18