NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3083
_____________
MOHAMMAD MAHMOUD,
Appellant
v.
CITY OF PATERSON; POLICE CHIEF JAMES WIDDING;
POLICE DIRECTOR MICHAEL WALKER
On Appeal from the District Court
for the District of New Jersey
(District Court No.: 2-10-cv-05711)
District Judge: Honorable Dickinson R. Debevoise
Submitted under Third Circuit LAR 34.1 (a)
on March 19, 2015
Before: McKEE, Chief Judge, RENDELL and FUENTES, Circuit Judges
(Filed: May 7, 2015)
O P I N I O N*
RENDELL, Circuit Judge:
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Plaintiff-Appellant Mohammad Mahmoud appeals from the District of New
Jersey’s grant of summary judgment on his § 1983 and § 1981 claims against the City of
Paterson, Police Chief James Widding, and Police Director Michael Walker. For the
reasons stated below, we will affirm.
I. Background
Mahmoud is a Muslim-American who was hired by the Paterson Police
Department in 2001. In 2004, Mahmoud was accused of committing domestic violence
against his wife. Mahmoud was charged with simple assault, and his firearm was taken
away pursuant to the Attorney General Guidelines on Domestic Violence. As part of an
investigation by County Prosecutor Wronko, Police Chief Widding was asked to
complete a form regarding his recommendation as to whether Mahmoud should be
rearmed. Widding recommended that Mahmoud not be rearmed. The Prosecutor then
embarked upon an investigation in which he reviewed the details of the domestic
violence incident, interviewed Mahmoud’s wife, her sister and mother, reviewed
Mahmoud’s original hiring psychological evaluation and an additional psychological
evaluation conducted after the incident, and evaluated his fitness for duty reports. This
investigation culminated in the Prosecutor’s determination that Mahmoud not be
rearmed.
In November 2010, Mahmoud brought an action under § 1983 and § 1981 against
the City of Paterson, Police Chief Widding, and Police Director Walker, alleging that the
decision not to rearm him was discriminatory because the Prosecutor had a history of
permitting other non-Muslim police officers with similar and sometimes worse records to
2
be rearmed. Mahmoud argued that the County Prosecutor, who he acknowledged had the
final say on re-armament decisions, simply “rubber-stamped” the recommendation of the
police department.
The District Court found these arguments unavailing based on the Prosecutor’s
extensive investigation that included a review of psychiatric evaluations, which contained
red flags regarding Mahmoud’s fitness for duty, which a hearing officer relied on as the
basis for his termination. The District Court further stated that the final rearmament
decision belonged to the Prosecutor, who was not named as a defendant, and that the
individual Defendants were entitled to qualified immunity for their recommendation to
the Prosecutor. Finally, the District Court found Mahmoud’s discrimination charge
unsubstantiated by the record.
Mahmoud now appeals the District Court’s grant of summary judgment, claiming
1) the District Court incorrectly granted qualified immunity to the City and individual
Defendants; and 2) the District Court erred in failing to conduct a proper McDonnell-
Douglas analysis for his discrimination claim.1
II. Discussion
1
Mahmoud also brought a collateral estoppel claim, arguing that the administrative
proceedings regarding his rearmament and termination on which the District Court relied
should not have had a preclusive effect because the issue of unlawful discrimination was
not fully and fairly litigated in those proceedings. However, the District Court never held
that Mahmoud was precluded from asserting his claims; only that the extensive a and
administrative proceedings, in which Mahmoud was deemed unfit to be rearmed,
demonstrated that the police department’s decision was objectively reasonable and made
in good faith. Mahmoud was also not precluded from appealing these adverse
administrative rulings pursuant to N.J. Court Rule 2:2-3(a)(1) and (2). Therefore, his
argument is unfounded.
3
This Court has plenary review over the decision to grant summary judgment.
Intermilo, Inc. v. I.P. Enterprises, Inc., 19 F.3d 890, 892 (3d Cir. 1994). Summary
judgment is appropriate “if the pleadings, depositions, answers to the interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for
summary judgment has the burden of showing that no genuine dispute of material fact
exists. Id. at 323. A moving party may discharge its burden by showing that there is an
absence of evidence to support the non-moving party’s case. Id. at 325. If the moving
party can make such a showing, then the burden shifts to the non-moving party to present
evidence that a genuine factual dispute exists. Id. at 324. In deciding whether a dispute
of material fact exists, the Court must consider all facts and their reasonable inferences in
the light most favorable to the non-moving party. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231,
236 (3d Cir. 1995).
Mahmoud claims that the District Court incorrectly granted qualified immunity to
the individual Defendants. An analysis of qualified immunity involves two issues: (1)
whether a government official’s conduct violates a constitutional right, and (2) whether
such right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The
contours of a right must be sufficiently clear such that a reasonable official would
understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S.
635, 640 (1987). Municipalities, on the other hand, may be held liable under § 1983 or §
1981 only if a plaintiff demonstrates that (1) an unconstitutional policy or custom (2)
4
attributable to the municipality (3) caused an official to inflict a constitutional injury
upon the plaintiff. Monell v. Dept of Soc. Servs., 436 U.S. 658, 663 (1978).
Mahmoud contends that he was discriminated against and terminated based on his
national origin, and that the Defendants “caused the Passaic County Prosecutor to refuse
to return” his firearm. Compl. at 4; App. 31. While the facts reveal that Police Chief
Widding did indeed “recommend” that Mahmoud not be rearmed, the record reveals that
his termination resulted from a lengthy investigation, and was ultimately decided by the
Prosecutor, not from any acts of Widding or Walker. The only fact of record regarding
the role that Police Chief Widding’s recommendation may have had is Prosecutor
Wronko’s testimony that such a recommendation is “influential” but not “persuasive.”
App. 89-90. This, together with the details of the extensive review process conducted by
the Prosecutor before making his determination, demonstrate that Mahmoud has not
proven what his complaint alleges, namely, that Widding or Walker “caused” his
termination. Indeed, as the District Court found, Mahmoud’s charge is “simply
unsubstantiated by the record.” Mahmoud v. City of Paterson, No. CIV. 10-5711 DRD,
2014 WL 2155370, at *6 (D.N.J. May 22, 2014); App. 11. Thus, Mahmoud failed to
make out a prima facie case of discrimination, and the adverse employment action was
that of Prosecutor Wronko, not Widding or Walker. To the extent that it could be argued
that the recommendation alone was an adverse action, Mahmoud has not shown that
5
Widding or Walker bore any discriminatory animus2 towards him, or that discrimination
could be inferred based on their treatment of officers “similarly situated.”3
In the absence of an “adverse action” by the Defendants, a McDonnell-Douglas
burden-shifting analysis was not required by the District Court. Additionally, in the
absence of any constitutional violation—here, not proven—qualified immunity was
properly granted, and there was no need to address the City’s liability.
III. Conclusion
Mahmoud failed to name the County Prosecutor, the individual who made the
final decision not to rearm him, as defendant in his § 1981 and § 1983 actions. He failed
to demonstrate that any discriminatory animus motivated either the Prosecutor’s or Police
Chief Widding’s decision not to recommend his rearmament. The District Court
2
Abramson v. William Paterson College of New Jersey, where this Court held that a
recommendation not to give an Orthodox Jewish professor tenure at a university
demonstrated a prima facie case of employment discrimination is distinguishable because
the plaintiff in Abramson provided ample evidence of discrimination laden in the
recommendation that is simply absent here. 260 F.3d 265 (3d Cir. 2001). In Abramson,
the defendant employer complained repeatedly that the plaintiff was unavailable on
Fridays and Saturdays due to Sabbath observation prior to sending the objected-to
recommendation letter. Id. at 279. Here, besides Mahmoud’s general allegation that he
was subjected to racially derogatory remarks, none of which he attributed to Widding or
Walker, with nothing further, fails to demonstrate that Widding or Walker held any racial
animus toward him. Additionally, while Widding may have recommended that other
police officers be rearmed after domestic violence incidents, this alone does not prove
discriminatory intent. Finally, in Abramson, the plaintiff named the correct defendant for
purposes of Title VII and the New Jersey Law Against Discrimination (“NJLAD”). Id. at
267. The same is not true here. Mahmoud has not named the Prosecutor, who made the
final decision not to rearm him, as a defendant in his § 1981 and § 1983 actions.
3
As the District Court noted, the treatment of other officers is highly “specific and
contextual.” App. 12. Moreover, while Mahmoud’s counsel questioned Wronko at
length regarding the disarming decisions of several other officers, no testimony of
Widding or Walker regarding their undue influence in any of these specific situations has
been presented to us.
6
therefore correctly granted qualified immunity to the individual Defendants, and correctly
denied Mahmoud’s claims as to the City of Paterson for failure to demonstrate a
constitutional violation. As such, we will affirm.
7