Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-12-2008
Hernandez v. Cty of Union Cty
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2367
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-2367
CLEMENTE HERNANDEZ,
Appellant
v.
CITY OF UNION CITY; DEPT OF POLICE
OF THE CITY OF UNION CITY;
JOSE RODRIGUEZ, Detective; CARLOS SEGARRA;
OMAR HERNANDEZ; MENDEZ; LORENTE;
MARK A. JULVIE, Sargent; DENNIS KOHREHERR, Lieutenant;
JOHN DOE, 1 through 50 being fictitious
name for one or more Police Officers, Peter Doe,
1 through 50 being fictitious name designating one or more
officials of City of Union City
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cv-01935)
District Judge: Honorable Dennis M. Cavanaugh
Submitted Under Third Circuit LAR 34.1(a)
February 11, 2008
Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges
(Filed: February 12, 2008)
____
OPINION
SLOVITER, Circuit Judge.
Clemente Hernandez (“Appellant”) appeals the District Court’s grant of summary
judgment in favor of defendants City of Union City, the Police Department of Union City,
and various individual city officers and detectives (“Appellees,” collectively), against
whom he made claims under 42 U.S.C. § 1983 and under state law based on his arrest on
June 4, 2002.
I.
As we write primarily for the parties, we limit our recitation of the facts to those
pertinent to our disposition. According to police reports, the Union City Police
Department received a detailed tip on May 15, 2002 from an anonymous caller with a
description of a man selling drugs at the corner of 49th Street and Palisades Avenue. The
police had previously received numerous complaints regarding the distribution of drugs in
that area, and thus undertook an undercover investigation. Detective Rodriguez
approached a man fitting the description given by the caller and purchased from him what
was later confirmed to be crack cocaine.
Detective Hernandez, who followed a short distance behind Detective Rodriguez
along with Detective Segarra, testified that he recognized Appellant after observing him
directly for approximately ten to twelve seconds. Detective Hernandez lived on the same
street as Appellant, he had spoken to him several times, and he had appeared at
Appellant’s house because of complaints by Appellant’s wife of domestic disputes or
2
harassment. Detective Hernandez showed a photograph of Appellant to the other two
detectives involved in the undercover operation, who identified Appellant as the seller of
the drugs.
At Appellant’s state trial, Detective Hernandez testified that Appellant was not
arrested on May 15, 2002 to preserve the identity of the undercover officer. Detective
Hernandez and Sergeant Julvie arrested Appellant on June 4, 2002, and he was indicted
by a New Jersey grand jury on August 14, 2002 for violating New Jersey narcotics laws.
A jury acquitted Appellant of all charges on December 4, 2003, and he filed this suit
shortly thereafter.
The District Court granted defendants’ motion for summary judgment, finding that
the officers had probable cause to arrest Appellant, that their investigation did not violate
Appellant’s substantive due process rights, that there was no procedural due process
violation, and that Appellant’s state law claims of negligent infliction of emotional
distress, malicious abuse of process, and false arrest were barred by the New Jersey Tort
Claims Act, N.J. Stat. Ann. § 59:1-2, et seq.
II.
This court has “plenary review over the District Court’s grant of summary
judgment and appl[ies] the same standard as the District Court.” McGreevy v. Stroup,
413 F.3d 359, 363 (3d Cir. 2005) (citation omitted). Summary judgment shall be granted
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together
3
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.” Fed. R. Civ. P. 56(c).
To establish a claim under 42 U.S.C. § 1983, a plaintiff must show “(1) whether
the conduct complained of was committed by a person acting under color of state law 1
and (2) whether the conduct deprived the complainant of rights secured under the
Constitution or federal law.” 2 Sameric Corp. of Del., Inc. v. City of Philadelphia, 142
F.3d 582, 590 (3d Cir. 1998). The validity of the constitutional claims must “be judged
by reference to the specific constitutional standard which governs that right . . . .”
Graham v. Connor, 490 U.S. 386, 394 (1989).
Appellant alleges his arrest violated the Fourth Amendment because the police did
1
There is no dispute that the individual Appellees are
“persons” acting under color of state law. Union City is subject to
liability under § 1983 for injuries caused by its official policies and
customs. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978); Couden v. Duffy, 446 F.3d 483, 500 (3d Cir. 2006).
However, because Appellant has alleged no facts supporting the
claim that a municipal policy or custom caused the alleged injuries,
summary judgment was proper as to the City. Moreover, because
the Police Department is merely an arm of the City, and not a
separate entity, it is not the proper entity to sue under § 1983. See
N.J. Stat. Ann. § 40A:14-118 (proclaiming that New Jersey police
departments are “an executive and enforcement function of
municipal government”).
2
Although Appellees raised a qualified immunity defense,
we must first “ascertain whether a constitutional violation has been
alleged before determining if qualified immunity is available.”
Miller v. City of Philadelphia, 174 F.3d 368, 374 (3d Cir. 1999)
(emphasis in original).
4
not have probable cause to arrest him. Although “[p]robable cause to arrest requires more
than mere suspicion . . . it does not require that the officer have evidence sufficient to
prove guilt beyond a reasonable doubt.” Orsatti v. N.J. State Police, 71 F.3d 480, 482-83
(3d Cir. 1995). The probable cause determination is generally made by the trier of fact;
however, “a district court may conclude ‘that probable cause exists as a matter of law if
the evidence . . . reasonably would not support a contrary factual finding.’” Merkle v.
Upper Dublin School Dist., 211 F.3d 782, 788-89 (3d Cir. 2000) (citation omitted).
We agree with the District Court that the police officers had probable cause to
arrest Appellant based on the detailed anonymous tip, the subsequent corroborating
undercover investigation and controlled buy, and Detective Hernandez’s on-scene
identification of Appellant, all of which are undisputed.3 Appellant’s arguments
regarding the “fabrication” of the charges against him, the “lame” explanation given as to
why the arrest occurred several weeks after the controlled buy, inconsistencies relating to
the photographic identification, and Appellant’s Notice of Alibi are either speculations
without evidentiary support or do not create a dispute as to the material facts relevant to
the analysis of Appellant’s false arrest claim. Because “[t]he test for an arrest without
probable cause is an objective one, based on ‘the facts available to the officers at the
moment of arrest,’” Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)
(citation omitted), the fact that Appellant offered a post-arrest Notice of Alibi is irrelevant
3
Appellant did not contest his arrest at trial.
5
where there is no evidence the officers knew of that alibi at the time of the arrest.
Moreover, Appellant’s emphasis on his acquittal is also misplaced, for “[e]vidence that
may prove insufficient to establish guilt at trial may still be sufficient to find the arrest
occurred within the bounds of the law.” Id.; see also Michigan v. DeFillippo, 443 U.S.
31, 36 (1979). The undisputed facts demonstrate that the officers had a reasonable basis
to believe Appellant had committed a crime.4
With respect to Appellant’s claim of a substantive due process violation, the
Appellees cite to Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000), where we rejected the
defendant’s “attempt[] to inject a due process argument into what is primarily a fourth
amendment claim . . . [–] that the officers were negligent in their investigation . . . [–
because] negligence by public officials is not actionable as a due process deprivation of a
civil right.” Id. at 789 n.5 (citing Orsatti, 71 F.3d at 484). “Negligent police work, even
if proven, does not violate the due process clause.” Id. at 781 n.1. Liability only exists
for “the most egregious official conduct” that is “so ill-conceived or malicious that it
‘shocks the conscience.’” Miller, 174 F.3d at 375 (certain citations and internal quotation
marks omitted). We agree with the District Court that Appellant’s claims have not met
this standard. Appellant does not support his claims of “outright active lies” by the police
4
Because Appellant also frames his procedural due process
and Fifth Amendment claims on appeal in terms of his warrantless
arrest without probable cause, these claims replicate his Fourth
Amendment claim and we reject those claims for the same reason.
6
with evidence in the record, and any police conduct with respect to the involvement of
additional officers, such as Sergeant Julvie, possible inconsistency in the reports,
discrepancy over the buy money, or confiscation of Appellant’s money at the time of his
arrest, does not, as a matter of law, shock the conscience.
Appellant’s state law claims are governed by the New Jersey Tort Claims Act
(“TCA”), N.J. Stat. Ann. § 59:1-2, et seq., which sets forth procedures for making claims
against public entities and public employees, see id. § 59:8-3. The Act requires a
claimant to provide a notice of claim to the public entity or public employee within ninety
days of the accrual of a cause of action, or otherwise to move to file a late notice within
one year of the accrual date. Id. § 59:8-8, :8-9. The accrual date under the TCA is
generally the date on which the alleged tort is committed. See Beauchamp v. Amedio,
751 A.2d 1047, 1050 (N.J. 2000). Appellant did not file his Notice of Claim against
Appellees until February 2, 2004.
Although the District Court correctly dismissed Appellant’s negligent infliction of
emotional distress claim based on his failure to file proper notice under the TCA,5 such is
not the case regarding his intentional tort claims. See Velez v. City of Jersey City, 850
A.2d 1238, 1246 (N.J. 2004) (interpreting TCA’s notice requirements to apply also to
5
The Court found that the cause of action accrued on June
4, 2002, the date of the arrest. Because the Notice of Claim was
filed well after the ninety-day time limit, or September 4, 2002,
Appellant’s claim was dismissed. We agree with this
determination.
7
claims for intentional torts, but stating that the holding “applied prospectively to all
similar causes of action accruing after [June 29, 2004]”). Nevertheless, we need not
remand to the District Court for further proceedings because both the false
arrest/imprisonment and malicious prosecution claims require the absence of probable
cause.6 See Wildoner v. Borough of Ramsey, 744 A.2d 1146, 1154 (N.J. 2000)
(“[P]robable cause is an absolute defense to Plaintiff’s false arrest, false imprisonment,
and malicious prosecution claims . . . .”).
III.
For the above-stated reasons, we will affirm the judgment of the District Court.
6
Although the District Court construed Appellant’s claim
as one of malicious abuse of process, Appellant clarifies on appeal
that “[t]he state claim to which we refer here is the claim of
malicious prosecution.” Appellant’s Reply Br. at 11.
8