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ALI v. PERSON

November 15, 1995

AL-WAHID ALI, Plaintiff,
v.
OFFICER MICHAEL PERSON, et al., Defendants.



The opinion of the court was delivered by: WOLIN

 Plaintiff Al Wahid Ali ("Ali") has brought this civil rights action against East Orange police officers Hilliard Edmond ("Edmond") and Michael Person ("Person") and against the City of East Orange and the East Orange Police Department. Before the Court are the motions of all four defendants for summary judgment. The Court has considered these motions on the parties' written submissions pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court will grant Person's motion. Edmond's motion will be granted in part and denied in part. Finally, the Court will grant summary judgment in favor of defendants City of East Orange and the East Orange Police Department.

 BACKGROUND

 Ali's complaint is based on alleged actions of Person and Edmond taken under color of law. He alleges that both Person and Edmond were part of a conspiracy to deprive him of his liberty, allegedly because they knew of Edmond's sister's charge that Ali had raped her. He also alleges that Edmond assaulted him, violating his rights under the Constitution.

 On or about October 11, 1991 police officers Person and Benny Powell became involved in a high speed chase which culminated in a crash of the vehicle they were chasing. The driver and one of its occupants escaped, but Person and Powell arrested a third occupant, one James Diggs. A search of the vehicle yielded a wallet containing Ali's drivers license in the glove compartment and a handgun on the floorboard. Ali admits the vehicle was his but asserts that Diggs has admitted he stole the car. On October 21, 1991 Ali was arrested, charged with unlawful possession of a weapon, and incarcerated.

 At some time in early January, Edmond's sister charged Ali with aggravated sexual assault and other crimes. On or about January 9, 1992 Ali was at the East Orange Police Headquarters, apparently on his own accord, where he encountered Edmond, who had just learned of his sister's rape charge. Ali alleges, and a non-party witness has testified, that Edmond assaulted him. Ali also alleges that other police officers at the scene assaulted him and that still other police officials conspired to cover up the incident. He does not specifically allege that Person was involved in the assault or the cover-up.

 On January 29, 1992, James Diggs and Ali were indicted. Person testified at both the grand jury hearing and at Ali's later trial. Ali points to an inconsistency in Edmond's testimony at these two proceedings to assert that Person perjured himself at the grand jury hearing, allegedly in furtherance of the conspiracy between himself, Edmond and others to deprive Ali of his liberty without due process.

 DISCUSSION

 I. Summary Judgment Standard

 Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The party moving for summary judgment must show that there is no genuine issue of material fact; once the moving party has sustained this burden, the opposing party must introduce specific evidence showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Williams v. Borough of West Chester, 891 F.2d 458, 464 (3d Cir. 1989).

 A genuine issue is not established unless the evidence, viewed in a light most favorable to the nonmoving party, would allow a reasonable jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Radich v. Goode, 886 F.2d 1391, 1395 (3d Cir. 1989). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2510-11; Radich, 886 F.2d at 1395.

 Rule 56(c) mandates summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to his case on which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322; Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987). Rule 56(e) requires the nonmoving party to go beyond the pleadings and, by affidavits, depositions, interrogatory answers and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24; see also Williams, 891 F.2d at 466 n.12 (nonmoving party must produce evidence that can be reduced to admissible form at trial).

 II. Conspiracy

 The complaint does not properly allege a conspiracy to deprive Ali of his civil rights. Under 42 U.S.C. § 1985(3), a plaintiff must allege a conspiracy that is "motivated by 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus.'" W.B. v. Matula, 67 F.3d 484, 503, 1995 WL 606970, *18 (3d Cir.), quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). See also Dunn v. New Jersey Transit Corp., 681 F. Supp. 246, 251 (D.N.J. 1987) (citations omitted) ("§ 1983 does not provide a remedy for a conspiracy to deny the right to due process, as opposed to the right to equal protection under the ...


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