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MORALES v. BUSBEE

June 20, 1997

JAVIER MORALES, Plaintiff,
v.
MAURICE BUSBEE, BRUCE GILBERT, and JAMES W. GRAHAM, Defendants.



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 This is a case brought pursuant to 42 U.S.C. § 1983 in which plaintiff, Javier Morales, seeks damages for his arrest, imprisonment, and indictment, which were allegedly carried out by the defendants with malice and without probable cause. Presently before the court are defendants' motions for summary judgment as to all counts of plaintiff's complaint. As explained below, defendant Busbee's summary judgment motion will be granted. The remaining defendants' summary judgment motions will be granted in part and denied in part.

 Background

 On December 15, 1992, defendant Maurice Busbee, a Camden City Police Officer, was on patrol when he observed a white elderly man riding in an automobile along with two young Hispanic males. (Pl. Ex. 2). It was later determined that the elderly man's name was Robert Cooper. At a traffic light, Busbee stopped his police car along the side of the other automobile to ask the occupants some questions. (Id.). Because Cooper, who was sitting in the front passenger seat, appeared very nervous, Busbee instructed the driver of the car to pull the vehicle over to the side of the road. (Id.). Instead of pulling over, however, the driver drove away at a very fast speed. (Id.). Busbee pursued the car, and then watched as the car crashed into a fire hydrant. (Id.). The two Hispanic males fled from the car, and Busbee called for backup. (Id.).

 The Camden City police officers responding to Busbee's call were not able to find the driver of the car, but they did apprehend the second Hispanic occupant of the car, named Hector Sepulveda. After waiving his Miranda rights, Sepulveda confessed to law enforcement authorities that he and a second individual had kidnapped Cooper and seized his car at gunpoint. (Df. Ex. 3, at 4-5) *fn1" During the interrogation, Sepulveda stated that he knew his accomplice only by the nickname of "Kung Fu," and that Sepulveda and Kung Fu had become acquainted through Kung Fu's sister. (Df. Ex. 3, at 2-3; Df. Ex. 4, at 4). Sepulveda and Kung Fu's sister both lived in Vineland, New Jersey at the time. (Df. Ex. 4 at 3-4). Sepulveda described Kung Fu to the investigating officers as Hispanic, approximately six foot tall, with black or brown eyes, a shaved head, and a "husky" build. (Df. Ex. 3, at 6-7).

 Sepulveda explained that one day prior to the carjacking, Kung Fu had asked Sepulveda if he wanted to come to Camden with him, purportedly to visit Kung Fu's mother. (Df. Ex. 4, at 4). Sepulveda agreed, and the two men drove from Vineland to Camden in Kung Fu's pick-up truck. (Id.). Sepulveda further told the investigating officers that while in Camden, Kung Fu and Sepulveda were pulled over by a police officer and were issued summonses for driving an unregistered vehicle, driving an uninsured vehicle, and driving a vehicle with fictitious license plates. (Df. Ex. 5). The police also impounded the pick-up truck. (Df. Ex. 4 at 5). Sepulveda and Kung Fu slept in Camden that night at a house belonging to Kung Fu's mother. (Id.).

 Sepulveda further explained during the interrogation that the next day, he and Kung Fu went "looking for a car." (Id.). They eventually came upon Cooper as he was entering his car at a restaurant in Pennsauken, New Jersey. (Id.). They kidnapped Cooper at gunpoint and took possession of his car. (Id.). They then drove the car into Camden, where they encountered Officer Busbee. (Id. at 6-7).

 The Pennsauken Police Department, the Camden County Prosecutor's Office, and the federal Bureau of Alcohol, Tobacco, and Firearms ("ATF") each participated in the ensuing investigation designed to identify and apprehend "Kung Fu." Among the officers conducting the investigation were defendant James Graham, a detective with the Pennsauken Police Department, and defendant Bruce Gilbert, an investigator for the Camden County Prosecutor. (Df. Ex. 3, 4).

 After an interview with Kung Fu's mother proved unhelpful, the investigating officers decided to attempt to locate Kung Fu by tracing the vehicle identification number of the impounded pick-up truck that Kung Fu had driven from Vineland to Camden. (Df. Ex. 8). A computer search revealed that the pick-up truck was registered to Richard Rodriguez of 419 Boyd Street, Camden, New Jersey. (Id.). Defendant Graham and defendant Gilbert proceeded to question Rodriguez, who stated that he had indeed owned the pick-up truck in question, but that he had sold it just a week or two earlier. (Id.). Rodriguez described the buyer of the truck as a Puerto Rican male, but said that he did not know his name. (Id.). Rodriguez explained that he had met the buyer through one of Rodriguez's neighbors, who lived at 387 Boyd Street. (Id.).

 The officers then proceeded to interview the neighbor, named Joan Torres. Ms. Torres informed the officers that the person who had purchased Rodriguez's truck was her brother, Javier Torres Morales. Ms. Torres told the officers that her brother lived somewhere in Vineland. (Id.).

 The investigating officers then ran a police computer search, which revealed that someone by the name of Javier Morales-Torres had been arrested in Mount Olive, New Jersey in September 1991 for selling cocaine. (Df. Ex. 9). Mount Olive police records indicated that Mr. Torres resided at 237 Bruckner Avenue, Staten Island, New York. (Id.). The Mount Olive Police Department forwarded to defendant Graham a picture of Mr. Torres, who is the plaintiff in this case. (Df. Ex. 8). The Mount Olive arrest report described plaintiff as a Hispanic male, 5' 10", 190 lbs., with brown eyes and brown hair. (Df. Ex. 9). The Mount Olive police report also indicated that Mr. Torres was also known as Javier Morales. (Id.).

 At the heart of this case are the facts that led the investigating officers to conclude that plaintiff, Javier Morales, was the same Javier Torres Morales who owned the pick-up truck and had robbed and kidnapped Robert Cooper. The investigating officers answered this question in the affirmative after showing the photograph forwarded by the Mount Olive police to Hector Sepulveda, Richard Rodriguez, and defendant Busbee.

 The record, however, contains conflicting evidence concerning what occurred during these three attempts to have a witness identify this plaintiff as "Kung Fu." After placing plaintiff's picture in a photo array, defendant Gilbert showed the array to Sepulveda for identification of Kung Fu. (Df. Ex. 8). According to Gilbert, upon being presented with the photo array, Sepulveda "just clammed up" and stated that he would no longer cooperate with the investigators. (Df. Ex. 11, at 27). Defendant Graham has essentially the same recollection. (Df. Graham Ex. 1). On the photo array identification form, however, Sepulveda drafted and signed a statement that provides: "From the pictures shown to me I wasn't able to identify Kung Fu." (Df. Ex. 10). That statement indicates that Kung Fu's picture was not among the array, which is different than the claim that Sepulveda simply refused to cooperate.

 Subsequently, on December 29, 1992, Richard Rodriguez reviewed the photo array at the Camden County Prosecutor's Office and identified plaintiff's picture as the picture of the man to whom he sold his truck. (Df. Ex. 8; Df. Ex. 12). Rodriguez, in fact, signed his name to the back of the picture he identified as the truck buyer. (Df. Ex. 13). However, since the time he made that identification, Rodriguez has signed a statement indicating that his identification of plaintiff was tainted by defendant Graham. Rodriguez's statement provides:

 
[A few days before the presentation of the photo array at the prosecutor's office, defendant Graham] visited me at work. He showed me . . . nine black and white photos. I picked out the wrong photo of the guy who bought my truck. He told me which one was the right one. I explained . . . that they all looked the same to me. . . . A few days later, a white detective came to my work to ask me to go to the prosecutor's office in Camden, which I did. . . . They showed me another folder of black and white photographs. . . . I explained that I really didn't get a good look at the buyer because he had been in such a hurry. . . . I did, however, choose the photo that [defendant Graham] had pointed out to me a couple of days before.

 (Pl. Ex. A). When confronted with these accusations at his deposition, defendant Graham testified that he could not remember whether he had visited Rodriguez at work and showed him a photo array. (Pl. Ex. B). Graham also testified that he does not remember whether Rodriguez might have picked out the "wrong" photo at that time. (Id.). *fn2"

 Also on December 29, defendant Officer Busbee appeared at the Camden County Prosecutor's Office to attempt to make an identification of "Kung Fu" from the photo array. Defendant Gilbert testified at his deposition that Busbee identified plaintiff as Kung Fu without any hesitation or equivocation. (Df. Ex. 11). ATF Agent Kathleen Plasha also has testified that Busbee picked out plaintiff's picture and that Busbee did not seem to have any doubt about the identification. (Pl. Ex. 2). Busbee's identification of plaintiff's picture was also confirmed by defendant Graham. (Df. Ex. 8; Df. Ex. 14). At his deposition, however, Busbee insisted that he had not been able to pick out Kung Fu's picture from the photo array: "I couldn't identify the driver at all, because like I say I never had eye contact with him, I never focused on the driver of the car. . . ." (Df. Ex. 15). Moreover, unlike Richard Rodriguez, defendant Busbee did not sign the back of any of the photographs in the array. Thus, there is credible evidence that indicates that neither Busbee, Sepulveda, or Rodriguez gave a proper identification of plaintiff as Kung Fu.

 The police never went back to speak with Joan Torres, Kung Fu's sister, to show her the picture of the suspect and ask her if the suspect was indeed her brother. (Df. Ex. 14). Similarly, the investigators did not ask Ms. Torres for her brother's birth date to confirm that the suspect in the Mount Olive arrest report had the same birth date as her brother, which would have indicated that the two men were actually the same person. At his deposition, defendant Graham explained that he did not return to Ms. Torres's residence because the first time he spoke with her she had been "totally uncooperative" and "reluctant to talk." (Id.).

 On December 30, 1992, defendant Gilbert caused a warrant to be issued for the arrest of plaintiff. (Df. Ex. 16). The warrant contained plaintiff's date of birth and social security number as copied from the Mount Olive arrest report. The warrant listed merely "statement of co-defendant" as the probable cause for the arrest. (Df. Ex. 16).

 On or about February 19, 1993, evidence against plaintiff was presented to a grand jury. Defendant Gilbert testified at the grand jury proceeding, explaining how the investigators had learned that Kung Fu's real name was Javier Torres Morales and how the Mount Olive police report had led the investigators to plaintiff. Gilbert told the grand jurors that Rodriguez and Busbee had both identified plaintiff as the man known as Kung Fu. (Df. Ex. 17). The grand jury subsequently indicted plaintiff.

 On March 11, 1993, plaintiff, a resident of Staten Island, New York, was stopped for a motor vehicle violation on the Verrazano Bridge. When the apprehending officers learned of the outstanding New Jersey arrest warrant concerning plaintiff, plaintiff was arrested and incarcerated at the Camden County Jail. (Compl. P 11). Plaintiff was allegedly stabbed and injured in two assaults while incarcerated. (Id. P 15). He remained in the Camden County Jail until August 6, 1993, when he secured his release upon posting bail. (Id. P 12). Plaintiff alleges that throughout his period of incarceration, he maintained that he was innocent and was the victim of mistaken identity. (Id. P 13). On December 12, 1994, after twenty-four months of investigation, the Camden County Prosecutor's office agreed to dismiss all charges against plaintiff "based upon mistaken identification." (Id. P 14).

 Plaintiff thereafter filed his complaint in this case, alleging, among other claims, malicious prosecution and false arrest under 42 U.S.C. § 1983. In late-1996 and early-1997, each of the three named defendants in the complaint (Gilbert, Graham, and Busbee) moved for summary judgment, contending that there exists no genuine issue of material fact in this case and that defendants are entitled to judgment as a matter of law.

 Discussion

 I. Summary Judgment Standard

 A court may grant summary judgment when the materials of record "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); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

 In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("The nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").

 The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. ...


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