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May 25, 1999


The opinion of the court was delivered by: Orlofsky, District Judge.


Defendants' motion for summary judgment presents two novel issues of law unresolved in this Circuit. First, I must determine the appropriate legal standard to be applied to a civil rights claim for malicious prosecution brought pursuant to 42 U.S.C. § 1983 in the wake of Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and two recent Third Circuit decisions construing Albright, namely, Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998), and Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998). Second, I must next determine whether and in what circumstances a civil rights plaintiff may maintain a malicious prosecution action based on one groundless accusation, when probable cause existed for one or more other accusations made in the same criminal complaint.

On June 8, 1996, after a domestic dispute with a former boyfriend, Plaintiff, Shannon Kellie Luthe ("Luthe"), was arrested and charged with burglary, harassment, and criminal mischief. Luthe was acquitted on all these charges on September 20, 1996. On October 29, 1997, Luthe filed a civil rights complaint pursuant to 42 U.S.C. § 1983*fn1 against Defendants, the City of Cape May, Police Sergeant William Alvarez, Patrolman Joseph Safaryn, and Andrew K. Boyt, a private citizen, alleging claims for unlawful arrest, false imprisonment and malicious prosecution in violation of the Fourth and Fourteenth Amendments, as well as unspecified state law claims asserted solely against Defendant, Boyt. Defendants, the City of Cape May and Officers Alvarez and Safaryn, have moved for summary judgment on all claims alleged against them, contending that the arrest, imprisonment and prosecution at issue were supported by probable cause, that the doctrine of qualified immunity shields the police officer/defendants from liability, and that Luthe has failed to establish municipal liability under § 1983 against the City of Cape May. Defendant, Boyt, has not moved for summary judgment. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 1343.*fn2

For the reasons set forth below, I shall grant the motion of Officers Alvarez and Safaryn for summary judgment on Plaintiff's claims for unlawful arrest and false imprisonment because I conclude that there is no genuine issue of material fact as to whether Plaintiff's arrest and subsequent imprisonment were supported by probable cause. In addition, I shall grant the police officers' motion for summary judgment on Luthe's claim for malicious prosecution because, although Luthe can maintain her claim for malicious prosecution on the groundless felony charge of burglary when probable cause existed only as to the disorderly persons offenses of harassment and criminal mischief, the police officers are shielded from liability by the doctrine of qualified immunity. Finally, I shall grant the motion of the City of Cape May for summary judgment on Luthe's § 1983 claim because she has failed to demonstrate that her alleged constitutional injury was the result of a custom or policy of the municipality.


On October 29, 1997, Luthe filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, against Defendants, the City of Cape May ("Cape May"), Sergeant William Alvarez of the Cape May Police Department ("Alvarez"), Patrolman Joseph Safaryn of the Cape May Police Department ("Safaryn," collectively, "Officer Defendants"), and Andrew K. Boyt ("Boyt"), a private citizen. See Complaint, ¶¶ 3-6 (filed Oct. 29, 1997) ("Compl."). On October 1, 1998, Defendants, Cape May, Alvarez and Safaryn, moved for summary judgment. See Notice of Motion (filed Oct. 1, 1998). Luthe has asserted the following three causes of action against Cape May and the Officer Defendants: (1) unlawful arrest, Counts I and II; (2) false imprisonment, Counts I and II; and (3) malicious prosecution, Count III. See Complaint, Counts I, II, and III.*fn3

Regarding the events of June 8, 1996, Boyt testified:

  I was sleeping. [Luthe] came in. Sat on the bed. Woke
  me up. I realized what was going on and who it was,
  and at that time I guess she realized that Michelle
  [Teaney] was there with me and she turned on the
  light. I immediately asked her to leave. Told her she
  had to leave. She started getting — you know,
  abusing Michelle verbally, calling her names. . . .
  I'd continuously been telling [Luthe] to leave. . . .
  That's when I got up, threw on a pair of shorts, and
  walked her to the door.

See Def. Brief, Exh. D (Boyt Dep.) at 23. Luthe provided a substantially similar account of the events, stating:

  I sat down on the side of [Boyt's] bed and touched his
  leg, and spoke his name. I heard a sleeping sound that
  did not sound like him, and got up and turned on the
  light. I was surprised to see Michelle in his bed. . . .
  I didn't know what to do. I called him a liar.
  [H]e got up, and came toward me. We both headed toward
  the door arguing.

See P1. Brief, Exh. A.

Boyt escorted Luthe out of his home and onto the front porch. See Boyt Dep. at 27-28. According to Boyt's testimony, once on the front Porch, Luthe grabbed the door jam of the exterior porch door. See id. Boyt "grabbed her hands off the door and pushed her out[,] . . . shut the door" and locked it. Id. at 28-29. Boyt further testified:

  I walked back inside and that's when she began banging
  on the door. I mean she was banging. . . . [T]his was
  banging trying to get in, break-the-door-down
  banging. . . . She was banging on the door and I told
  her that we were calling the police and that she
  better leave and she continued to bang and she broke
  the glass. The glass fell in. She pushed it out of the

Id. at 30-32.

After the glass in the porch door was broken, Scott Nash, Boyt's roommate, who had been sleeping in the living room, called the police. See id.; see also Pl. R. 56.1 at 2. "Shortly thereafter, the police arrived and Officer Safaryn[, who was] the first officer on the scene[,] took a statement from [] Boyt." See Pl. R. 56.1 at 2. Sergeant Alvarez also arrived at the scene and took Boyt's statement. See Def. Brief, Exh. B (Alvarez Dep.) at 14-15.

Previously, on February 20, 1996, Alvarez had answered a call regarding a disturbance at Boyt's home involving Luthe. See Alvarez Dep. at 12; see also Def. Brief, Exh. F (Police Report, dated Feb 20, 1996). Alvarez testified:

  From a prior incident back in February [Luthe's] MO
  was when she knew the police were being called that
  she would leave the scene . . . and go to her house.

See Alvarez Dep. at 12. While Alvarez was responding to the June 8, 1996, call from Boyt's home, Alvarez called Officer Robert Sheehan and sent him to Luthe's home to await her arrival. See id.

In his statement to Safaryn and Alvarez, Boyt indicated that "[w]e need to teach [Luthe] that she can't continue to do this." See Boyt Dep. at 70. Safaryn advised Boyt that he could, obtain a temporary restraining order ("TRO"). See id. at 63. Boyt agreed and went to the police station for this purpose. See id. While at the police station, Boyt filed a Domestic Violence Complaint against Luthe. See Def. Brief, Exh. G (Domestic Violence Complaint, dated June 8, 1996).

While Boyt was at the police station, Officer Sheehan "knocked on [Luthe's] door, and [she] let him in." See Pl. Brief, Exh. A. In responding to Defendants' interrogatories, Luthe testified:

  [Officer Sheehan] asked me if I was at [Boyt's]
  house. I said yes. He said the cops were there and I
  had to come down to the police department. I asked him
  why. He said that [Boyt] was going down there to,
  [sic] and we were going to get this straightened out.

See id. (internal quotations omitted). Luthe accompanied Officer Sheehan to the police station. See id.

Based on Boyt's statement, Safaryn and Alvarez filed a criminal complaint against Luthe. See Def. Brief, Exh. I. Specifically, the Criminal Complaint charged Luthe with violations of: (1) N.J. Stat. Ann. § 2C:18-2(a)(1), burglary; (2) N.J. Stat. Ann. § 2C:33-4(a), harassment; and (3) N.J. Stat. Ann. § 2C:17-3(a)(1), criminal mischief.*fn4 See Def. Brief, Exh. I. In addition to setting forth the charges in the Criminal Complaint, Safaryn and Alvarez also explained the grounds supporting their belief that probable cause existed to arrest Luthe. See id. As to the charge of burglary, Safaryn and Alvarez stated:

  Probable Cause: O[n] June 8, 1996 at 0155 hrs. I was
  dispatched to the Victim's home. Upon arrival the
  victim stated that [Luthe] enter [sic] the house and
  woke him up by sitting and turning on the light.
  [Luthe] then observed his girl friend [sic] in the bed
  and started to get upset. The victim was able to get
  her outside then [Luthe] broke out the storm window on
  the door.

Id. Safaryn and Alvarez repeated these same grounds in support of the basis for probable cause to charge Luthe with harassment and criminal mischief. See id.

Because the Criminal Complaint charged Luthe with burglary, a crime of the third degree, punishable by a minimum term of imprisonment, see note 4 supra, the on-call municipal court judge for the City of Cape May, Judge Way, issued a warrant for Luthe's arrest and set bail in the amount of $3,000.00. See id.; see also Def. R. 56.1, ¶¶ 8-9. Judge Way also granted Boyt's request for a TRO.

Shortly after Safaryn obtained the arrest warrant, Luthe was arrested in the Cape May police station by Officer Sheehan. See Pl. Brief, Exh. A. Safaryn informed Luthe that her bail was set at $3,000.00, and transported her to the Cape May County Correctional Facility ("CMCCF"), where she was processed as a pre-trial detainee. See id. Approximately eight hours later, Luthe was released from the CMCCF after posting bail. See id.

On September 20, 1996, Luthe was tried and acquitted on all charges. See Pl. Brief, Exh. A (Affidavit of Shannon Luthe, dated Nov. 14, 1996). Subsequently, on October 29, 1997, Luthe filed this civil rights action.

In Count I of her Complaint, Luthe alleges that Alvarez and Safaryn "intentionally and recklessly under color of state law deprive[d][her] of her rights to be free from unreasonable searches and seizures, and did otherwise cause [Luthe] to be incarcerated without probable cause or reasonable basis . . . depriving [Luthe] of those rights secured [by] . . . the United States Constitution, [specifically, the Fourth and Fourteenth] Amendments[.]" See id. at 4. Luthe makes the same allegations against all Defendants in Count II. See id., Count II. In Count III, Luthe alleges a cause of action for malicious prosecution against all Defendants for the deprivation of her rights under the Fourth and Fourteenth Amendments. See id., Count III.

On October 1, 1998, Cape May and the Officer Defendants moved for summary judgment contending that: (1) Safaryn and Alvarez had probable cause to arrest, imprison and prosecute Luthe for burglary, harassment and criminal mischief; (2) even if probable cause was lacking, Safaryn and Alvarez are entitled to qualified immunity; and (3) Luthe has failed to state a civil rights claim against the City of Cape May. See Def. Brief at 6-13. Luthe opposes the motion contending that Safaryn and Alvarez did not have probable cause; that their actions were unreasonable, thereby defeating the defense of qualified immunity; and that summary judgment in favor of the City of Cape May is not yet ripe because discovery has not been completed. See Pl. Brief at 5-8.


A party seeking summary judgment must "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, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Reitz v. County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir. 1986). In deciding whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See, e.g., Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987).

Under the rule, a movant must be awarded summary judgment on all properly supported issues identified in its motion, except those for which the non-moving party has provided evidence to show that a question of material fact remains. Once the moving party has properly supported its showing of no triable issue of fact and of an entitlement to judgment as a matter of law, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion . . .; the requirement is that there be no genuine issue of material fact.") (emphasis in original);

What the non-moving party must do is "go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also Lujan v. National Wildlife Fed., 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint . . . with conclusory allegations of an affidavit."); Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) ("[T]o raise a genuine issue of material fact . . . the [non-moving party] need not match, item for item, each piece of evidence proffered by the movant," but rather must exceed the "`mere scintilla' threshold."), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)).

Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed.R.Civ.P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be evaluated on its merits, with summary judgment being granted for the movant only if they are entitled to a judgment as a matter of law. See Anchorage Assocs., 922 F.2d at 175.

  A.  Probable Cause on Counts I and II: Unlawful Arrest and False

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