United States District Court, D. New Jersey
August 24, 2005.
WILLIE PATERSON, Plaintiff,
NEWARK POLICE DEPARTMENT, MANUEL J. GARCIA, EILEEN F. COSGROVE, LT. DEFRANCEE (first name unknown), and NICOLE S. BERRIAN, Defendants.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on Defendants' motion for
FACTS AND BACKGROUND
This opinion will rely on the facts and background presented in
this Court's June 21, 2004 Opinion. See Peterson v. Newark
Police Department et al., 04-2332 (JWB) (Opinion). Additional
facts presented here will be appropriately cited.
Plaintiff Willie Peterson ("Plaintiff" or "Mr. Peterson")
brought this action on May 12, 2004. On June 21, 2004, this Court
held that it would allow Plaintiff's malicious prosecution claim
to proceed. See id. This Court dismissed with prejudice all
remaining claims brought by the Plaintiff for failure to state a
claim, as they were time-barred. Thereafter, on June 7, 2005,
Defendants Manuel J. Garcia ("Garcia") and the City of Newark
("Newark") filed a motion for summary judgment pursuant to
Fed.R.Civ.P. 56. The next day, Defendants Eileeen Cosgrove
("Cosgrove"), Nicole Berrian ("Berrian") and Patrick Defrancisci
("Defrancisci") brought a separate motion for summary judgment pursuant to Fed.R.Civ.P. 56. On July 19, 2005, Mr. Peterson
opposed these motions for summary judgment and also made a motion
for the appointment of pro bono counsel.
I. Standard for Summary Judgment Motion pursuant to Rule 56
Fed.R.Civ.P. 56(c) provides that summary judgment should be
granted "if pleadings, depositions, answers to 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 a judgment as a matter of
law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. Southern
Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a
motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party.
See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d
Cir. 1998). The moving party bears the burden of establishing
that no genuine issue of material fact remains. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The Supreme Court has stated that in evaluating a defendant's
motion for summary judgment:
[t]he judge must ask . . . not whether . . . the
evidence unmistakably favors one side or the other
but whether a fair-minded jury could return a verdict
for the plaintiff on the evidence presented. The mere
existence of a scintilla of evidence in support of
the plaintiff's position will be insufficient; there must
be evidence on which the jury could reasonably find
for the plaintiff. The judge's inquiry, therefore,
unavoidably asks whether reasonable jurors could find
by a preponderance of evidence that the plaintiff is
entitled to a verdict. . . .
Anderson, 477 U.S. at 252. A fact is "material" only if it will
affect the outcome of a lawsuit under the applicable law, and a
dispute over a material fact is "genuine" if the evidence is such
that a reasonable fact finder could return a verdict for the
nonmoving party. See id.
Only evidence that would be admissible at trial may be used to
test a summary judgment motion; evidence with a deficient
foundation must be excluded from consideration. See Blackburn
v. United Parcel Service, Inc., 1999 WL 360546 (3d Cir. 1999).
In order to survive a motion for summary judgment, the non-moving
party must present more than a mere scintilla of evidence in his
favor. Id. The non-moving party "cannot simply reallege
factually unsupported allegations contained in his pleadings."
Anderson, 477 U.S. at 249; see also Clark v. Clabaugh,
20 F.3d 1290, 1294 (3d Cir. 1994).
Mr. Peterson's malicious prosecution claim arises from his
arrest for receipt of stolen property in violation of N.J.S.C. 2C:20-7(a).*fn1 The Defendants' motions for summary judgment
are based on the contention that Mr. Peterson's claim for
malicious prosecution must fail because the facts do not support
a prima facie claim of malicious prosecution under
42 U.S.C. § 1983 ("§ 1983"). This Court agrees with the Defendants.
To establish a claim of malicious prosecution under § 1983, a
plaintiff must show that:
(1) the defendant initiated a criminal proceeding;
(2) the criminal proceeding ended in plaintiff's
favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously
or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered deprivation
of liberty consistent with the concept of seizure as
a consequence of a legal proceeding.
Camiolo v. State Farm Fire and Cas. Co., 334 F.3d 345
(3d Cir. 2003) (citing Estate of Smith v. Marasco,
318 F.3d 497
, 521 (3d Cir. 2003)). According to the Third Circuit,
probable cause means "facts and circumstances . . . that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense." Id. (citing Michigan v. DeFillippo, 443 U.S. 31
(1979)). Furthermore, "a grand jury indictment or presentment
constitutes prima facie evidence of probable cause to prosecute, but that this prima
facie evidence may be rebutted by evidence that the presentment
was procured by fraud, perjury or other corrupt means." Id.
(referring to Rose v. Bartle, 871 F.2d 331
, 353 (3d Cir.
In this case, Plaintiff has failed to establish the elements
necessary to prove a § 1983 malicious prosecution claim. First,
Defendants Newark and Garcia were not involved in Mr. Peterson's
arrest or prosecution for the receipt of stolen property
violation.*fn2 To the contrary, it was the Village of South
Orange that issued the warrant for Mr. Peterson's arrest for the
stolen property violation. See Def. Newark & Garcia Br. at 10.
Furthermore, the same holds true with regard to Defendants
Berrian and Defrancisci. Neither Berrian nor Defrancisci
"participated in the investigation of the plaintiff for receipt
of stolen property." See Def. Cosgrove, Berrian & Defrancisci
Br. at 12. Berrian and Defrancisci were not involved in
"procuring the arrest warrant issued by the South Orange Police
Department in connection with [the receipt of stolen property]
charge, or ? in any way participated in the plaintiff's
indictment by an Essex County grand jury in connection with this
charge." Id. Based on the foregoing, this Court finds that Mr.
Peterson cannot make out a prima facie case of malicious prosecution under § 1983 because he cannot prove the first
element: that Defendants Newark, Garcia, Berrian and Defrancisci
initiated the criminal proceeding for the receipt of stolen
Mr. Peterson's malicious prosecution claim must also fail as to
Defendant Cosgrove. In this case, Cosgrove was acting within the
scope of her employment as a prosecutor and she therefore is
entitled to immunity from a civil suit under § 1983. See
Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that "in
initiating a prosecution and in presenting the State's case, the
prosecutor is immune from a civil suit for damages under §
1983"). It should also be noted that Defendant Cosgrove did not
initiate the criminal proceeding for the receipt of stolen
property charge. Hence, Mr. Peterson's malicious prosecution
claim must fail as to Defendant Cosgrove for two different
reasons: (1) Cosgrove is entitled to immunity from suit under §
1983, and (2) Mr. Peterson cannot prove the necessary first
element of a malicious prosecution claim as to Cosgrove. For
these reasons, Mr. Peterson's malicious prosecution claim must
The Court notes that while Mr. Peterson may attempt to amend
his Complaint to include other defendants, this attempt would be
futile. Mr. Peterson could not make out a malicious prosecution
claim against the South Orange Police Department and others involved in his arrest and subsequent criminal proceedings for
the receipt of stolen property charge. The Essex County grand
jury returned an indictment on that charge. As stated previously,
"a grand jury indictment or presentment constitutes prima facie
evidence of probable cause to prosecute." Camiolo,
334 F.3d at 63. In this case, the grand jury indictment constitutes such
prima facie evidence of probable cause and Mr. Peterson has not
provided any evidence that would rebut that presumption. For that
reason, any malicious prosecution claims brought by Mr. Peterson
with regard to the receipt of stolen property charge must fail.
Therefore, this Court will grant Defendants' motions for summary
judgment with prejudice.
Moreover, with the granting of Defendants' summary judgment
motion on grounds that are unassailable, Mr. Peterson's claims
have been conclusively adjudicated against him. Therefore,
appointment of pro bono counsel is not warranted. CONCLUSION
For the foregoing reasons, the Defendants' motions for summary
judgment as to the malicious prosecution claim are GRANTED with
prejudice and Mr. Peterson's application for pro bono counsel is
DENIED. This action is now dismissed in its entirety.