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August 24, 2005.


The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District


This matter comes before the Court on Defendants' motion for summary judgment.


  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).

  II. Analysis

  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, 362-63 (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, 37 (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. 1989)).

  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. ...

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