United States District Court, D. New Jersey
September 12, 2005.
BERNARD WARNER, Plaintiff,
LT. RICHARD SWEENEY, et al., Defendants.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Plaintiff, Bernard Warner ("Warner"), currently confined at the
Burlington County Detention Center in Mount Holly, New Jersey,
seeks to bring this action in forma pauperis pursuant to
28 U.S.C. § 1915. Based on his affidavit of indigence and
accompanying account statement, the Court grants Warner's
application to proceed in forma pauperis and directs the
Clerk of the Court to file the complaint without pre-payment of
the filing fee. See 28 U.S.C. § 1915(a), (b).
Having reviewed the complaint to identify cognizable claims as
required under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court
concludes that the Complaint should proceed in part. I. BACKGROUND
Warner brings this civil rights action, pursuant to
42 U.S.C. § 1983, against the following defendants: Lt. Richard Sweeney of
the Burlington Township Police Department ("BTPD"); Detective
Stephen Craig of the Burlington County Prosecutor's Office;
Detective Deanna Kuzob of the BTPD; Patrol Officer Charles J.
Zelaukas of the BTPD; and Liesel Cunningham, the alleged victim.
(Complaint, Caption, ¶ 4). The following factual allegations are
taken from the Complaint and are accepted as true for purposes of
On February 25, 2005, an elderly white female, defendant
Cunningham, was attacked in her home. Defendant, Lt. Sweeney,
apprehended plaintiff several blocks from the crime scene. Warner
alleges that Lt. Sweeney lied about probable cause to arrest him
and that defendant also illegally seized plaintiff's wallet and
jeans from the unlocked garage of plaintiff's girlfriend. Warner
further alleges that Lt. Sweeney lied about finding the wallet on
Warner and that Sweeney tainted plaintiff's jeans with the
victim's blood. (Compl., ¶¶ 4, 6).
Warner next claims that defendants, Det. Craig and Det. Kuzob,
ignored plaintiff's requests for an attorney, to make a phone
call, and to use the bathroom. Warner contends that the
defendants ignored these requests to force plaintiff to make a
confession. He also states that Det. Kuzob maced plaintiff, and then denied plaintiff's request to use the bathroom to wash his
eyes. (Compl., ¶¶ 4, 6).
Warner further alleges that defendant, Patrolman Zelaukas, was
in charge of the crime scene log and observed Lt. Sweeney plant
tainted evidence without stopping him. Plaintiff contends that
Zelaukas let others into the crime scene unit, which served to
compromise the integrity of the evidence. (Compl., ¶¶ 4, 6).
Finally, plaintiff asserts that the victim, Ms. Cunningham lied
about plaintiff's involvement in the attack, and made slanderous
statements about plaintiff. (Compl., ¶¶ 4, 6).
Warner seeks monetary damages from these defendants for their
public humiliation of him, and for wrongful imprisonment. He also
seeks to have it noted on record that he is innocent of all
charges. (Compl., ¶ 7).
II. STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 1041-34,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or
seeks redress against a governmental employee or entity. The
Court is required to identify cognizable claims and to sua
sponte dismiss any claim that is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.*fn1
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court
must "accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff." Morse v.
Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The
Court need not, however, credit a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
A complaint is frivolous if it "lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989) (interpreting the predecessor of § 1915(e)(2), the former
§ 1915(d)). The standard for evaluating whether a complaint is
"frivolous" is an objective one. Deutsch v. United States,
67 F.3d 1080, 1086-87 (3d Cir. 1995). A pro se complaint may be dismissed for failure to state a
claim only if it appears "`beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981). However, where a complaint can be
remedied by an amendment, a district court may not dismiss the
complaint with prejudice, but must permit the amendment. Denton
v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker,
363 F.3d 229 (3d Cir. 2004) (complaint that satisfied notice pleading
requirement that it contain short, plain statement of the claim
but lacked sufficient detail to function as a guide to discovery
was not required to be dismissed for failure to state a claim;
district court should permit a curative amendment before
dismissing a complaint, unless an amendment would be futile or
inequitable); Grayson v. Mayview State Hospital, 293 F.3d 103,
108 (3d Cir. 2002) (dismissal pursuant to
28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.
2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia
v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir.
1996). III. SECTION 1983 ACTIONS
Warner brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights guaranteed under the United States
Constitution. Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. . . .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law. West v. Atkins, 487 U.S. 42
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250
, 1255-56 (3d
With respect to defendant, Liesel Cunningham, a private
citizen, there are no allegations that she was acting under color
of state law. She merely was the victim of the crime for which
plaintiff was arrested, and she reported that plaintiff was the
culprit upon questioning by the police. Therefore, the Court
finds that defendant Cunningham is not a state actor and the
Complaint will be dismissed in its entirety as against her for failure to state a claim upon which relief may be granted,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
As to the remaining police and prosecutor defendants, the Court
liberally construes the Complaint to allege the following claims:
(1) false arrest and imprisonment; (2) filing a false police
report; (3) excessive force in violation of the Fourth Amendment;
and (4) contamination and tainting of evidence.
A. False Arrest Claim
The Fourth Amendment to the United States Constitution provides
that "The right of the people to be secure in their persons . . .
against unreasonable searches and seizures, shall not be
violated." A seizure triggering Fourth Amendment protection
occurs when a government actor "by means of physical force or
show of authority, has in some way restrained the liberty of a
citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). To
determine the reasonableness of a seizure, a court "must balance
the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United
States v. Place, 462 U.S. 696, 703 (1983), quoted in
Tennessee v. Garner, 471 U.S. 1, 8 (1985) and Graham v.
Connor, 490 U.S. 386, 396 (1989).
It is well established in the Third Circuit that an arrest
without probable cause is a constitutional violation actionable
under § 1983. See Walmsley v. Philadelphia, 872 F.2d 546 (3d
Cir. 1989) (citing cases); see also, Albright v. Oliver,
510 U.S. 266, 274 (1994) (a section 1983 claim for false arrest
may be based upon an individual's Fourth Amendment right to be
free from unreasonable seizures). Under New Jersey law, false
arrest has been defined as "the constraint of the person without
legal justification." Ramirez v. United States,
998 F. Supp. 425, 434 (D.N.J. 1998) (quoting Fleming v. United Postal
Service, Inc., 604 A.2d 657, 680 (N.J. Law Div. 1992)).
To state a claim for false arrest, a plaintiff must allege two
elements: (1) that there was an arrest; and (2) that the arrest
was made without probable cause. Dowling v. City of
Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). To establish the
absence of probable cause, a plaintiff must show "that at the
time when the defendant put the proceedings in motion the
circumstances were such as not to warrant an ordinary prudent
individual in believing that an offense had been committed."
Lind v. Schmid, 67 N.J. 255, 262 (1975). "Probable cause . . . requires more than mere suspicion; however, it does not require
that the officer have evidence to prove guilt beyond a reasonable
doubt." Orsatti v. New Jersey State Police, 71 F.3d 480, 482-83
(3d Cir. 1995). Rather, probable cause exists when the facts and
circumstances are "sufficient to warrant a prudent man in
believing that the defendant had committed or was committing an
offense." Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting
Beck v. State of Ohio, 379 U.S. 89, 91 (1964)); Sharrar v.
Felsing, 128 F.3d 810, 817 (3d Cir. 1997).
Moreover "where the police lack probable cause to make an
arrest, the arrestee has a claim under § 1983 for false
imprisonment based on a detention pursuant to that arrest."
Groman v. Manalapan, 47 F.3d 628, 636 (3d Cir. 1995); Palma v.
Atlantic County, 53 F. Supp. 2d 743, 755 (D.N.J. 1999) (citing
Groman). See also Anela v. City of Wildwood,
595 F. Supp. 511, 512 (D.N.J. 1984) (holding a person for any length of time
without legal justification may be a violation of the right to
liberty under the Fourteenth Amendment and thus states a claim of
false imprisonment under § 1983).*fn3 A § 1983 claim for
false arrest typically accrues on the date of the plaintiff's
arrest. See Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998);
Rose v. Bartle, 871 F.2d 331, 348-51 (3d Cir. 1989).*fn4
A defense to both an unlawful arrest and false imprisonment
claim is that the police officer defendants acted with probable
cause. Sharrar v. Felsing, 128 F.3d 810, 817-18 (3d Cir. 1997)
(a key element of a § 1983 unlawful arrest claim is that the
police officer arrested the plaintiff without probable cause);
Groman, 47 F.3d at 636 ("an arrest based on probable cause
could not become the source of a [§ 1983] claim for false
imprisonment"). To establish the absence of probable cause, a
plaintiff must show "that at the time when the defendant put the
proceedings in motion the circumstances were such as not to
warrant an ordinary prudent individual in believing that an
offense had been committed." Lind v. Schmid, 67 N.J. 255, 262
(1975). "Probable cause . . . requires more than mere suspicion;
however, it does not require that the officer have evidence to
prove guilt beyond a reasonable doubt." Orsatti v. New Jersey
State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Rather,
probable cause exists when the facts and circumstances are
"sufficient to warrant a prudent man in believing that the
defendant had committed or was committing an offense." Gerstein
v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. State of Ohio, 379 U.S. 89, 91
(1964)); Sharrar, 128 F.3d at 817.*fn5
Here, Warner admits that he was arrested by defendants several
blocks from the scene of the crime after the police saw a man
fleeing from the scene. The victim identified Warner as her
attacker. Warner appears to misconstrue the victim's statement to
the police that she "did not know her attacker" to mean that she
was unable to positively identify Warner as the culprit. Warner
also submitted a newspaper article which stated that the police
found him with blood on his pants. (Docket Entry No. 2). Thus,
under these facts, probable cause for the arrest is demonstrated
and Warner's claims for false arrest and imprisonment must be
dismissed for failure to state a claim.
B. False Police Report and Tainted Evidence Claims
Warner also asserts a claim that the police and prosecutor
defendants filed false police reports, lied about the evidence,
and were responsible for contaminating and tainting the evidence.
These claims of police and prosecutorial misconduct, which Warner
asserts as a challenge to the state criminal charges against him,
must be raised in Warner's pending criminal proceedings in state court;*fn6 a federal court generally will not intercede to
consider issues that Warner has an opportunity to raise before
the state court. Younger v. Harris, 401 U.S. 37 (1971).
The United States Court of Appeals for the Third Circuit has
enunciated three requirements that must be met before Younger
abstention may be invoked:
(1) there are ongoing state proceedings that are
judicial in nature; (2) the state proceedings
implicate important state interests; and (3) the
state proceedings afford an adequate opportunity to
raise federal claims. Whenever all three of these
requirements are satisfied, abstention is appropriate
absent a showing of bad faith prosecution,
harassment, or a patently unconstitutional rule that
will cause irreparable injury to the plaintiff.
Port Auth. Police Benevolent Ass'n v. Port Auth. of New York and
New Jersey Police Dep't, 973 F.2d 169
, 173 (3d Cir. 1992)
(citing Schall v. Joyce, 885 F.2d 101
, 106 (3d Cir. 1989)).
Here, Warner is admittedly a pre-trial detainee awaiting trial;
thus state proceedings implicating important state interests are
ongoing and Warner has the opportunity to raise his claims in
that proceeding. Therefore, this Court is constrained by
Younger to dismiss Warner's claims against the police and
prosecutor defendants for their alleged misconduct in arresting
and prosecuting plaintiff. Warner also has no claim for damages at this time with respect
to his claims of police and prosecutorial misconduct unless and
until the criminal proceedings are resolved in his favor or the
conviction against him is invalidated. See Heck v. Humphrey,
512 U.S. 477, 486 (1994). Further, if Warner is eventually
convicted of the alleged charges in his now-pending state
criminal trial, he must first exhaust his state court remedies by
direct appeal or other available state court review, and then, if
appropriate, file a federal habeas application to assert any
violations of federal constitutional or statutory law, namely,
his claims of police and prosecutorial misconduct. Preiser v.
Rodriguez, 411 U.S. 475
Therefore, for all of the foregoing reasons, the Court will
dismiss the police and prosecutorial misconduct claims, without
prejudice, for failure to state a claim upon which relief may be
granted at this time.
C. Excessive Force Claim
Claims of excessive force during arrests, investigatory stops
and other seizures are governed by the Fourth Amendment. See
Graham v. Conner, 490 U.S. 386 (1989). "To state a claim for
excessive force as an unreasonable seizure under the
Fourth Amendment, a plaintiff must show that a `seizure' occurred and
that it was unreasonable." Abraham v. Raso, 183 F.3d 279, 288
(3d Cir. 1999). See also Graham v. Connor,
490 U.S. at 396-97 (force used to effect an arrest must be reasonable, and
reasonableness is measured by "careful attention to the facts and
circumstances of each particular case . . .").
In the instant case, Warner alleges that defendant Det. Kuzob
used excessive force by spraying his face with mace and denying
plaintiff the use of the bathroom to wash his face. Warner does
not allege that he was attempting to run, threaten the detective
with harm, or was in any way resisting arrest. In fact, it
appears that the mace was sprayed while plaintiff was being held
for interrogation. Thus, these allegations, if true, are
sufficient to withstand dismissal at this time because it appears
that defendant Kuzob may have intentionally harmed plaintiff
without apparent provocation for the very purpose of causing
harm. The excessive force claim against Det. Kuzob should proceed
past the sua sponte screening stage.
For the reasons stated above, the Court will dismiss with
prejudice Warner's false arrest and imprisonment claim, as
against all defendants, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim.
Likewise, the Complaint will be dismissed with prejudice, in its
entirety, as against defendant Liesel Cunningham, because she is
not a state actor subject to § 1983 liability. Warner's claims of
police and prosecutorial misconduct will be dismissed without prejudice for failure to state a claim at this time. However, the
Court will allow plaintiff's excessive force claim to proceed
against defendant Kuzob. Finally, the Court will deny Warner's
motion to suppress evidence, (Docket Entry No. 2), because such
relief is more appropriately raised in Warner's ongoing criminal
proceedings. An Order consistent with this Opinion follows.
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