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Lemons v. Atlantic City Police Dept.

January 20, 2009

IAN D. LEMONS, PLAINTIFF,
v.
ATLANTIC CITY POLICE DEPT., DET. JOSEPH M. RAUCH, SGT. JAMES HERBERTO, DEFENDANTS.



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

[Docket No. 51]

OPINION

INTRODUCTION

This matter comes before the Court upon a renewed motion for summary judgment filed by the only remaining Defendants, two Atlantic City police officers - Detective Joseph M. Rauch and Sergeant James Herberto. For the reasons discussed below, Defendants' motion is granted.

FACTS AND PROCEDURAL HISTORY

As the parties are familiar with the facts, the Court will recite them only briefly. On November 23, 2004, Plaintiff, Ian D. Lemons, was arrested in Atlantic City for robbing and assaulting an individual at gunpoint three months prior. He was subsequently tried by a jury and convicted of armed robbery and aggravated assault and sentenced to 20 years imprisonment for his crimes. He is now a prisoner at New Jersey State Prison.

On July 27, 2006, Plaintiff filed a federal civil complaint claiming that he was arrested without probable cause and without a proper arrest warrant in violation of his constitutional rights. Specifically, Plaintiff claims that Detective Rauch signed a criminal complaint without firsthand knowledge of the incident alleged and also failed to appear before a judicial officer to swear to the complaint. Plaintiff further alleges that Sergeant Herberto issued a defective and, thus, illegal arrest warrant which lead to Plaintiff's false arrest and false imprisonment from November 23, 2004 until June 29, 2005 (when Plaintiff was convicted).

Defendants filed a motion for summary judgment on June 10, 2008. [Dkt. No. 47]. Plaintiff did not file any opposition. On August 6, 2008, the Court granted summary judgment as to Plaintiff's claim against the Atlantic City Police Department concerning inadequate supervision and training of police officers but denied summary judgment as to Plaintiff's claims against the individual officers, Detective Rauch and Sergeant Herberto. [See Dkt. No. 49]. However, as explained in the Opinion, the Court allotted Defendants two weeks to file a renewed motion for summary judgment as to the individual officers. Defendants filed such motion on August 20, 2008. [Dkt. No. 51]. Plaintiff filed an opposition*fn1 on September 23, 2008, three weeks late; however, as Plaintiff is pro se, the Court will still consider such opposition. Defendants filed a reply on October 9, 2009 [Dkt. No. 54] and Plaintiff filed what appears to be a sur-reply on October 24, 2009 [Dkt. No. 56]. Despite Plaintiff's failure to seek permission of the Court to file a sur-reply, again, in light of the fact that Plaintiff is pro se, the Court will still consider Plaintiff's submission.

STANDARD OF REVIEW

Summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir. 1986). 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 (1986). "In making this determination, a court must make all reasonable inferences in favor of the non-movant." Oscar Mayer Corp. v. Mincing Trading Corp., 744 F. Supp. 79, 81 (D. N.J. 1990) (citing Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983)). However, "when opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must 'identify those facts of record which would contradict the facts identified by the movant.'" Corliss v. Varner, 247 Fed. Appx. 353, 354 (3d Cir. 2007) (quoting Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003)); Fed. R. Civ. P. 56(e). "At the summary judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

DISCUSSION

Plaintiff alleges that Detective Rauch and Sergeant Herberto violated his constitutional rights under the Fourth Amendment by arresting him without a proper warrant. In his opposition, Plaintiff claims that the four arrest warrants issued were defective for six reasons: (1) the arrest warrants are fraudulent as Defendants "doctered-up" CDR1 forms, which are used for summons, to look like CDR2 forms, which are required for arrest warrants; (2) the oath for the complainant was improperly administered by Sergeant Herberto instead of a "Jurist"; (3) the warrants were illegally issued by Sergeant Herberto; (4) Detective Rauch inappropriately based his filing of the criminal complaint on hearsay; (5) ...


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