                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2008

Mierzwa v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3362




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                                                         NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                               No. 07-3362
                               ___________

            EDWARD J. MIERZWA; PATRICIA A. MIERZWA,
                                         Appellants

                                     v.

UNITED STATES OF AMERICA; STATE OF NEW JERSEY; CITY OF FAIR LAWN;
   CITY OF GARFIELD; CITY OF PEQUANNOCK; ANTHONY BLACKFELD;
    SAULIUS SHIKHMAN; TRACI SHIKHMAN; RICHARD URAM; ROBERT
SHIKHMAN; NORTH JERSEY MEDIA GROUP; ARKADIUSZ M. DUDEK; CHRIS
 GAFFNEY; DIANE GAFFNEY; JOHN P. KEATING; JOSEPH G. MARSH; ROSE
      ANNE MERENDINO; JEFFREY R. STEWART; JAMES B. ZANGARA
                ____________________________________

               On Appeal from the United States District Court
                         for the District of New Jersey
                         (D.C. Civil No. 04-cv-05268)
                District Judge: Honorable Faith S. Hochberg
                ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               June 25, 2008

      Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                         Opinion filed June 26, 2008
                                _________

                                  OPINION
                                 _________
PER CURIAM

       This action was brought by pro se litigants Edward and Patricia Mierzwa (the

“Mierzwas”), pursuant to 42 U.S.C. § 1983, against multiple defendants for violations of

their civil rights under the Fourteenth Amendment and under state tort law. They now

appeal from three District Court orders disposing of their claims. The first order

dismissed the Mierzwas’ claims with prejudice against Defendants Chris and Diane

Gaffney, North Jersey Media Group (“NJMG”), and various City of Garfield employees1

for alleged violations of their constitutional rights under the Fourteenth Amendment; the

second denied the Mierzwas’ motion for reconsideration of the first order, and the third

granted summary judgment in favor of Garfield police Officers Joseph Marsh, Jeffrey

Stewart and John Keating. The Mierzwas also object to the District Court’s dismissal or

termination of various other parties from the lawsuit. Finding no error, we will affirm.

                                             I.

       The Mierzwas’ § 1983 lawsuit arose out of a series of events that began on

October 8, 2005, when Mr. Mierzwa attempted to back his car out of his driveway and

became wedged between his neighbors’ vehicles which were parked on either side of his

driveway. Mr. Mierzwa called the Garfield Police Department for assistance and the




   1
    The Mierzwas claim constitutional violations by Garfield Municipal Court
Administrator Rose Ann Merendino, the City of Garfield, the Garfield Police Department,
and Garfield Police Officers Anthony Blackfeld, Arkadiusz M. Dudek, John P. Keating,
Joseph G. Marsh, Jeffrey R. Stewart, and James Zangara.

                                             2
officers who responded to the call successfully freed his car. According to the Mierzwas’

complaint, Officer Dudek advised Mr. Mierzwa prior to leaving the scene that, in the

event of a repeat episode, Mr. Mierzwa would be “arrested for blocking the public

roadway.”

       Two days later, on October 10, 2005, Mr. Mierzwa again called the Garfield Police

Department, complaining that he was unable to exit his driveway because vehicles were

blocking his exit. According to the police report, when the officers arrived, Mr. Mierzwa

approached them, shouting obscenities. Defendants Officers Marsh and Keating both

instructed Mr. Mierzwa to step to the curb, lower his voice and calm down. When he

continued to shout and refused to comply with their directions, Defendant Marsh advised

Mr. Mierzwa that he was under arrest for tumultuous behavior. Defendants attempted to

administer handcuffs; however, Mr. Mierzwa refused to comply, instead flailing his arms

in an attempt to break free and enter his home. Defendants allegedly used force to tackle

Mr. Mierzwa to the ground and Defendant Marsh applied arm locks to restrain him.

When restraint was unsuccessful, Defendants used pepper spray to subdue Mr. Mierzwa

and effectuate the arrest.

       Defendants then transported Mr. Mierzwa to Garfield Township Police

Headquarters, where he was treated by EMS personnel for the effects of the pepper spray.

Mr. Mierzwa was then taken to Bergen Regional Medical Center for psychiatric

evaluation and treatment. The following day, Mr. Mierzwa was treated at Mountainside



                                            3
Hospital for a sprained knee and discharged.

       Thereafter, the Mierzwas commenced a civil rights lawsuit against multiple

parties, including Diane and Chris Gaffney, whose cars had allegedly blocked the

Mierzwas’ driveway, because of the “unreasonable and excessive force” used during the

arrest of Mr. Mierzwa. Based on an article written about the incident published in the

Shopper News on October 19, 2005, the Mierzwas also allege that the NJMG defamed

Mr. Mierzwa.

       The Complaint also contains claims arising out of a February 2004 lawsuit filed by

the Mierzwas against many of the same Defendants.2 Following Mr. Mierzwa’s attempt

to serve that complaint on Defendants Saulius and Traci Shikhman at their home, the

Mierzwas alleged that the Shikhmans “initiated chaotic police activity,” filed a frivolous

police report against Mr. Mierzwa and filed a bad faith notice in lieu of complaint for

trespassing. This, and other activities, were allegedly initiated in conjunction with

Defendants City of Garfield, City of Fair Lawn, and the City of Pequannock. Officer

Richard Uram allegedly committed acts of “gross negligence” and disrupted the

Mierzwas’ “quiet enjoyment” on February 19, 2004, after he responded to the Shikhmans’

complaint. The Mierzwas’ Complaint also contains a common law loss of consortium

claim on behalf of Patricia Mierzwa. Finally, the complaint alleges misconduct by the


   2
    The Mierzwas’ February 2004 lawsuit was dismissed in July 2004. See Edward
Mierzwa, et al. v. City of Garfield, et al., Docket No. 2:04-cv-721. This Court affirmed
the District Court’s judgment on October 19, 2005. See Mierzwa v. City of Garfield, 170
Fed. App’x. 212 (3d Cir. 2005).

                                               4
District Court and the Third Circuit Court of Appeals in connection with the disposition

of their prior Complaint.

       By order dated September 1, 2005, the District Court dismissed the Mierzwas’

claims against the United States for lack of jurisdiction. The Court dismissed the

Mierzwas’ claims against the State of New Jersey based on Eleventh Amendment

immunity and because New Jersey is not a “person” as defined by 42 U.S.C. § 1983 and

therefore not amenable to suit under the statute.

       By order dated August 9, 2006, the District Court dismissed the complaint with

prejudice against Defendants Chris and Diane Gaffney, NJMG, Rose Ann Merendino,

Officers Dudek, Blackfeld and Zangara, the City of Garfield, and the Garfield Police

Department. The Court declined to exercise supplemental jurisdiction over the

Mierzwas’ remaining state law claims, including loss of consortium. On September 11,

2006, the Court denied the Mierzwas’ motion to reconsider the August 9th Opinion and

on January 11, 2006, the District Court terminated Defendants Robert Shikhman, Saulius

Shikhman, Traci Shikhman, and Richard Uram, apparently for lack of subject matter

jurisdiction. The Mierzwas’ claims against Defendants Officers Marsh, Stewart and

Keating were allowed to proceed.

       On July 26, 2007, following completion of discovery, the District Court issued an

order granting Defendants Marsh, Stewart and Keating’s motion for summary judgment

on the ground that Defendants were entitled to qualified immunity. The Court determined



                                             5
there was no issue of material fact as to whether a reasonable officer would believe Mr.

Mierzwa’s actions posed a threat to the safety of the Defendants. The Court also

concluded there was no genuine issue of material fact as to whether Plaintiff resisted

arrest and that no reasonable police officer would believe that the arresting officers used

excessive force under the circumstances.

                                             II.

A.     Dismissal of The State of New Jersey and the United States

       To the extent that the Mierzwas complain in their informal brief that “[p]arties

were terminated from the action without a signed order,” we will review whether the

District Court properly dismissed the Mierzwas’ claims against the State of New Jersey

and the United States. See Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139 (3d Cir.

1998) (an appeal from a final judgment will implicate all non-final orders and rulings

which produced the judgment).

       The District Court was correct in ruling that the Mierzwas’ § 1983 claims against

the State of New Jersey are barred by Eleventh Amendment immunity. The State of New

Jersey has not waived its sovereign immunity with respect to § 1983 claims in federal

court. See Ritchie v. Cahall, 386 F. Supp. 1207, 1209-10 (D.N.J. 1974) (holding that

State of New Jersey did not waive its sovereign immunity for purposes of lawsuits filed in

federal court when it enacted the Tort Claims Act).

       Moreover, the State was properly dismissed from the Mierzwas’ suit because New



                                             6
Jersey is not recognized as a “person” under § 1983. See 42 U.S.C. § 1983 (“Every

person who . . . causes to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges or immunities secured by the Constitution and laws,

shall be liable to the party injured . . . .”) (emphasis added); see also Will v. Mich. Dep’t

of State Police, 491 U.S. 58 (1989) (holding that states and state officials, acting in their

official capacity, are not “persons” under § 1983); United States ex rel. Foreman v. State

of N.J., 449 F.2d 1298 (3d Cir. 1971) (holding that State of New Jersey is not a “person”

under § 1983 and thus not amendable to suit under that statute).

       The United States is likewise an improper party because sovereign immunity has

not been waived in a case such as this one where the Mierzwas seek damages for

decisions of the District Court in prior actions. To the extent that the Mierzwas’ claim

can be construed as a claim under Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971), it cannot be maintained because a plaintiff may not use Bivens to pursue

constitutional claims against the United States or its agencies. See Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 72 (2001). The doctrine of sovereign immunity bars all suits

against the United States except where such immunity is explicitly waived by Congress.

United States v. Mitchell, 445 U.S. 535, 538 (1980). Neither the United States nor its

agencies have waived sovereign immunity for constitutional claims. See United States v.

Testan, 424 U.S. 392, 400-02 (1976); see also F.D.I.C. v. Meyer, 510 U.S. 471, 486

(1994) (declining to recognize a direct action for damages against federal agencies).



                                               7
       The Mierzwas’ attempt to hold the United States liable for the actions of its judges

must also be rejected. Judges enjoy absolute immunity for the judicial actions taken in

the course of judicial proceedings. Dennis v. Sparks, 449 U.S. 24, 27 (1980). All the

conduct complained of by the Mierzwas involves actions within the jurisdictional purview

of the Court and such actions are protected by absolute immunity. See Cleavinger v.

Saxner, 474 U.S. 193, 199-200 (1985).

B.     Dismissal of the City of Garfield, et al., Chris and Diane Gaffney, and North
       Jersey Media Group

       The Mierzwas claim constitutional violations for the following actions: 1) Court

Administrator Rose Ann Merendino’s refusal to dismiss the Gaffneys’ Complaint filed

against the Mierzwas; 2) Officer Blackfeld’s visit to the Mierzwas’ residence on February

19, 2004; 3) Officer Dudek’s interaction with Mr. Mierzwa on October 8, 2005, after

helping Mr. Mierzwa unblock his car from the roadway; 4) Officer Zangara’s alleged

statement to Mr. Mierzwa that a no-parking zone would be created in front of the

Mierzwas’ residence; and 5) the Garfield Police Department’s alleged willful obstruction

of the Mierzwas’ access to the incident report regarding events of October 8, 2005. For

substantially the reasons explained by the District Court in its August 9, 2006 Order, we

agree that the Mierzwas have failed to establish a constitutional violation by City of

Garfield employees Merendino, Dudek, Blackfeld, Zangara, the City of Garfield itself or

the Garfield Police Department. Accordingly, dismissal of those Defendants was proper.

       The Mierzwas have likewise failed to set forth a viable claim against Chris and


                                             8
Diane Gaffney and North Jersey Media Group. As the District Court explained, to

succeed under 42 U.S.C. § 1983, a plaintiff’s constitutional rights must have been

violated by a defendant acting under color of state law. See City of Chicago v. Int’l Coll.

of Surgeons, 522 U.S. 156, 180 (1997). Private actors may be deemed to have acted

under color of state law if their conduct is fairly attributable to the state. See Rendell-

Baker v. Kohn, 457 U.S. 830, 838 (1982). Manifestations of state authority may include

“flashing a badge, identifying oneself as a police officer, placing an individual under

arrest, or intervening in a dispute involving others pursuant to a duty imposed by police

department regulations.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994).

Although the Mierzwas allege that the Gaffneys’ vehicles that blocked the Mierzwas’

driveway, “brandished gold medallions originating in NJ law enforcement issue,”

(see Second Am. Compl. at 7), the mere presence of NJ law enforcement emblems, as in

this case, is insufficient to state a claim for “acting under color of state law” where there

is no allegation that the Gaffneys purported to exercise official authority over the

Mierzwas for the purpose of depriving them of their constitutional rights. See Wyatt v.

Cole, 504 U.S. 158, 161 (1992) (the “purpose of § 1983 is to deter state actors from using

the badge of their authority to deprive individuals of their federally guaranteed rights and

to provide relief to victims if such deterrence fails.”).

       Neither the North Jersey Media Group, nor the Gaffneys, are state actors, nor did

they act under color of state law; therefore, they cannot be liable under 42 U.S.C. § 1983,



                                               9
and thus the District Court did not err by dismissing Mierzwas’ federal claims against

them.3

C.       Summary Judgment in Favor of Defendants Officers Marsh, Stewart and
         Keating

         We exercise plenary review over the District Court’s grant of summary judgment

on the ground of qualified immunity. Hugh v. Butler County Family YMCA, 418 F.3d

265, 266 (3d Cir. 2005). To survive a motion for summary judgment, the Mierzwas

cannot rest solely upon their allegations in the pleadings, but rather must set forth specific

facts such that a reasonable jury could find in their favor, thereby establishing a genuine

issue of fact for trial. Id. at 267. The Mierzwas have not met their burden.

         Whether Defendants are entitled to qualified immunity requires a two-step inquiry:

whether the Officers’ acts violated a constitutional or statutory right, and if they did,

whether that right was clearly established at the time of the violation. See Yarris v.

County of Del., 465 F.3d 129, 140-41 (3d Cir. 2006) (citing Saucier v. Katz, 533 U.S.

194, 201 (2001)). To determine whether Defendants committed a constitutional violation

by using excessive force in the context of an arrest, the Court applies the Fourth


     3
    The District Court properly declined to exercise supplemental jurisdiction over the
Mierzwas’ remaining state law claims against the Gaffneys, NJMG, Rose Ann
Merendino, Officers Dudek, Blackfeld and Zangara, the City of Garfield, and the Garfield
Police Department for loss of consortium. See United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726 (1966) (“[I]f the federal claims are dismissed before trial, even though
not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”).
To the extent that the Mierzwas claim loss of consortium for Mrs. Mierzwa with regard to
any other Defendants, their failure to argue this point in their opening brief constitutes
waiver of that argument on appeal. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003).

                                              10
Amendment’s “reasonableness test.” Graham v. Connor, 490 U.S. 386, 395 (1989).

Application of the test “requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. at 396. Other relevant factors include

“the possibility that the persons subject to the police action are themselves violent or

dangerous, the duration of the action, whether the action takes place in the context of

effecting an arrest, the possibility that the suspect may be armed, and the number of

persons with whom the police officers must contend at one time.” Estate of Smith v.

Marasco, 318 F.3d 497, 515 (3d Cir. 2003) (citing Sharrar v. Felsing, 128 F.3d 810, 822

(3d Cir. 1997)).

       The Mierzwas have not produced evidence from which a finder of fact could

arguably infer that the Defendants’ use of force was objectively unreasonable in light of

the circumstances surrounding his arrest. Although Mr. Mierzwa was arrested in

connection with a minor offense (tumultuous behavior), the undisputed facts show that he

demonstrated unprovoked animosity towards Defendants upon their arrival at the scene

and refused to comply with their requests that he calm down and step to the curb. These

circumstances gave Defendants probable cause to believe Mr. Mierzwa was violating

applicable criminal law by creating a public disturbance and reason to believe that he

potentially constituted a threat to their safety. Defendants gave Mr. Mierzwa fair warning



                                             11
of the consequences of his behavior, advising him that he would be subject to arrest if he

failed to calm down and cease creating a disturbance. It is undisputed that Mr. Mierzwa

failed to comply and attempted to leave the scene and evade arrest. As a result,

Defendants used physical force to restrain him in order to effectuate the arrest. Mr.

Mierzwa continued to resist arrest by flailing his arms and trying to break free and

Defendants used pepper spray to complete the arrest when physical restraint proved

ineffective.

       The Supreme Court affords arresting officers “the right to use some degree of

physical coercion . . . .” Graham, 490 U.S. at 396. Here, the arresting officers did not use

more physical coercion than necessary. When Mr. Mierzwa continued to resist, it was

reasonable for the officers to physically restrain him and to administer the pepper spray in

order to effectuate the arrest. The use of the pepper spray, given Mr. Mierzwa’s

non-compliance, was plainly proportional to the need for force. See, e.g., Janicsko v.

Pellman, 774 F. Supp. 331, 341-42 (M.D. Pa. 1991), aff’d, 970 F.2d 899 (3d Cir. 1992)

(denying summary judgment because officer may have repeatedly kicked plaintiff, but

stating “[t]he other measures used by defendants, the restraints, the pulling of hair, the

manhandling, may be viewed as a matter of law the concomitants of a contested arrest.”).

Because the Mierzwas have failed to meet their burden of showing a genuine issue of

material fact as to the first prong of the qualified immunity test we need not reach the

second prong.



                                             12
       Other than the bald allegations in their pleadings, the Mierzwas have failed to

produce affidavits or other evidence showing a genuine issue for trial. Therefore,

summary judgment was properly entered in favor of Defendants Officers Marsh, Stewart

and Keating on the issue of qualified immunity. See Fed. R. Civ. P. 56(e).4

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment. The

Mierzwas’ motion to file additional reply briefs in this matter is denied.




   4
     It also appears the District Court properly terminated Robert, Saulius and Traci
Shikhman and Richard Uram from the case. It appears that the Mierzwas’ claims against
them either did not present a federal question or were unrelated to their § 1983 claims.
See 28 U.S.C. §§ 1331, 1367 (“The district courts may decline to exercise supplemental
jurisdiction over a claim (a) if–(3) the district court has dismissed all claims over which it
has original jurisdiction.”). In addition, it also appears that complete diversity of
citizenship was absent. See 28 U.S.C. § 1332.

                                              13
