                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2002

Oliveira v. Irvington Police
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-3642




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Recommended Citation
"Oliveira v. Irvington Police" (2002). 2002 Decisions. Paper 445.
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                                                                     NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 00-3642


                     FRANK PASCUCCI, SERGEANT,
                                         Appellant

                                 v.

                     THE TOWNSHIP OF IRVINGTON;
                  THE IRVINGTON POLICE DEPARTMENT;
                       KEVIN HUGHES, OFFICER;
                      GEORGE VENTURI, CAPTAIN;
                      STEVEN PALAMARA, CHIEF;
                 JOHN DOES 1-10, (representing one
                    or more unknown defendants)


         On Appeal from the United    States District Court
                  for the District    of New Jersey
                   (D.C. Civil No.    98-cv-00965)
             District Judge: Hon.     William G. Bassler



            Submitted Under Third Circuit LAR 34.1(a)
                           July 22, 2002

      Before:   SLOVITER, NYGAARD, and BARRY, Circuit Judges

                      (Filed : July 25, 2002)



                       OPINION OF THE COURT
SLOVITER, Circuit Judge.

     This appeal arises out of an action filed by Appellant Frank Pascucci in the United
States District Court for the District of New Jersey against the Township of Irvington, the
Irvington Police Department, and officers of that Department. Pascucci alleges
employment discrimination in violation of 42 U.S.C. 1983, the New Jersey
Constitution, the New Jersey Law Against Discrimination, the New Jersey Tort Claims
Act, and various other state law claims. In addition to the Township and the Police
Department, Pascucci, a former member of the Irvington Police Department, named as
defendants Officer Kevin Hughes, Captain George Venturi, Chief Steven Palamara, and
Deputy Chief James Galfy. Pascucci’s complaint was consolidated in the District Court
with that of two other Irvington police officers, Jaime Oliveira and Ladimir Tavares,
whose appeal is also before this court.
     The defendants moved for summary judgment on all claims. The District Court
granted the motion as to Pascucci’s claims of malicious prosecution, negligent
supervision, respondeat superior, tortious interference with economic advantage,
harassment and retaliation, and violation of 1983. The District Court denied the
motion for summary judgment as to several state law claims, but dismissed those claims
without prejudice to plaintiff’s refiling them in state court. Pascucci appeals the grant of
summary judgment. We will affirm.                               II.
                           DISCUSSION
     Inasmuch as we are writing a not precedential opinion and this is only for the
benefit of the parties who are fully aware of the extensive facts and background of this
case we see no need to recapitulate them. The issues raised by Pascucci’s appeal are:
          1. Whether the District Court erred in its determination that Pascucci failed to
     meet the threshold requirements of the New Jersey Tort Claims Act;
          2. Whether the District Court improperly granted summary judgment to
     Defendants Hughes and Venturi as to the claim of malicious prosecution;
          3. Whether the District Court improperly granted summary judgment to
     Defendants on Pascucci’s claims under the New Jersey Law Against
     Discrimination;
          4. Whether the District Court improperly granted summary judgment to
     Defendants on Pascucci’s 1983 claims; and
          5. Whether the District Court improperly granted summary judgment to
     Defendants on Pascucci’s claims of retaliation and harassment under N.J. Stat.
     Ann. 10:5-12 and 42 U.S.C. 1983.
     We give plenary review to the grant of summary judgment, applying the same test
as the District Court. See Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231, 233 (3d
Cir. 2002) (en banc).
     With respect to the first issue, we conclude that the District Court properly granted
summary judgment to the defendants on Pascucci’s claim under the New Jersey Tort
Claims Act, N.J. Stat. Ann. 59:8-1 et seq. (2002), because Pascucci’s injuries do not
meet the threshold requirement of demonstrating permanent loss. Although Pascucci
suffered from panic attacks, anxiety, depression, and insomnia, he has not shown any
"permanent loss of a bodily function, permanent disfigurement or dismemberment,"as
required by N.J. Stat. Ann. 59:9-2(d). The only evidence of permanence is the report
of Pascucci’s psychiatrist stating that "[t]here is a potential permanency . . . of about 15-
20%, for some of [Pascucci’s] symptoms, due to many factors both internal and
external." App. at 210. This "potential" for the permanency of some of Pascucci’s
symptoms does not rise to the level of "a permanent loss of a bodily function that is
substantial," and therefore this claim must fail. Ponte v. Overeem, 791 A.2d 1002, 1006-
07 (N.J. 2002) (rejecting plaintiff’s claim where her injury requiring knee surgery was
not clearly permanent despite chronic pain at the time); see also Brooks v. Odom, 696
A.2d 619, 624 (N.J. 1997) (rejecting plaintiff’s claim despite still experiencing pain and
limitation of mobility in her neck and back that is permanent because she could still
"function both in her employment and as a homemaker").
     With respect to the second issue, we conclude that the District Court did not err
when it dismissed Pascucci’s claim of malicious prosecution against Defendants Hughes
and Venturi. The District Court correctly concluded that Pascucci did not demonstrate
the fourth prong of the test for malicious prosecution: that the criminal prosecution was
"terminated favorably to the plaintiff." Lind v. Schmid, 337 A.2d 365, 368 (N.J. 1975).
     Hughes voluntarily dismissed the charges that he brought against Pascucci, but he
only did so conditionally. Hughes only agreed to drop the charges if Pascucci and
Oliveira agreed not to file a criminal complaint against him. "[T]here is no favorable
termination where the complaint was withdrawn pursuant to an agreement of
compromise with the accused." Rubin v. Nowak, 590 A.2d 249, 250-51 (N.J. Super. Ct.
App. Div. 1991) (citation omitted). Pascucci claims that he gave up nothing by agreeing
not to file a criminal complaint against Hughes and thus, that there exists a material issue
of fact as to whether there was an agreement of compromise. However, Hughes’
apparent unwillingness to withdraw the charges without this concession by Pascucci
qualifies as an agreement of compromise and does not require remand to the District
Court. The fact that Pascucci may have known that he had no basis for bringing any
criminal charges against Hughes does not alter the fact that there was an agreement, as it
affects only what the agreement was worth to Pascucci. Pascucci has provided no
authority to show that an individual’s subjective value of a compromise plays a role in
determining whether there was an agreement of compromise.
     We further reject Pascucci’s third claim that the District Court erred by dismissing
his claims of a hostile work environment and conspiracy under the New Jersey Law
Against Discrimination (NJLAD), N.J. Stat. Ann. 10:5-1 et seq. (2002), because there
was no evidence that Pascucci was discriminated against based on his affiliation with
members of a protected group, his co-plaintiffs Oliveira and Tavares, for whom the
District Court found genuine issues of material fact with respect to this claim. Pascucci
concedes that he is not a member of a protected class but points to decisions that have
allowed plaintiffs to receive the protection of the NJLAD when they were discriminated
against because of their affiliation with members of a protected class. See O’Lone v.
N.J. Dep’t of Corrections, 712 A.2d 1177, 1180 (N.J. Super. Ct. App. Div. 1998)
(upholding plaintiff’s allegation of discrimination due to his association with his African-
American girlfriend because "he suffered the same injury as a minority"). There was
some evidence to support a claim of discrimination against Oliveira and Tavares, who
were subjected to racial slurs. On the other hand, they were members of a protected
group, whereas there is no evidence that Pascucci, their friend, was subject to a hostile
work environment because of his friendship with them.
     With respect to the fourth issue, we conclude that Pascucci did not have a claim
under 42 U.S.C. 1983. The District Court concluded that Pascucci had not proven that
the defendants’ "’conduct violated some clearly established statutory or constitutional
right.’" App. at 43 (quoting Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)).
The District Court conducted a procedural and substantive due process analysis and
determined that Pascucci had not been deprived of life, liberty, or property without due
process of law. The District Court held that Pascucci had not shown any property
interest in his employment, but that even if he had, he had not been denied that property
interest nor was he a victim of "a government action that was arbitrary, irrational or
tainted by improper motive." App. at 46 (quoting Woodwind Estates v. Gretkowski, 205
F.3d 118, 124 (3d Cir. 2000) (quotation omitted)).
     As Pascucci points out, New Jersey law provides that "the employment of . . .
members and officers [of a municipal police department] shall be indeterminate and
continuous during good behavior and efficiency." N.J. Stat. Ann. 40A:14-128 (2002).
To the extent that Pascucci left his employment voluntarily, he has not shown that he was
deprived of his right to that employment. However, even if Pascucci has an identifiable
property interest because his resignation stemmed from deprivations caused by the
incident with Defendant Hughes, his claim against each defendant must still fail.
Pascucci has presented no evidence that any official policy of the Township or Police
Department was responsible for his injury. See Monell v. Dep’t of Social Servs., 436
U.S. 658, 694 (1978) (stating that a local government entity is liable "when execution of
[its] policy or custom . . . inflicts the injury"). Pascucci’s own expert testified that he h
no criticism of the policies of the Township and Police Department. Supp. App. at 204.
     Further, the facts do not show that Defendants Venturi or Palamara violated
department policies to discriminate against Pascucci. The evidence does not indicate that
Venturi influenced Hughes’ decision to file a criminal complaint, specifically, Hughes
testified that Venturi "tried to discourage" him from filing. Supp. App. at 157. The
standard operating procedures require that the county prosecutor be notified of the
possibility of a criminal act by an officer, and that the police department must take "[n]o
further action . . . including the filing of charges against the officer, until directed by th
county prosecutor." App. at 140. Thus, once Hughes decided to act as a civilian and file
a criminal complaint, Venturi and Palamara cannot be faulted for not investigating the
matter. In addition, Venturi and Palamara did not violate any policies by not turning over
to the prosecutor the prior police report indicating earlier damage to Hughes’ vehicle
because Pascucci and his lawyer had possession of that document and were in a position
to turn that document over themselves. Venturi and Palamara’s discretionary exercises
of authority, not in violation of any clearly established statutory or constitutional right,
are entitled to qualified immunity and the District Court was correct to grant summary
judgment on this issue. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("[G]overnment
officials performing discretionary functions, generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.").
     With respect to the fifth and final issue raised by Pascucci, the District Court
properly granted summary judgment as to Pascucci’s claims of retaliation and harassment
under the NJLAD and 42 U.S.C. 1983. Pascucci claims that after he filed the
complaint in the instant matter, the Department retaliated against him by sending officers
to his home to confirm his compliance with the sick leave rule and by filing frivolous
disciplinary notices, culminating in Pascucci’s inability to work. However, as explained
above, Pascucci has not explained how the defendants did anything affirmatively to
deprive him of his rights or privileges under the Constitution. Pascucci’s doctor
indicated that his disability was an outgrowth of the Hughes incident, and made no
mention of harassment or retaliation as a cause. The evidence also does not suggest that
the home visits by Internal Affairs were unusual; to the contrary, they appear to be part of
a policy applied to all officers on sick leave. Supp. App. at 189, 252-68. Finally,
Pascucci did not contest his need to leave the Department due to his disability,
undermining his claim of an adverse employment decision. Thus, the evidence taken
together does not support Pascucci’s claim of retaliation or harassment.
                              IV.
                           CONCLUSION
     For the reasons set forth herein, we will affirm the decision of the District Court
denying in part and granting in part Defendants’ summary judgment motion.
______________________

TO THE CLERK:

          Please file the foregoing opinion.



                    /s/Dolores K. Sloviter
                    Circuit Judge
