                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2005

Gonzalez v. Feiner
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1571




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"Gonzalez v. Feiner" (2005). 2005 Decisions. Paper 1220.
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                                                     NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                             NO. 02-1571
                          ________________

                      JACQUELINE GONZALEZ;
                        MADELINE RAWLES

                                    v.

          USHER FEINER, LAKEWOOD POLICE CHAPLAIN;
  LAKEWOOD POLICE DEPARTMENT; MICHAEL LYNCH, POLICE CHIEF;
JOHN MARSHALL, SR., DEPUTY CHIEF, INDIVIDUALLY AND AS A POLICE
        OFFICER FOR THE CITY OF LAKEWOOD, NEW JERSEY;
  LAKE WOOD OFFICER, UNKNOWN POLICE OFFICER FOR THE CITY OF
LAKEWOOD TOWNSHIP; LAKEWOOD TOWNSHIP POLICE COMMISSIONER;
       SAMUEL MAYER; BIAS KAILA TORA PREP HIGH SCHOOL;
          YISROEL SCHENKOLEWSKI, POLICE CHAPLAIN;
                   GITAL/DAVID KALUSZYNER

                               Madeline Rawles,

                                  Appellant
              ____________________________________

             On Appeal From the United States District Court
                     For the District of New Jersey
                     (D.N.J. Civ. No. 00-cv-1172)
                  District Judge: Garrett E. Brown, Jr.
             _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                            May 29, 2003

        Before: ROTH, MCKEE AND AMBRO, CIRCUIT JUDGES

                         (Filed: May 11, 2005)
                                  _____________________

                                          OPINION

                                 _______________________




PER CURIAM


       Madeline Rawles appeals the order of the United States District Court for the

District of New Jersey granting the defendants’ motion for summary judgment and

dismissal for failure to state a claim.

       On March 10, 2000, with co-plaintiff Jacqueline Gonzalez,1 appellant Madeline

Rawles filed a civil rights complaint, claiming that members of the Lakewood Police

Department and various private individuals violated her rights under the Civil Rights Act

of 1964, 42 U.S.C. §§ 1983 and 1985(3), and the Equal Protection Clause of the 14 th

Amendment.

       Rawles’s claims arise out of an incident that occurred during an orthodox Jewish

community’s observance of the holiday of Purim. On March 12, 1998, while driving

through a neighborhood in Lakewood, New Jersey, Rawles and Gonzalez noticed

numerous figures hanging from trees on the private properties of certain defendants.

Gonzalez and Rawles, both African-Americans, associated the display with “the history




       1
           Gonzalez has filed a separate appeal. See C.A. No. 02-1160.

                                              2
of Black men hanging from Oak Trees by the Whites of the South.” They claimed that

the hanging figures were racist, offensive, an insult to their civil rights, and a threat to all

persons of color. When they tried to photograph the figures at the Bias Kaila Tora Prep

School, they were accosted by eight men dressed in very colorful clothing, chanting in a

foreign language, and waving their hands in the air. Meanwhile, their car was blocked

from exiting by a parked car owned by defendant Feiner. They claimed that a man

wearing a ski mask, who was sitting in the driver’s seat of Feiner’s parked car, pointed a

gun at them, temporarily preventing them from leaving the scene. Once the two women

made it into their car, defendant Mayer approached them, pointing two fingers at them in

a threatening manner. At some point, Gonzalez and Rawles were able to leave. They

drove to another property to photograph hanging figures on trees, where a little boy

pointed a gun with a red barrel at them while a number of adults looked on. Gonzalez

and Rawles immediately reported these incidents to the Lakewood Police, who allegedly

did not investigate the matter nor bring charges against the defendants.

       Rawles claimed two § 1983 conspiracies and one § 1985(3) conspiracy: (1)

defendant Feiner and the unidentified masked driver conspired to block her exit from the

scene in violation of § 1983; (2) defendants Mayer, the Bias Kaila Tora Prep School, the

Kaluszners, Schenkolewski, and Topas conspired with John Marshall, Deputy Chief of

the Lakewood Police, to deprive Rawles of her equal protection rights in violation of §

1983; and (3) Mayer, the Bias Kaila Tora Prep School, the Kaluszners, and



                                                3
Schenkolewski, conspired with Police Chief Lynch and Deputy Chief Marshall of the

Lakewood Police to violate her civil rights. She also claimed false imprisonment and

intentional infliction of emotional distress.

       In July 2000, the District Court granted defendant Topas’s motion to dismiss

Rawles’s original complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and

denied dismissal as to the remaining defendants.2 Upon completion of discovery, the

defendants filed a motion for summary judgment and to dismiss. The District Court

granted the motion in favor of all defendants. The District Court dismissed Count V of

Rawles’s Complaint for failure to state a claim upon which relief can be granted under the

Civil Rights Act of 1964, 42 U.S.C. § 2000a. Viewing the facts in the light most

favorable to Rawles, the District Court held that there was no evidence to establish that

any of the Lakewood Police Department defendants deprived Rawles of her rights granted

by the Equal Protection Clause. The District Court found that there was no record

evidence to support Rawles’s claim that the Lakewood Police Department maintained a



       2
         To the extent that Rawles appeals the order dismissing the complaint as to Topas,
we will affirm. Rawles claims that Topas conspired with other individuals and certain
members of the Lakewood Police to deprive Gonzalez of her civil rights. The allegations
against Reuel Topas, an attorney, pertain to his representation of certain defendants in a
related Municipal Court proceeding. His representation of the defendants in municipal
court, alone, does not render Topas a “person acting under color of state law” under
§ 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (a private attorney, even if
appointed and paid for by the state, is not acting under color of state law when performing
his function as counsel). And, we find no other evidence on this record of any nexus
between Topas and the Lakewood Police sufficient to establish that Topas conspired with
the Lakewood Police to deprive Gonzalez of her civil rights under §§ 1983 or 1985(3).

                                                4
race-based discriminatory policy. Specifically, the District Court found that Lakewood

Deputy Chief Marshall immediately responded to and actively investigated her complaint.

He also ultimately assisted Rawles (along with her co-plaintiff Gonzalez) in filing a

criminal complaint against various members of the Jewish community, including several

of the defendants. As for the § 1983 claims against Police Chaplains Feiner and

Schenkolewski, the District Court found that the record was devoid of any evidence that

either defendant acted in his capacity as police chaplain to deprive Rawles of her

constitutional rights, and thus Rawles failed to state a § 1983 claim against these

defendants. Finally, the District Court dismissed all of the remaining claims against the

private property owners upon whose land the trees with hanging figures were located,

because actions of private citizens, without any showing of state action, do not give rise

to a cognizable § 1983 claim. By order entered on December 10, 2001, the District Court

dismissed the Complaint, declining to exercise jurisdiction over the state law claims.

Rawles filed a timely notice of appeal.3   4




       3
          On July 19, 2002 the District Court granted Rawles’s motion for extension of
time to file a notice of appeal, and thus her notice of appeal, filed on February 20, 2002, is
timely.
       4
          We have jurisdiction to consider this appeal even though the District Court did
not explicitly dispose of the “counter-claims” raised by Topas in his Answer. In his
“Answer, Affirmative Defenses and Counterclaim,” Topas raised the affirmative defense
of “the doctrine of frivolous actions” and presented three counterclaims, all of which
reiterated the factual basis supporting the affirmative defense. Because the “counter-
claims” were merely restatements of Topas’s affirmative defense, they required no further
action by the District Court, and we are satisfied that the suit was terminated upon the
entry of the District Court’s order granting summary judgment in December 2001.

                                               5
       We exercise plenary review over an order granting summary judgment. GFL

Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 198-99 (3d Cir. 2001). Summary

judgment is proper when there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Id. at 199. We view the evidence in the light

most favorable to the nonmovant. Id. When a movant shows the absence of a genuine

issue, however, the burden shifts to the nonmovant to present evidence sufficient to

permit a jury to find in her favor. Id. Our review of the District Court’s dismissal

pursuant to Fed. R. Civ. P. 12(b)(6) is likewise plenary. Gallo v. City of Philadelphia,

161 F.3d 217, 221 (3d. Cir. 1998). We accept as true all factual allegations in the

complaint and will affirm a dismissal under Rule 12(b)(6) only if it is certain that no relief

can be granted under any set of facts which could be proved. Steamfitters Local Union

No. 420 Welfare Fund v. Phillip Morris Inc.,171 F.3d 912, 919 (3d. Cir. 1999).

       After a careful and independent review of the record, we will affirm judgment as

to all of the defendants for the reasons stated by the District Court in its memorandum

opinion, except with regard to Rawles’s conspiracy claims under §§ 1983 and 1985(3),

discussed further below.

       We find no record evidence supporting Rawles’s § 1983 conspiracy claim against

Lakewood Police Chaplain Feiner and the unnamed masked man sitting in Feiner’s car.

Even assuming Rawles’s contention “on information and belief,” that Feiner was present

on March 12, 1998, we find no record evidence of a race-based motive for the events in



                                              6
question or of an agreement between Feiner and the unidentified masked man to deprive

Rawles of her constitutional rights under § 1983. Davis v. Township of Hillside, 190

F.3d 167, 171 (3d Cir. 1999).

       Gonzalez would be entitled to relief on her § 1983 conspiracy claim against private

defendants Mayer, the Bias Kaila Tora Prep School, and the Kaluszners if she could show

that these defendants somehow reached an understanding with at least one of the

Lakewood Police Defendants to deny Gonzalez of her civil rights. See Kost v.

Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993). “Establishing the existence of this

‘understanding,’ however, is really nothing more than another way to show state action as

required by § 1983 when a private party is alleged to have violated that statute.” Id. We

have already held that the District Court properly dismissed Gonzalez’s non-conspiracy §

1983 claims because there is no evidence that defendants Mayer, Bias Kalia Tora Prep

High School, and Gital and David Kaluszyner, all private parties, were “acting under

color of state law” for the purposes of § 1983.5 In the absence of any evidence from

which a reasonable factfinder could determine otherwise, we find no nexus between the

Lakewood Police Defendants and the alleged actions of the private defendants such that

the private defendants may be fairly treated as “state actors.” And thus, the District Court

properly granted summary judgment in the defendants’ favor as to the §1983 conspiracy



       5
        Though appellant names a “Lakewood Township Police Commissioner” in the
caption of the complaint, there is no Police Commissioner employed within the Township
of Lakewood.

                                             7
claim.

         Likewise, with respect to the § 1985(3) conspiracy claim, we find no evidence on

this record of a conspiracy between any of the private defendants and the Lakewood

Police. Moreover, there is no evidence sufficient to raise an inference of a race-based

motive for the actions alleged in the Complaint. Griffin v. Breckenridge, 403 U.S. 88,

102 (1971).

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

all of Rawles’s claims as to all defendants.
