                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2006

Cuvo v. De Bias
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4221




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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1585


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                                   NOT PRECEDENTIAL
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 04-4221


               JACK WALTER CUVO;
                 JENNIFER CUVO,

                           Appellants

                           v.

          CHRISTOPHER DE BIASI, Officer,
                  Individually and in his
             official capacity as a member of
        the Palmer Township Police Department;
              DANIEL MONEK, Detective,
                  Individually and in his
             official capacity as a member of
        the Palmer Township Police Department;
            BRUCE FRETZ, Chief of Police,
                  Individually and in his
           official and supervisory capacity as
    Chief of the Palmer Township Police Department;
             THE TOWNSHIP OF PALMER


      Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                 (D.C. No. 03-cv-05799)
      District Judge: Honorable James K. Gardner


       Submitted under Third Circuit LAR 34.1(a)
                      on 11/7/05

BEFORE: ROTH, FUENTES AND GARTH, Circuit Judges

              (Filed: February 14, 2006 )
                                        OPINION


ROTH, Circuit Judge:

I. Facts

       Jack Cuvo appeals from the judgment of the District Court dismissing his

Complaint. On October 19, 2001, Cuvo was driving his car a few blocks from his home

in Palmer Township, Pennsylvania, when he experienced a momentary loss of

consciousness. Cuvo lost control of the car and crashed through a road sign and a fire

hydrant, finally coming to rest on a curb. Cuvo claims the loss of consciousness was

caused by head injuries sustained in an assault by Easton, Pennsylvania, police officers

ten days earlier.

        After the accident, Cuvo required medical attention. Christopher De Biasi,1 a

Palmer Township police officer, apparently passed by the scene and stopped to

investigate. Instead of calling for medical treatment, Officer De Biasi arrested Cuvo and



       1
        There is some confusion as to the proper spelling of Officer De Biasi’s name.
Indeed, in Appellees brief, he is referred to both as “DeBiasi” and “DeBias” without any
apparent rhyme or reason. The caption used by the District Court contained yet a third
variation, “De Bias,” and that is how he was referred to by the District Court in its
opinion. We will use “De Biasi”, with a space between “De” and “Biasi”, because that is
the spelling on the caption before this Court. It is odd that even attorneys for appellees
seem uncertain as to the proper spelling of the name of one of their clients. To be clear,
when we refer to “De Biasi” we intend to refer to the person also intermittently identified
as “DeBias”, “De Bias”, or “DeBiasi”.

                                             2
transported him to Easton Hospital. At the hospital, Officer De Biasi and Cuvo were met

by Detective Daniel Monek, another Palmer Township officer. At this point, Cuvo

alleges that representatives of his counsel told the officers that the accident was the result

of a seizure caused by the battery by the Easton police. Unpersuaded by this information,

the officers responded that Cuvo was under arrest for driving under the influence in

violation of 75 P A. C ONS. S TAT. A NN. § 3731. No criminal charges were ever filed.

       After the incident, Cuvo alleges that Officer De Biasi and Detective Monek

published information concerning the accident, including assertions that Cuvo was under

the influence of controlled substances and that those substances were the cause of his

crash. Cuvo claims that Officer De Biasi and Detective Monek made these comments,

knowing they were false, to discredit Cuvo with respect to the earlier incident with the

Easton police, as well as to curry favor with police officers from that neighboring

jurisdiction. Cuvo alleges that defendant Bruce Fretz, the Palmer Township Chief of

Police, tacitly approved the release of the false information.

       On October 20, 2003, Jack Cuvo and his wife Jennifer filed a Complaint in the

United States District Court for the Eastern District of Pennsylvania. Count I alleged that

the defendants, Officer De Biasi, Detective Monek, Chief Fretz, and the Township of

Palmer, violated Cuvo’s civil rights under 42 U.S.C. § 1983 by arresting and detaining

him without probable cause. The Complaint also alleged counts of intentional infliction

of emotional distress, assault and battery, negligent infliction of emotional distress, false



                                              3
arrest, false imprisonment, malicious prosecution, and a loss of consortium claim for

Cuvo’s wife. On January 26, 2004, the defendants filed a motion to dismiss. By Order

dated September 30, 2004, the District Court granted the defendants’ motion and

dismissed the Complaint. Cuvo appealed.

       Cuvo’s appeal lists five instances of error: (1) the District Court erred in

dismissing six of the eight counts of his Complaint by concluding that the mere

occurrence of an automobile accident constitutes probable cause for an arrest for driving

under the influence; (2) the District Court erred by finding that the defendants had

qualified immunity; (3) the District Court erred in striking Counts I and II on the ground

that they constitute impermissible defamation claims; (4) the District Court erred in

finding that a suit brought against a municipal employee in his official capacity is

functionally the same as a suit against the municipality itself; and (5) the District Court

erred in dismissing Cuvo’s claims against the municipality for unconstitutional policies

because of its mistaken finding that probable cause existed to arrest Cuvo. We will

affirm in part and reverse in part.

II. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3) and 1367.

We have jurisdiction over this appeal from a final judgment pursuant to 28 U.S.C. § 1291.

We exercise plenary review over complaints dismissed for failure to state a claim under

F ED. R. C IV. P. 12(b)(6). See Ditri v. Coldwell Banker Residential Affiliates, Inc., 954



                                              4
F.2d 869, 871 (3d Cir. 1992). In reviewing a motion to dismiss under Rule 12(b)(6), we

accept as true all well-pled factual allegations and all reasonable inferences capable of

being drawn therefrom. Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993). We

affirm only if it is certain that no relief could be granted under any set of facts that the

plaintiff could prove. Id.

III. Discussion

       To effectuate a lawful arrest, the Palmer Township officers had to have probable

cause to believe that Cuvo was driving under the influence. See Atwater v. City of Lago

Vista, 532 U.S. 318 (2001); Ker v. Cal., 374 U.S. 23, 34-35 (1963). In the present case,

the only evidence that Cuvo was driving under the influence was his involvement in a

single-car automobile accident. However, an accident alone, regardless of severity, is

insufficient to form the basis for probable cause to believe that the driver was under the

influence of alcohol. See Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992);

Commonwealth v. Franz, 634 A.2d 662, 664-65 (Pa. Super. Ct. 1993). Instead, a finding

of probable cause to believe a driver is under the influence of alcohol requires some

evidence independent of the accident itself, such as bloodshot eyes, slurred speech, or the

smell of alcohol on the suspect’s breath. See Commonwealth v. Urbanski, 627 A.2d 789,

793 (Pa. Super. 1995). Taking Cuvo’s allegations as true, the record is devoid of any

evidence, other than the accident itself, that would have led Officer De Biasi and

Detective Monek reasonably to suspect that Cuvo was driving under the influence.


                                               5
Therefore, taking all facts in the Complaint as true, we conclude that Officer De Biasi and

Detective Monek did not have probable cause to arrest Cuvo for driving under the

influence.2

       The District Court’s reliance on 75 P A. C ONS. S TAT. A NN. § 1547(a) as

authorization for the arrest is misplaced. Section 1547(a) provides:

              Any person who drives, operates or is in actual physical control of the
              movement of a vehicle in this Commonwealth shall be deemed to have
              given consent to one or more chemical tests of breath, blood or urine for the
              purpose of determining the alcoholic content of blood or the presence of a
              controlled substance if a police officer has reasonable grounds to believe
              the person to have been driving, operating or in actual physical control of
              the movement of a vehicle:


              (1) in violation of section . . . 3802 (relating to driving under the influence
              of alcohol or controlled substance) . . . or


              (2) which was involved in an accident in which the operator or passenger of
              any vehicle involved or a pedestrian required treatment at a medical facility
              or was killed.



       2
        We are aware that Officer De Biasi and Detective Monek played distinct roles in
Cuvo’s arrest. Under the collective knowledge doctrine, United States v. Belle, 593 F.2d
487, 497 n.15 (3d Cir. 1979), we will grant Detective Monek the benefit of any
information that Officer De Biasi learned in his initial response to the scene. This
concession is of little benefit to Detective Monek, however, because Officer De Biasi was
not aware of facts constituting probable cause and there is nothing in the record to suggest
that Detective Monek had any additional evidence that Cuvo was intoxicated before
participating in the continuing deprivation of Cuvo’s liberty. Reading the Complaint in
the light most favorable to Cuvo, Detective Monek played a part in his arrest, acting
under color of state law, and did so without probable cause. “Defendant Monek and
Defendant DeBias [sic] insisted that Mr. Cuvo was under arrest for Driving Under the
Influence . . ..” Compl. at para. 20 (emphasis added).

                                              6
This statute fails to justify the arrest for several reasons. First, and most obviously, the

statute permits the administration of a blood alcohol test–not an arrest. Cuvo has not

alleged–and neither party has indicated–that the defendants administered such a test here.

It is an arrest that is at issue. Second, even if the statute did permit an arrest under the

circumstances it enumerates, the arrest would not be permitted under the circumstances

here. Section 1547(a)(1) requires that there be “reasonable grounds to believe” that a

driver was operating a car while under the influence. Here, as discussed above, no such

grounds are alleged. Section 1547(a)(2) requires only that the operator of the vehicle be

in need of medical treatment–which Cuvo was–but the Pennsylvania Supreme Court

invalidated this section over ten years ago. Kohl, 615 A.2d at 308.3

       Having concluded that Officer De Biasi and Detective Monek lacked probable

cause to arrest Cuvo and that there was no independent statutory authorization for the

arrest, we now address whether they are entitled to qualified immunity. We believe the

answer is no. Qualified immunity is intended to shield government officials performing

discretionary functions, including police officers, “from liability from civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.



       3
        The District Court noted that “the law has been repeatedly upheld by the appellate
courts of Pennsylvania.” The cases it cited in support of this proposition, however, were
(1) a case applying the law before the Pennsylvania Supreme Court struck it down and (2)
a case upholding a blood test under (a)(1) of the statute in a case where, unlike here, the
police had probable cause to believe the driver was drunk.

                                               7
800, 818 (1982); Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004).4 As discussed above,

the facts alleged (taken in the light most favorable to Cuvo) show that the officers’

conduct violated Cuvo’s Fourth Amendment right to be free from arrest under the

circumstances of this case. Therefore, Officer De Biasi and Detective Monek would be

entitled to qualified immunity only if we determine that the right was not clearly

established.

       We note that “[a]s a general matter, a right is ‘clearly established’ when the

contours of the right are ‘sufficiently clear that a reasonable official would understand

that what he is doing violates that right.’” McGreevy v. Stroup, 413 F.3d 359, 366 (3d Cir.

2005) (quoting Saucier, 533 U.S. at 202). It is sufficiently clear that the officers’ conduct

–arresting Cuvo for driving under the influence absent probable cause–violates the Fourth

Amendment and that a reasonable official would understand as much. The officers, thus,

are not entitled to qualified immunity.5


       4
        Qualified immunity is not merely a defense to liability; but rather “an entitlement
not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S.
511, 526 (1985); Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). Accordingly, the
Supreme Court has emphasized the importance of resolving qualified immunity questions
as early in the proceedings as possible. Saucier v. Katz, 533 U.S. 194, 200 (2001);
Curley, 298 F.3d at 277.
       5
        The District Court held that Detective Monek was entitled to qualified immunity
“[b]ecause plaintiffs do not aver that the conduct of [Detective Monek] exceeded that of
Officer DeBias [sic] . . ..” Because of our conclusion that Officer De Biasi is not entitled
to qualified immunity, the District Court’s basis for immunizing Detective Monek is
undercut. As discussed above, even granting Detective Monek the benefit of Officer De
Biasi’s knowledge, participating in Cuvo’s arrest was a violation of Cuvo’s clearly
established right not to be deprived of liberty absent probable cause.

                                              8
       Our conclusion that the officers did not have probable cause to arrest Cuvo guides

our decision to reverse the District Court’s dismissal of the § 1983 claims against the

Township of Palmer and Chief Fretz. The District Court held that:

              Because we find no Constitutional violation arising from Officer DeBias’
              [sic] arrest and detainment of Mr. Cuvo, we are precluded from finding that
              any other officer or the Township violated Mr. Cuvo’s rights by not
              preventing the arrest and subsequent imprisonment.


Having already held that there was not probable cause to believe that Cuvo was

intoxicated when he was arrested, we must reverse the District Court’s dismissal of the §

1983 claims against Chief Fretz and the Township. The District Court did not articulate

any other basis for dismissal of these claims, and we will not assume one. In light of our

holding that Officer De Biasi and Detective Monek lacked probable cause to believe that

Cuvo was intoxicated when they arrested him, Cuvo’s Complaint supports a claim against

both Chief Fretz and the Township as well.6


       6
         There are, of course, different standards for § 1983 liability for a township and a
supervising officer than for officers alleged to have directly violated an individual’s
rights. Monell v. Dept. of Soc. Serv. of New York, 436 U.S. 658, 694 (1978) (describing
“policy or custom” liability for public entities); Robinson v. Pittsburgh, 120 F.3d 1286,
1294 (3d Cir. 1997) (discussing supervisory liability). We note that Cuvo alleges that
Chief Fretz “actually acquiesced” in the allegedly unconstitutional conduct perpetrated by
Officer De Biasi and Detective Monek. This can provide the basis for supervisory
liability under § 1983. Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
Nor, on the facts averred, is Chief Fretz entitled to qualified immunity because he tacitly
authorized the deprivation of Cuvo’s clearly established right not to be arrested without
probable cause. See McGreevy v. Stroup, 413 F.3d at 366. With respect to the Township,
Cuvo alleges, among other things, that the Township has a “policy, practice, procedure, or
custom” that led to the constitutional deprivation in this case. Such an allegation can
form the foundation of a claim of public entity liability under § 1983. Monell, 436 U.S. at

                                              9
       Furthermore, we will reverse the District Court’s dismissal of Counts I and II of

the Complaint insofar as the District Court held that Cuvo was alleging an impermissible

defamation action. Count I outlines Cuvo’s 42 U.S.C. § 1983 claim. The reference to

impairment of professional and personal reputation is properly understood as a

permissible component of damages stemming from the defendants’ alleged § 1983

violation. See Bolden v. Southeastern Pa. Transp. Auth., 21 F.3d 29 (3d Cir. 1994).

Count II, by its terms, alleges a claim of intentional infliction of emotional distress. It

simply is not an impermissible defamation cause of action.

       We will affirm the District Court’s dismissal of the claims against the officers in

their official capacities because a lawsuit against public officers in their official capacities

is functionally a suit against the public entity that employs them. McMillian v. Monroe

County, 520 U.S. 781 (1997). Because Cuvo is suing Palmer Township, the suit against

the officers in their official capacities is redundant. Id.; Kentucky v. Graham, 473 U.S.

159, 165-66 (1985).

       The District Court dismissed Cuvo’s malicious prosecution and negligent infliction

of emotional distress claims after noting that the “plaintiffs have failed to state a claim

upon which relief can be granted” for either one. Unfortunately, the District Court did

not provide any discussion beyond merely concluding that Cuvo failed to state a claim

under each theory. We will reverse these decisions because we will not divine the



694.

                                              10
rationale undergirding the dismissals. We make no comment on the substantive merits of

the claims alleged in either Count IV or Count VII.

       Finally, the District Court dismissed the rest of Cuvo’s state law claims after

dismissing the federal claims that formed the basis for original jurisdiction. 28 U.S.C. §

1367; Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 295 (3d Cir. 2003).

Because our decision revives the basis for original jurisdiction, Cuvo’s state law claims,

including his claims for malicious prosecution and negligent infliction of emotional

distress, are once again properly before the District Court. 28 U.S.C. § 1367.

IV. Conclusion

       We will affirm the District Court’s ruling dismissing the claims against the officers

in their official capacities because such claims are encompassed within Cuvo’s claims

against the Township itself. We will reverse the District Court’s dismissal of the

remaining federal and state claims and remand for proceedings consistent with this

opinion.




                                             11
