                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-2007

Moore v. Carteret Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2840




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BLD-2                                            NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 07-2840
                                ___________


                             LEROY T. MOORE,
                                       Appellant,

                                      v.

                  CARTERET POLICE DEPARTMENT;
              JUAN RIVERA, PTL.; CHRISTOPHER ELY, DIR.;
                       RAYMOND NOVAK, DET.

                  ____________________________________

                On Appeal from the United States District Court
                          for the District of New Jersey
                           (D.C. Civil No. 04-cv-3313)
                 District Judge: Honorable Stanley R. Chesler
                 ____________________________________

            Submitted for Possible Dismissal for Lack of Jurisdiction,
            for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B),
        or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                October 4, 2007

             Before: McKEE, RENDELL and SMITH, Circuit Judges

                          (Filed: November 9, 2007)
                                  _________

                                   OPINION
                                  _________

PER CURIAM
       Leroy T. Moore, a state prisoner proceeding pro se, appeals from the District

Court’s grant of summary judgment in favor of defendants on his malicious prosecution

claim against the Carteret police department, Officer Juan Rivera, and Detective

Raymond Novak.1 Because Moore’s appeal presents no substantial question, we will

summarily affirm. LAR 27.4; I.O.P. 10.6.

       Moore’s claim for malicious prosecution arises out of his arrest on March 26,

2002. On that day, Officer Rivera sought and obtained a search warrant on the basis of

witness statements alleging Moore’s involvement with a burglary and theft. Later the

same day, officers arrested Moore at an apartment where he was seen entering wearing a

black puffy jacket. The apartment was searched, and the black, puffy jacket found inside

was identified by the apartment’s resident as belonging to Moore. The jacket contained

bags of a white, powdery substance that police suspected to be cocaine. This evidence

provided the basis for a second Warrant-Complaint, which was issued against Moore for

possession of a controlled dangerous substance. The Warrant was apparently based on

the detective’s observation of the substance in the jacket Moore had been seen wearing.

Some time after Moore’s arrest, the substance found in Moore’s jacket tested negative for

a controlled dangerous substance.




   1
     Defendant Christopher Ely, who was identified in the complaint, is not a party to the
suit because he was never served with the complaint. As a general rule, unserved
defendants are not parties within the meaning of Fed. R. Civ. P. 54(b). United States v.
Studivant, 529 F.2d 673, 674 n.2 (3d Cir. 1976).

                                             2
       A New Jersey Grand Jury voted no-bill against Moore for conspiracy, burglary,

theft, and receiving stolen property. With regard to the second Warrant, Moore was

found not guilty on a down-graded charge for failure to make lawful disposition of a

controlled substance. Six months later Moore filed a complaint alleging various causes of

action against several defendants. Only Moore’s claim for malicious prosecution was

allowed to proceed.2 The parties filed cross motions for summary judgment and the

District Court granted defendants’ motion on the sole issue of whether or not the police

had probable cause to arrest and charge Moore.

       Before considering the merits we must dispense with the jurisdictional question of

whether Moore’s appeal was timely filed.3 Moore did not file his formal notice of appeal

until June 7, 2007. Defendants argue that his motion is untimely and thus jurisdictionally

barred. However, Moore did file an application to proceed in forma pauperis on appeal in

the District Court within thirty days of the District Court’s order.4 Because Moore timely


   2
     The Honorable William J. Martini reviewed Moore’s complaint pursuant to 28
U.S.C. §§ 1915(e) and 1915A. Judge Martini concluded that Moore had cognizable
claims for false arrest, malicious prosecution, excessive bail in violation of the Eighth
Amendment, and deprivation of property under the Fourteenth Amendment. However, he
dismissed Moore’s claim for false arrest as time-barred. With the exception of his
malicious prosecution claim, Moore’s remaining claims were dismissed for failure to state
a claim.
   3
    We have jurisdiction of appeals from all final decisions of the district courts. 28
U.S.C. § 1291.
   4
    The District Court’s Order, granting summary judgment, was entered on May 3,
2007. Moore submitted his application for proceeding in forma pauperis on May 22,
2007.

                                             3
demonstrated an intent to appeal, we have jurisdiction to consider his claim on the merits.

See Smith v. Barry, 502 U.S. 244, 247-49 (1992) (holding an appellate brief may serve as

a notice of appeal); Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007) (holding

court had jurisdiction where the appellant filed a motion for leave to proceed on appeal

without prepayment of costs or fees, which evidenced an intent to appeal); see also LAR

3.4.

       Having concluded that jurisdiction is proper, we turn to review of the district

court’s grant of summary judgment under a plenary standard. Moore v. City of

Philadelphia, 461 F. 3d 331, 340 (3d Cir. 2006). Summary judgment is appropriate when,

after considering the record as a whole, there is no genuine issue of material fact.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986). In

examining the record, we will draw all reasonable inferences in favor of the non-moving

party. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).

       The existence of probable cause is an absolute defense to a malicious prosecution

claim brought either under § 1983 or pursuant to New Jersey law. Wildoner v. Borough

of Ramsey, 744 A.2d 1154, (2000). Thus, to survive defendants’ motion for summary

judgment, the evidence, viewed in the light most favorable to Moore, must demonstrate

that defendants did not have probable cause to arrest him on March 26, 2002.

       We agree with the District Court’s conclusion that the record demonstrates

sufficient evidence of probable cause. The record shows that Officer Rivera relied on the



                                              4
statements of two witnesses at the scene of the theft and burglary as the basis for

obtaining and executing a warrant against Moore. Specifically, Christine and Tara

Bowers stated that the two individuals who were found at the scene, and who had the

stolen items in their possession, had identified Moore as their accomplice. Moore does

not dispute the veracity of the information told to Officer Rivera by Tara And Christine

Bowers. Their statements provided a sufficient basis for obtaining and executing a

warrant against Moore and thus Moore’s malicious prosecution claim cannot go forward.

       We also agree with the District Court that probable cause existed to obtain and

execute a second warrant against Moore for possession of a controlled substance. The

evidence for probable cause included the presence of baggies containing a white powdery

substance located inside the jacket that Moore had been seen wearing prior to exiting the

apartment where the jacket was found. In addition, the apartment’s resident identified the

jacket as belonging to Moore.

       For these reasons, we find no basis for reversing the District Court’s decision and

will therefore affirm its judgment.




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