                                                  NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 14-3083
                                     _____________

                              MOHAMMAD MAHMOUD,
                                                              Appellant

                                             v.

              CITY OF PATERSON; POLICE CHIEF JAMES WIDDING;
                    POLICE DIRECTOR MICHAEL WALKER


                            On Appeal from the District Court
                              for the District of New Jersey
                           (District Court No.: 2-10-cv-05711)
                   District Judge: Honorable Dickinson R. Debevoise


                       Submitted under Third Circuit LAR 34.1 (a)
                                  on March 19, 2015


        Before: McKEE, Chief Judge, RENDELL and FUENTES, Circuit Judges

                                   (Filed: May 7, 2015)



                                      O P I N I O N*



RENDELL, Circuit Judge:


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Plaintiff-Appellant Mohammad Mahmoud appeals from the District of New

Jersey’s grant of summary judgment on his § 1983 and § 1981 claims against the City of

Paterson, Police Chief James Widding, and Police Director Michael Walker. For the

reasons stated below, we will affirm.

                                        I. Background

       Mahmoud is a Muslim-American who was hired by the Paterson Police

Department in 2001. In 2004, Mahmoud was accused of committing domestic violence

against his wife. Mahmoud was charged with simple assault, and his firearm was taken

away pursuant to the Attorney General Guidelines on Domestic Violence. As part of an

investigation by County Prosecutor Wronko, Police Chief Widding was asked to

complete a form regarding his recommendation as to whether Mahmoud should be

rearmed. Widding recommended that Mahmoud not be rearmed. The Prosecutor then

embarked upon an investigation in which he reviewed the details of the domestic

violence incident, interviewed Mahmoud’s wife, her sister and mother, reviewed

Mahmoud’s original hiring psychological evaluation and an additional psychological

evaluation conducted after the incident, and evaluated his fitness for duty reports. This

investigation culminated in the Prosecutor’s determination that Mahmoud not be

rearmed.

       In November 2010, Mahmoud brought an action under § 1983 and § 1981 against

the City of Paterson, Police Chief Widding, and Police Director Walker, alleging that the

decision not to rearm him was discriminatory because the Prosecutor had a history of

permitting other non-Muslim police officers with similar and sometimes worse records to

                                              2
be rearmed. Mahmoud argued that the County Prosecutor, who he acknowledged had the

final say on re-armament decisions, simply “rubber-stamped” the recommendation of the

police department.

       The District Court found these arguments unavailing based on the Prosecutor’s

extensive investigation that included a review of psychiatric evaluations, which contained

red flags regarding Mahmoud’s fitness for duty, which a hearing officer relied on as the

basis for his termination. The District Court further stated that the final rearmament

decision belonged to the Prosecutor, who was not named as a defendant, and that the

individual Defendants were entitled to qualified immunity for their recommendation to

the Prosecutor. Finally, the District Court found Mahmoud’s discrimination charge

unsubstantiated by the record.

       Mahmoud now appeals the District Court’s grant of summary judgment, claiming

1) the District Court incorrectly granted qualified immunity to the City and individual

Defendants; and 2) the District Court erred in failing to conduct a proper McDonnell-

Douglas analysis for his discrimination claim.1

                                      II. Discussion


1
  Mahmoud also brought a collateral estoppel claim, arguing that the administrative
proceedings regarding his rearmament and termination on which the District Court relied
should not have had a preclusive effect because the issue of unlawful discrimination was
not fully and fairly litigated in those proceedings. However, the District Court never held
that Mahmoud was precluded from asserting his claims; only that the extensive a and
administrative proceedings, in which Mahmoud was deemed unfit to be rearmed,
demonstrated that the police department’s decision was objectively reasonable and made
in good faith. Mahmoud was also not precluded from appealing these adverse
administrative rulings pursuant to N.J. Court Rule 2:2-3(a)(1) and (2). Therefore, his
argument is unfounded.
                                             3
       This Court has plenary review over the decision to grant summary judgment.

Intermilo, Inc. v. I.P. Enterprises, Inc., 19 F.3d 890, 892 (3d Cir. 1994). Summary

judgment is appropriate “if the pleadings, depositions, answers to the interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for

summary judgment has the burden of showing that no genuine dispute of material fact

exists. Id. at 323. A moving party may discharge its burden by showing that there is an

absence of evidence to support the non-moving party’s case. Id. at 325. If the moving

party can make such a showing, then the burden shifts to the non-moving party to present

evidence that a genuine factual dispute exists. Id. at 324. In deciding whether a dispute

of material fact exists, the Court must consider all facts and their reasonable inferences in

the light most favorable to the non-moving party. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231,

236 (3d Cir. 1995).

       Mahmoud claims that the District Court incorrectly granted qualified immunity to

the individual Defendants. An analysis of qualified immunity involves two issues: (1)

whether a government official’s conduct violates a constitutional right, and (2) whether

such right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The

contours of a right must be sufficiently clear such that a reasonable official would

understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S.

635, 640 (1987). Municipalities, on the other hand, may be held liable under § 1983 or §

1981 only if a plaintiff demonstrates that (1) an unconstitutional policy or custom (2)

                                              4
attributable to the municipality (3) caused an official to inflict a constitutional injury

upon the plaintiff. Monell v. Dept of Soc. Servs., 436 U.S. 658, 663 (1978).

       Mahmoud contends that he was discriminated against and terminated based on his

national origin, and that the Defendants “caused the Passaic County Prosecutor to refuse

to return” his firearm. Compl. at 4; App. 31. While the facts reveal that Police Chief

Widding did indeed “recommend” that Mahmoud not be rearmed, the record reveals that

his termination resulted from a lengthy investigation, and was ultimately decided by the

Prosecutor, not from any acts of Widding or Walker. The only fact of record regarding

the role that Police Chief Widding’s recommendation may have had is Prosecutor

Wronko’s testimony that such a recommendation is “influential” but not “persuasive.”

App. 89-90. This, together with the details of the extensive review process conducted by

the Prosecutor before making his determination, demonstrate that Mahmoud has not

proven what his complaint alleges, namely, that Widding or Walker “caused” his

termination. Indeed, as the District Court found, Mahmoud’s charge is “simply

unsubstantiated by the record.” Mahmoud v. City of Paterson, No. CIV. 10-5711 DRD,

2014 WL 2155370, at *6 (D.N.J. May 22, 2014); App. 11. Thus, Mahmoud failed to

make out a prima facie case of discrimination, and the adverse employment action was

that of Prosecutor Wronko, not Widding or Walker. To the extent that it could be argued

that the recommendation alone was an adverse action, Mahmoud has not shown that




                                               5
Widding or Walker bore any discriminatory animus2 towards him, or that discrimination

could be inferred based on their treatment of officers “similarly situated.”3

       In the absence of an “adverse action” by the Defendants, a McDonnell-Douglas

burden-shifting analysis was not required by the District Court. Additionally, in the

absence of any constitutional violation—here, not proven—qualified immunity was

properly granted, and there was no need to address the City’s liability.

                                      III. Conclusion

       Mahmoud failed to name the County Prosecutor, the individual who made the

final decision not to rearm him, as defendant in his § 1981 and § 1983 actions. He failed

to demonstrate that any discriminatory animus motivated either the Prosecutor’s or Police

Chief Widding’s decision not to recommend his rearmament. The District Court

2
  Abramson v. William Paterson College of New Jersey, where this Court held that a
recommendation not to give an Orthodox Jewish professor tenure at a university
demonstrated a prima facie case of employment discrimination is distinguishable because
the plaintiff in Abramson provided ample evidence of discrimination laden in the
recommendation that is simply absent here. 260 F.3d 265 (3d Cir. 2001). In Abramson,
the defendant employer complained repeatedly that the plaintiff was unavailable on
Fridays and Saturdays due to Sabbath observation prior to sending the objected-to
recommendation letter. Id. at 279. Here, besides Mahmoud’s general allegation that he
was subjected to racially derogatory remarks, none of which he attributed to Widding or
Walker, with nothing further, fails to demonstrate that Widding or Walker held any racial
animus toward him. Additionally, while Widding may have recommended that other
police officers be rearmed after domestic violence incidents, this alone does not prove
discriminatory intent. Finally, in Abramson, the plaintiff named the correct defendant for
purposes of Title VII and the New Jersey Law Against Discrimination (“NJLAD”). Id. at
267. The same is not true here. Mahmoud has not named the Prosecutor, who made the
final decision not to rearm him, as a defendant in his § 1981 and § 1983 actions.
3
  As the District Court noted, the treatment of other officers is highly “specific and
contextual.” App. 12. Moreover, while Mahmoud’s counsel questioned Wronko at
length regarding the disarming decisions of several other officers, no testimony of
Widding or Walker regarding their undue influence in any of these specific situations has
been presented to us.
                                             6
therefore correctly granted qualified immunity to the individual Defendants, and correctly

denied Mahmoud’s claims as to the City of Paterson for failure to demonstrate a

constitutional violation. As such, we will affirm.




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