                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 08-4145
                                    _____________

                              CHRISTOPHER MORRIS,
                                           Appellant,
                                       v.

                    ATTORNEY GENERAL, Peter Verniero;
              GLYNN MOORE, Trooper; MARC STEPHENS, Trooper;
             FIRST ASSISTANT ATTORNEY GENERAL, Paul Zoubek;
              SUPERINTENDENT OF NEW JERSEY STATE POLICE,
                           Col. Carl A. Williams

                                    _____________

                    On Appeal from the United States District Court
                              For the District of New Jersey
                                (D.C. No. 3:03-cv-1001)
                     District Judge: Honorable Anne E. Thompson
                                     _____________

                            Argued on November 15, 2011

  BEFORE: FUENTES and CHAGARES, Circuit Judges, and RESTANI, International
                           Trade Judge

                          (Opinion Filed: December 6, 2011)


Thomas Bruno        (ARGUED)
Abramson & Denenberg, P.C.
1315 Walnut Street, 12th Floor
Philadelphia, PA 19107

 Honorable Jane A. Restani, International Trade Judge of the United States Court of
International Trade, sitting by designation.


                                           1
       Attorney for Appellant

John C. Connell
John P. Kahn
Maureen T. Coghlan
Archer & Greiner, P.C.
One Centennial Square
Haddonfield, New Jersey 08033

Mary E. Wood         (ARGUED)
Office of the Attorney General of New Jersey
P.O. Box 112
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

       Attorneys for Appellees

                                     _____________

                                 OPINION OF THE COURT
                                     _____________


FUENTES, Circuit Judge.

       Christopher Morris appeals from the District Court‟s grant of summary judgment

to the Appellees on his malicious prosecution and selective prosecution claims. While he

recognizes that, in order to bring a malicious prosecution claim, he must show that his

criminal case was “favorably terminated,” he argues that the District Court held him to

too high of a standard in resolving this question. Morris also argues that he put forward

sufficient evidence from which a jury could infer that he had been selectively prosecuted.




                                             2
For the reasons expressed below, we will affirm the District Court‟s grant of summary

judgment to the Appellees.1

                                                 I.

       Because we write primarily for the benefit of the parties, we set forth only the

facts and history that are relevant to our conclusion. On June 1, 1997, Christopher

Morris, an African American male, was stopped by two New Jersey State Troopers,

Glynn Moore and Marc Stephens, on the New Jersey Turnpike. The Troopers testified

that they stopped Morris because he was speeding. Moreover, because Morris‟ car had

tinted windows, the Troopers say that it was not until the car came to a stop that they

were able to observe that Morris and his passenger, Andre London, were African

American. The Troopers testified that they became suspicious because Morris and

London made furtive movements and appeared nervous, among other reasons.

According to the Troopers, Morris and London were subjected to Terry pat down

searches, and were each discovered to be carrying a large, duct-taped package of

cocaine. Morris now disputes this version of events, and instead alleges that the Troopers

searched him three times and found nothing. It is his claim that the Troopers planted the

cocaine on him, and he insists that he had no contraband on his person or in his car,

except for a small amount of marijuana.

       Morris was charged with possession with intent to distribute a Controlled

Dangerous Substance. He filed a Motion to Suppress the cocaine on the ground that the

1
 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and
original jurisdiction pursuant to 28 U.S.C. § 1343. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291.

                                             3
pat-down search was illegal and the contraband was illegally seized. He did not, at that

time, raise a claim that the cocaine had been planted on him by the Troopers. His motion

was denied.

       Morris‟ arrest and criminal prosecution came at a time when the New Jersey State

Police were under scrutiny for using racial profiling in their traffic stops. In 1999, the

New Jersey Attorney General‟s office published an interim report following an

investigation into the racial profiling allegations. The Attorney General concluded that

the State Police did not have an official policy of racial profiling, but he nevertheless

found widespread de facto discrimination by officers who racially profiled motorists on

the Turnpike. Morris filed a Motion for Reconsideration of the suppression issue based

on this report, but this motion was also denied. Finally, Morris filed a Motion to Reopen

the Discovery based on newly discovered evidence of racial profiling. This motion was

denied, and Morris‟ criminal case went to trial. His first trial was declared a mistrial,

however, after jurors were found discussing the matter during lunch.

       During jury selection for Morris‟ second trial, the judge became aware of three

Appellate Division decisions that had been issued concerning discovery in cases

allegedly involving racial profiling. The trial judge thus granted Morris‟ Motion to

Reopen Discovery. Morris‟ case was referred to a special proceeding to determine

whether pending criminal cases such as his could go forward. On February 26, 2001, the

Attorney General moved to dismiss 76 pre-trial cases being reviewed, including Morris‟,

because it was too difficult to “„discern which cases involve[d] intentional targeting of

minorities when other drug courier profile-related factors existed to justify the


                                              4
stop.‟” Morris v. Verniero, No. 03-1001, 2008 WL 4330179 at *3 (D.N.J. Sept. 17,

2008). Morris‟ indictment was dismissed on March 23, 2001.

          On March 7, 2003, Morris filed this civil rights action against several defendants,

including Troopers Moore and Stephens, Attorney General Peter Verniero, First Assistant

Attorney General Paul Zoubeck, and Colonel Carl Williams. He alleged claims arising

under 42 U.S.C. § 1983 for malicious prosecution and selective prosecution. The

Appellees filed a Motion for Summary Judgment on statute of limitations grounds, but

District Judge Thompson denied this motion. The Appellees then filed a Second Motion

for Summary Judgment, addressing the substantive issues in the case. Judge Thompson

granted this motion and dismissed the case.

          This notice of appeal followed.

                                               II.


          We exercise plenary review over the District Court‟s grant of summary judgment.

          Summary judgment may be granted if, drawing all inferences in favor of
          the nonmoving party, “the pleadings, depositions, answers to
          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 a judgment as a matter of law.”

Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995) (quoting Fed. R. Civ. P.

56(c)).

   A. Malicious Prosecution

          To prove malicious prosecution a plaintiff must show, among other things, that

that “the defendants initiated a criminal proceeding” and that this “criminal proceeding



                                                5
ended in the plaintiff‟s favor.” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)

(quoting Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)). As we have

noted, the favorable termination requirement serves “to avoid „the possibility of the

claimant succeeding in the tort action after having been convicted in the underlying

criminal prosecution, in contravention of a strong judicial policy against the creation of

two conflicting resolutions arising out of the same or identical transaction.‟” Id. at 187

(quoting Heck v. Humphrey, 512 U.S. 477 (1994)). In keeping with this purpose, “we

have held that a prior criminal case must have been disposed of in a way that indicates

the innocence of the accused in order to satisfy the favorable termination element.” Id.

While Morris is correct that “[a]ctual innocence is not required for a common law

favorable termination,” Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996), the termination

must at least be indicative of Morris‟ innocence.

       As we have stated, “[a] plaintiff may attempt to indicate his innocence by

demonstrating that his prior criminal proceeding terminated . . . [due to] the formal

abandonment of the proceedings by the public prosecutor . . . .” Kossler 564 F.3d at 187.

Morris argues that the Attorney General formally abandoned his case, thereby indicating

his innocence of the crimes charged. However, we do not consider all administrative

decisions to abandon prosecutions to be favorable terminations. See, e.g., Donahue v.

Gavin, 280 F.3d 371 (3d Cir. 2002) (holding that a prosecutor‟s decision to dismiss a case

in the interest of judicial economy did not constitute a favorable termination).

       In Morris‟ case, we cannot say that the dismissal of his case constituted a

favorable termination because it was not indicative of his innocence of the crimes


                                             6
charged. The Attorney General clearly stated that he did not dismiss Morris‟ indictment

because he thought Morris was innocent. On the contrary, in his public announcement

regarding the dismissal, the then-Attorney General said, “„let‟s be clear; the defendants in

these cases may have prevailed in their motions to suppress, but they are criminals

nonetheless. All were carrying some form of contraband for distribution in communities

in this and other states.‟” Appellees‟ Br. 16.

       Nor can we say that Morris‟ assertion that the cocaine was planted on him creates

a genuine issue of material fact as to whether his case was favorably terminated. There

are many reasons to discredit Morris‟ assertion, first raised almost six years after his

initial arrest, that he did not possess the cocaine.2 Among these are the fact that the state

court judge who heard testimony pursuant to Morris‟ suppression motion found Trooper

Moore to be “truthful, trustworthy, persuasive and detailed” and saw “no reason to doubt

his testimony” that he and his partner recovered cocaine from Morris‟ person. R. 521.

We have noted that, “if the nonmoving party‟s evidence, when viewed in the context of

all of the evidence, could not be credited by a rational juror, summary judgment may be

granted.” U.S. v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir. 1993). Because no

rational juror could have credited Morris‟ belated assertion that the drugs were planted,

the District Court properly granted summary judgment to the Appellees.


2
  Morris‟ counsel submitted a letter to this Court after oral argument in which he stated
that Morris actually did raise his claim that the drugs were planted on him during his
criminal trial. Specifically, counsel pointed us to two questions that defense counsel
asked at trial during her cross examination of Trooper Moore. However, these two
isolated questions are insufficient to show that Morris raised a claim that the drugs were
planted on him at that time.

                                                 7
   B. Selective Prosecution

       “A decision to prosecute is selective and violates the right to equal protection

when it is made on a discriminatory basis with an improper motive.” United States v.

Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989). To establish a claim of selective

prosecution, a plaintiff must, among other things, “provide evidence that persons

similarly situated have not been prosecuted.” Id. Morris actually “acknowledges in this

case that he did not produce evidence to „show that similarly situated individuals of a

different race were not prosecuted.‟” Appellant‟s Br. 48. However, he believes that his

claim should succeed nonetheless because he “produced ample statistical evidence of

bias.” Id.

       The District Court properly concluded that this evidence was unavailing. Judge

Thompson noted that the statistical evidence, “at best, establish[es] that the New Jersey

State Police maintained a de facto policy of racial profiling in the course of effecting

traffic stops.” Morris v. Verniero, No. 03-1001, 2008 U.S. Dist. LEXIS 71187 at *16

(D.N.J. Sept. 12, 2008). She added that the statistical evidence did not “provide insight

as to whether similarly situated suspects of a different race than [Morris] were prosecuted

when violations of the drug laws were found.” Id. Morris‟ selective prosecution claim

fails because he did not prove this necessary element.

                                             III.

       For the reasons stated above, we will affirm the District Court‟s grant of summary

judgment to the Appellees.




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