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


7-16-2007

Pittman v. McDuffy
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2194




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"Pittman v. McDuffy" (2007). 2007 Decisions. Paper 763.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/763


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                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                NO. 06-2194
                             ________________

                            WILLIAM PITTMAN,
                                       Appellant
                                   vs.

    WILLIAM MCDUFFY; JOHN FRANKLIN; JOSEPH ERNEST; STEVEN
  WILCZNSKY; JOHN PIERRE THERRIEN; ROBIN RENTENBERG, SGT.; JIM
       KEANE, CHIEF; SANDRA HEHN; BOROUGH OF METUCHEN
              ______________________________________

               On Appeal From the United States District Court
                         For the District of New Jersey
                            (D.C. No. 04-cv-04505)
                 District Judge: Honorable William J. Martini
               _______________________________________

                 Submitted Under Third Circuit LAR 34.1(a)
                               July 3, 2007
         Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES

                             (Filed: July 16, 2007)

                         _______________________

                                  OPINION

PER CURIAM.

         The district court issued an order granting summary judgment in favor of




                                       1
appellees, and Pittman filed this timely appeal. We will affirm the district court’s order.1

                                             I.

              On August 21, 1999, Pittman was arrested by Therrien, Ernest, and

Franklin, police officers of the Borough of Metuchen Police Department. The

circumstances of Pittman’s arrest were as follows: After receiving a warning from a

neighbor, a resident at 78 Kempson Place in Metuchen, New Jersey, called the police to

report a prowler in her yard. In response, Therrien was dispatched to the residence. As

Therrien was approaching the residence, he turned onto Peltier Avenue, a block away and

parallel to Kempson Place. According to Pittman, at that time he was walking down

Peltier Avenue when Therrien approached him in his patrol car with the car’s high-beam

lights activated.2 Pittman made a running attempt to get out of the way of, or away from,

the car. After a short foot chase he was apprehended. Therrien then handcuffed Pittman



              1
                We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s
order. “We exercise plenary review over a district court’s decision to grant summary
judgment.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004). Summary
judgment is appropriate when the admissible evidence fails to demonstrate a dispute of
material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
reviewing the record, “a court must view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party’s favor.” Armbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994).


              2
                Appellees maintain that Pittman, who was standing on Peltier Avenue,
began to run when he saw Therrien’s patrol car and not because the car was in any danger
of hitting Pittman. According to appellees, Therrien gave chase and found Pittman hiding
in the bushes of a residence on Peltier Avenue abutting 78 Kempson Place.

                                              2
and placed him in the rear of his patrol vehicle. Therrien drove Pittman to 78 Kempson

Place where Therrien spoke with the neighbor who had made the initial call alerting the

resident of 78 Kempson Place. According to Pittman, the neighbor never positively

identified Pittman as the individual the neighbor had seen at 78 Kempson Place. Pittman

claims that the implication that he was involved was merely based on the fact that both

the suspected prowler and Pittman were black men.

              Pittman was charged with criminal trespass in violation of New Jersey law.

See N.J. Stat. Ann. § 2C:18-3(c). On June 7, 2001, a Grand Jury returned an indictment

of two counts of criminal trespass against Pittman.3 After a bench trial, on October 9,

2002, Pittman was found not guilty on both counts. The trial judge held that the state had

failed to meet its burden of proof.

              Pittman filed the underlying pro se civil rights complaint in the United

States District Court for the District of New Jersey on September 14, 2004, asserting

claims of malicious prosecution, as well as false arrest.4 The appellees moved for

summary judgment seeking a dismissal of Pittman’s complaint with prejudice. Pittman



              3
                The first count of Pittman’s indictment related to another incident
occurring on August 1, 1999. Although some of Pittman’s later filings address this
incident, his complaint focuses exclusively on his August 21, 1999 arrest and subsequent
prosecution.


              4
                Pittman also alleged violations of his First, Ninth, and Fourteenth
Amendment rights. We construe only Pittman’s false arrest and malicious prosecution
claims arising under the Fourth Amendment.

                                             3
cross-moved for summary judgment on December 13, 2005. In an order and letter

opinion, dated March 21, 2006, the district court granted the appellees’ various motions

for summary judgment, denied Pittman’s cross-motion, and dismissed Pittman’s

complaint. Pittman timely appealed.

                                              II.

              An arrest made without probable cause creates a cause of action for false

arrest under 42 U.S.C. § 1983. See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir.

1988). In order “[t]o prove malicious prosecution under section 1983 when the claim is

under the Fourth Amendment, a plaintiff must show that: (1) the defendant initiated a

criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant

initiated the proceeding without probable cause; (4) the defendant acted maliciously or for

a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered

deprivation of liberty consistent with the concept of seizure as a consequence of a legal

proceeding.” Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007) (citing Estate of

Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)). “To prevail on [a malicious

prosecution] claim, [one] must show that the officers lacked probable cause to arrest.”

Wright v. City of Phila., 409 F.3d 595, 603-04 (3d Cir. 2005) (involving § 1983 claims

for both false arrest and malicious prosecution); see also Johnson, 477 F.3d at 82

(declining to apply Wright, and remanding, in a malicious prosecution action where

additional charges beyond the charge for which the claimant was arrested may not have



                                               4
been supported by probable cause). Thus, our determination of whether the district court

was correct in granting summary judgment on both the false arrest and malicious

prosecution claims may rest on whether there was probable cause to arrest Pittman. See

Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998) (“Summary judgment on

Montgomery’s malicious prosecution claim therefore is only appropriate if taking all of

Montgomery’s allegations as true and resolving all inferences in her favor, a reasonable

jury could not find a lack of probable cause for Montgomery’s stop and arrest.”).

                                          III.

              “[P]robable cause to arrest exists when the facts and circumstances within

the arresting officer’s knowledge [at the moment the arrest was made] are sufficient in

themselves to warrant a reasonable person to believe that an offense has been or is being

committed by the person to be arrested.” 5 Estate of Smith, 318 F.3d at 514 (citing Orsatti

v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). We apply a “‘common sense’

approach,” based on the totality of the circumstances, to determine whether there was

probable cause to arrest. Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) (quoting




              5
                The parties do not dispute the district court’s characterization that upon
encountering Pittman, Therrien formally arrested him when he handcuffed him, placed
him in the back of his patrol car, and transported him to 78 Kempson Place for witness
identification. See United States v. Sharpe, 470 U.S. 675, 685-87 (1984); see also Baker
v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995) (“In this case, adding up the use of
guns and handcuffs and, indeed, the length of the detention, shows a very substantial
invasion of the Bakers’ personal security” and thus a formal arrest).


                                             5
Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997)). “[T]he evidentiary standard for

probable cause is significantly lower than the standard which is required for conviction.”

Wright, 409 F.3d at 602 (citing Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)). In

general, “the question of probable cause in a section 1983 damage suit is one for the

jury.” Montgomery, 159 F.3d at 124. A district court, however, may conclude that

probable cause exists as a matter of law and grant summary judgment if the evidence,

when viewed in the light most favorable to the plaintiff, would not reasonably support a

contrary factual finding. See Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).

                Under the totality of the facts and circumstances, even when viewed in the

light most favorable to him, we find that there was probable cause to arrest Pittman. It is

“well established that where police officers reasonably suspect that an individual may be

engaged in criminal activity, and the individual deliberately takes flight when the officers

attempt to stop and question him, the officers generally no longer have mere reasonable

suspicion, but probable cause to arrest.” United States v. Laville, 480 F.3d 187, 195 (3d

Cir. 2007) (quoting United States v. Sharpe, 470 U.S. 675, 705 (1985) (Brennan, J.,

dissenting)).

                Facts indicating wrongdoing on Pittman’s part, prior to his flight, were

plainly present here. First, as evidenced in the record, when Therrien approached the

scene, he was aware of another suspected “Peeping Tom” who had been active in the

town of Metuchen for approximately a year and the description of this individual matched



                                               6
Pittman’s appearance. Second, Pittman was located in extremely close temporal and

geographic proximity to crime reported at 78 Kempson Place. Therrien came upon

Pittman immediately after he was dispatched and, though he was walking on a sidewalk

on Peltier Avenue prior to fleeing from Therrien’s patrol car, Pittman was located in front

of a home with a backyard directly abutting 78 Kempson Place.

              Accordingly, we conclude that the district court was correct in granting

summary judgment to the appellees on Pittman’s false arrest and malicious prosecution

claims on the basis that Pittman’s arrest was supported by probable cause.6 For the

foregoing reasons, we will affirm the district court’s order.




              6
                We note that there was further probable cause to initiate criminal
proceedings against Pittman, under the standard for malicious prosecution, given the
witness identification and grand jury indictment occurring after his initial arrest. See
Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989) (“a grand jury indictment or presentment
constitutes prima facie evidence of probable cause to prosecute, . . . this prima facie
evidence may be rebutted by evidence that the presentment was procured by fraud,
perjury or other corrupt means.”)

                                              7
