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


11-6-2006

Only v. Cyr
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1086




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 06-1086


                                    WARREN ONLY,
                                        Appellant

                                              v.

           OFFICER MARK CYR, #44, individually; OFFICER JOHN DOE,
                    (a fictitious named police officer), individually;
             NEW JERSEY INSTITUTE OF TECHNOLOGY, (a public
              research university); JIM ROBERTSON, Assistant Library
             Director, individually, jointly, severally, and in thealternative

                     On appeal From the United States District Court
                             For the District of New Jersey
                             (D.N.J. Civ. No. 02-cv-03176)
                       District Judge: Honorable Jose L. Linares


                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 2, 2006

            BEFORE: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES

                                (Filed: November 6, 2006)


                                         OPINION


PER CURIAM

       Warren Only filed this civil rights action pro se in the United States District Court

for the District of New Jersey alleging that Defendants, police officers and an assistant
librarian at the New Jersey Institute of Technology (“NJIT”), deprived him of his

constitutional rights. Only claims that while he was using NJIT’s library, he was falsely

accused of stealing computer equipment and subjected to an unreasonable search and

seizure, in violation of his Fourth Amendment rights under 42 U.S.C. § 1983. Only also

claims that the actions of Defendants Cyr and the NJIT police were part of a conspiracy to

deprive him of his constitutional rights on the basis of his race (African-American), in

violation of 42 U.S.C. § 1985(3), that Defendant Robertson violated 42 U.S.C. § 1986 by

negligently failing to prevent Cyr and NJIT’s conspiratorial acts, and that Robertson

violated 42 U.S.C. § 1981. Only’s complaint also included various state law tort claims,

including harassment and emotional distress.

       Defendants answered the complaint and filed cross claims for contribution and

indemnification.1 After the parties conducted discovery, Defendants filed motions for

summary judgment. According to Defendants, Robertson, an assistant librarian, called

the NJIT security department to report a possible theft of the library’s front desk stapler.

NJIT police officers Cyr and Green were dispatched to the library and when they arrived,

Robertson identified Only as the person suspected by a front desk worker of having taken

the stapler. Cyr and Green then approached Only and asked him if he would be willing to

answer some questions in the lobby area. Only agreed. While Cyr was talking with

Only, Green asked Only if he could look in his bag. After Only agreed, Green searched



       1
       Cyr and NJIT jointly answered the complaint and moved for summary judgment.
Robertson filed a separate answer and summary judgment motion.

                                              2
the bag and did not find the stapler. Only then left the building.

       In an order entered on December 12, 2005, the District Court granted summary

judgment in favor of all Defendants on the constitutional claims and declined to exercise

supplemental jurisdiction over the state law claims. Only timely appealed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s

grant of summary judgment de novo, viewing the underlying facts and all reasonable

inferences therefrom in the light most favorable to the party opposing the motion.

Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 235 (3d Cir. 1995). Summary

judgment is appropriate when 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.” Fed. R. Civ. P. 56(c).

       In order to state a claim under 42 U.S.C. § 1983, Only must show both that he was

deprived of a right, privilege, or immunity secured by the Constitution or laws of the

United States and that the conduct complained of was committed by a person acting under

color of state law. See Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).

As the District Court observed, an analysis of Only’s § 1983 claims must begin with the

identification of the specific constitutional rights infringed. See Gibson v. Superintendent

of New Jersey, 411 F.3d 427, 433 (3d Cir. 2005) (internal citation omitted). The District

Court held that Only failed to demonstrate the existence of a genuine issue of material

fact with respect to any of his constitutional claims and that, therefore, his § 1983 claims

against Officer Cyr necessarily failed. The District Court also held that the § 1983 claims

                                              3
against NJIT failed because Only had presented no evidence that NJIT had a policy or

custom to deprive him of his constitutional rights. After reviewing the record, we agree

with the District Court and hold that Only’s § 1983 claims were properly dismissed on

summary judgment.2

       Only asserts that Officers Cyr and Green violated his Fourth Amendment right to

be free from unreasonable searches and seizures when they approached and questioned

him and then searched his bag.3 As the District Court observed, Only admitted in his

brief opposing summary judgment that he consented to Green’s search of his bag. See

Dist. Ct. Op. at 8. Only argues that his consent was invalid because Cyr failed to inform

him that he had the right to refuse the search. We find this argument meritless, as there is

no such requirement. See United States v. Mendenhall, 446 U.S. 544, 555-56 (1980);

United States v. Kim, 27 F.3d 947, 954 (3d Cir. 1994). We agree with the District Court

that Only’s consent was valid, as the evidence in the record indicates that the entire

investigation lasted only seven minutes, the questioning took place in public, and Only

was neither threatened nor intimidated into giving consent. See United States v. Chaidez,

906 F.2d 377, 381 (8th Cir. 1990). Given the validity of Only’s consent, the District Court

properly concluded that a jury could not find that the search of Only’s bag violated the

       2
       The District Court’s dismissal included all claims asserted against “John Doe,” a
named Defendant in the complaint whom the District Court surmised Only intended to
represent Officer Green.
       3
       Although Only asserts that he was accused of stealing computer equipment,
Defendants aver that the item reported missing was a stapler. Only contends that
Defendants fabricated this “stapler bit” after realizing how far-fetched it would be to
accuse him of putting a computer in his briefcase. This discrepancy, while curious, is not
material to our analysis.

                                              4
Fourth Amendment.4 See Kerns v. Chalfont-New Britain Tp. Joint Sewage Authority,

263 F.3d 61, 65 (3d Cir. 2001) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973)).

       Similarly, none of Only’s factual allegations support a finding that he was “seized”

in violation of the Fourth Amendment when Cyr and Green approached and questioned

him. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (A seizure does not occur every

time a police officer approaches someone to ask a few questions.) See also Mendenhall,

446 U.S. at 554-555 (holding that “a person has been ‘seized’ within the meaning of the

Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.”) Cyr avers, and

Only does not dispute, that after Green conducted the brief search of the bag, Only

walked out of the library without responding to Cyr’s request for his name. See Cyr

Affidavit ¶ 8. As Only obviously did not feel coerced or threatened into either remaining

in the library or responding to Cyr’s question, we are unpersuaded by any argument that

he felt threatened earlier. Even assuming, arguendo, that Only was subjected to a

“seizure” in the form of an “investigatory stop” under Terry v. Ohio, 392 U.S. 1 (1968),

when he was questioned, such a stop was not unreasonable under the Fourth Amendment.


       4
        We note that, contrary to the District Court’s statement, Only’s complaint did
allege that his person was searched in addition to his briefcase. See Complaint ¶ 12.
However, both Cyr and Green averred that they did not physically search Only. See Cyr
Affidavit ¶ 10; Green Affidavit ¶ 9. As Only neither responded to Defendants’ affidavits
with an affidavit of his own setting forth specific facts to counter Defendants’ averments,
nor provided a reason why he could not present such an affidavit, he has not demonstrated
the existence of a genuine issue of material fact for trial. See Fed. R. Civ. P. 56(e), (f);
Fireman’s Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).

                                             5
Cyr and Green were acting on information received from Robertson, which suffices as

“reasonable suspicion” required for a stop under Terry. See Johnson v. Campbell, 332

F.3d 199, 206 (3d Cir. 2003) (officers may rely on a trustworthy second-hand report and

need not base an investigatory stop on their own personal observation) (citing Adams v.

Williams, 407 U.S. 143, 147 (1972)).

       Only’s remaining § 1983 claims assert violations of his First and Fourteenth

Amendment rights. The District Court properly dismissed these claims, as Defendants’

actions in investigating a possible theft did not interfere with Only’s First Amendment

right to “peacefully assemble,” and a Fourteenth Amendment “right to privacy” claim is

not applicable to the facts of this case. To the extent Only seeks to invoke the privacy

right implied by Fourth Amendment protections, see Gillard v. Schmidt, 579 F.2d 825,

828 (3d Cir. 1978), we concur with the District Court that he is precluded from doing so

by the invalidity of his Fourth Amendment claim.

       As Only failed to provide any evidence of a conspiracy among Defendants to

deprive him of his constitutional rights, the District Court properly granted summary

judgment in favor of Defendants for the claims arising under §§ 1985(3) and 1986. In

addition, as the record contains no evidence of intentional discrimination, we agree with

the District Court’s dismissal of Only’s § 1981 claim against Robertson. Finally, we find

no abuse of discretion in the District Court’s decision not to exercise supplemental

jurisdiction over Only’s state law claims. We have considered Only’s additional

allegations of error and find them to be without merit and not worthy of further

discussion. For the foregoing reasons, we will affirm the judgment of the District Court.

                                             6
