                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2003

Noone v. Ocean City
Precedential or Non-Precedential: Non-Precedential

Docket 01-4072




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                                                     NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 01-4072




                     JAMES F. NOONE,
                                 Appellant

                                v.

                THE CITY OF OCEAN CITY;
          OCEAN CITY POLICE DEPARTMENT;
              DEAN SPENCER, SERGEANT;
    JOHN DOE, LAW ENFORCEMENT OFFICERS 1-100,
            jointly, severally and in the alternative;
SCOTT ADAMS, SERGEANT; JOHN WERLEY, LIEUTENANT;
  RYAN WOKOCK, OFFICER; DAVE ROLAND, OFFICER;
  LaROCCA; RICK COSTIGAN, OFFICER; ROBERT COOB;
TOM FINNEGAN, OFFICER; CHAD CALLAGHAN, OFFICER;
   DENNIS JONES, OFFICER; JOHN CAMPO, OFFICER;
  DAVE HALL, OFFICER; BRIAN TROSTLE, PATROLMAN;
     JOHN DOE, LAW ENFORCEMENT OFFICERS 1-86,
             jointly, severally and in the alternative




        On Appeal from the United States District Court
               for the District of New Jersey
            D.C. Civil Action No. 99-cv-01380
                (Honorable Joel A. Pisano)


                 Argued September 20, 2002

     Before: SCIRICA, ALITO and McKEE, Circuit Judges

       (Filed: March 14, 2003                             )
ARTHUR J. MURRAY, ESQUIRE (ARGUED)
Jacobs & Barbone
1125 Pacific Avenue
Atlantic City, New Jersey 08401

       Attorney for Appellant


THOMAS B. REYNOLDS, ESQUIRE (ARGUED)
Reynolds & Drake
29 North Shore Road
P.O. Box 345
Absecon, New Jersey 08201

       Attorney for Appellees,
       City of Ocean City, Ocean City Police Department,
       Sergeant Dean Spencer, Patrolman Brian Trostle,
       Patrolman Bruce Warren


DAVID S. DeWEESE, ESQUIRE (ARGUED)
Stagliano & DeWeese
3200 Pacific Avenue
Wildwood, New Jersey 08260

       Attorney for Appellees,
       Sergeant Scott Adams, Lieutenant John Werley,
       Officer Ryan Wokock, Officer Dave Roland,
       Officer LaRocca, Officer Rick Costigan,
       Officer Robert Coob, Officer Tom Finnegan,
       Officer Chad Callaghan, Officer Dennis Jones,
       Officer John Campo, Officer Dave Hall




                                  OPINION OF THE COURT


SCIRICA, Circuit Judge.




                                               2
        In this action under 42 U.S.C. § 1983, plaintiff appeals the grant of summary judgment

in favor of defendant.

                                                     I.

        This case involves two separate incidents that took place in Ocean City, New Jersey, at

the 2004 Glenwood Drive residence of plaintiff Dr. James F. Noone Jr. ("Noone").                On the

night of May 10, 1997, Noone’s son, James F. Noone, III (Noone III"), held a party at his

father's residence.      Sergeant Dean Spencer of the Ocean City Police Department showed up

to investigate a stolen vehicle and a drunken driving incident.           Spencer attempted to question

Noone III, who allegedly refused to provide information, including his name, date of birth, and

address. As a result, Spencer issued a summons charging Noone III with obstruction of justice,

a disorderly persons offense. N.J. Stat. Ann. § 2C:29. The summons named “James Noone”

but did not include a date of birth or social security number.

        Noone III did not respond to the summons.                A municipal court issued a warrant for

“James Noone” on July 9, 1997, and forwarded it to the Police Department, where it was

entered into a computer system.              The computer identified plaintiff Noone, the father.

Consequently, the warrant issued for Noone rather than Noone III.                 Patrol Officers Bruce

Warren and Brian Trostle served the warrant on July 19, 1997. Noone explained that he was

not in Ocean City on May 10, 1997, that he never received a copy of the summons and

complaint, and that the warrant was a mistake.1           Furthermore, because he was expecting 150


   1
    Although Noone asserted that Warren and Trostle had the wrong person, there was no
                                                                                    (continued...)

                                                     3
guests in the next half hour, he requested that the matter be resolved at a later date. Warren and

Trostle refused Noone's request and arrested him under the warrant.         Noone was detained in

the Police Department for one hour before posting bail in the amount of $175.00.            T h e

following year, on the night of July 25, 1998, Noone held his annual “Night in Venice” party

where officers of the Community Policing Unit witnessed underage drinking and reported

noise ordinance violations.   In response, Defendants Robert Scott Adams, Johnathan Wereley,

Ryan Wokock, David Rowland,2 Daniel LaRocca, Rick Costigan, Robert Koob,3 Tom Finnegan,

and Dennis Jones (collectively, “Individual Defendants”) reported to Noone’s residence.

Based on their own observations, Individual Defendants entered Noone's property, including

his patio and house, where they remained for 15-30 minutes.              The officers had neither a

warrant nor Noone's permission to gain entry.

       Despite seeing what they believed to be underage drinking, Individual Defendants issued

no summons or citations while on Noone's property. But later on during the course of the

evening, ten to fifteen people associated with Noone's party were arrested for underage

drinking. Noone was neither arrested nor issued a summons or citation.

       On March 26, 1999, Noone filed a complaint against Ocean City and the Police

Department (“Municipal Defendants”) and against Sergeant Spencer and 100 “John Doe” police


   1
    (...continued)
reference to Noone's son during Noone's discussion with Warren and Trostle.
   2
     The caption spells Officer Rowland’s name as “Roland.” His interrogatory answers use
the “Rowland” spelling.
   3
    The caption spells Officer Koob’s name as “Coob.”

                                                  4
officers.   Soon after, Noone filed an amended complaint, adding the remaining defendants.4

He alleged, inter alia, that he was entitled to relief for violation of his Fourth Amendment

rights under 42 U.S.C. § 1983.           Ocean City, the Police Department, Spencer, Trostle, and

Warren filed a joint motion for summary judgment.          The remaining defendants filed separate

joint motions for summary judgment.         The District Court Judge granted summary judgment to

all defendants. This appeal followed.5

                                                   II.

         Our review of the entry of summary judgment is plenary.        See, e.g., Beers-Capitol v.

Whetzel, 256 F.3d 120, 130 n.6 (3d Cir. 2001).           We apply the same test the District Court

should have used initially.   Omnipoint Communications Enter., L.P. v. Newton Township, 219

F.3d 240, 242 (3d Cir. 2000).            Summary judgment is appropriate if there is no issue of

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c).




   4
   Three officers of the Police Department, Dave Hall, John Campo, and Chad Callaghan,
were also added as defendants in the Amended Complaint, but subsequently dismissed with
Noone's consent. Noone does not challenge this determination on appeal.
   5
    The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1334, with
supplemental jurisdiction over state law claims. We have jurisdiction under 28 U.S.C. §
1291.

                                                   5
                                           III. 1997 Incident

        Under § 1983, a plaintiff must prove a person acting under color of state law

deprived him of a federal right. See Berg v. County of Allegheny, 219 F.3d 261, 268 (3d

Cir. 2000). Government officials performing discretionary functions are generally not

liable for civil damages under § 1983 by reason of granted qualified immunity. Wilson v.

Layne, 526 U.S. 603, 609 (1999). In determining qualified immunity, a court must first ask

whether “the facts alleged, viewed in the light most favorable to the party asserting the

injury, show that the officer's conduct violated a constitutional right.” Curley v. Klem, 298

F.3d 271, 277 (3d Cir. 2002). If answered affirmatively, the question becomes whether it

“would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Id. (citing Layne, 526 U.S. 603).

        As noted, Noone alleges his arrest violated the Fourth Amendment. An arrest

violates the Fourth Amendment if executed pursuant to an erroneously issued warrant.

Berg, 219 F.3d at 269-71 (citing Whitley v. Warden, 401 U.S. 560 (1971)).6 Here, a

warrant for Noone was generated after a computer retrieved the wrong “James Noone” out




   6
     In Berg, a warrant for “Berg” was generated after a clerk mistakenly entered the
criminal complaint number of “Banks,” the person whose arrest was actually sought. 219
F.3d at 266. Consequently, Berg was mistakenly arrested for Banks's alleged misdeed. Id.
at 267-68. As a result of his mistaken arrest, Berg brought suit, pursuant to § 1983, against
the county and various state officials alleging, inter alia, violation of the Fourth
Amendment. Id. at 268. The district court concluded there was no Fourth Amendment
violation because the erroneously issued warrant supplied probable cause to arrest. Id. We
disagreed and held that an improperly issued warrant cannot provide probable cause for an
arrest. Id.

                                                     6
of the Police Department record system. Noone's arrest violated his Fourth Amendment

rights because it was executed pursuant to an erroneously issued warrant.

A.      Defendants Warren, Trostle, and Spencer

        The District Court granted Warren and Trostle qualified immunity, holding that a

reasonable police officer, under these circumstances, would believe there was probable

cause for Noone's arrest. Where an officer executes an arrest based on an objectively

reasonable belief that there is a valid warrant, he may be entitled to qualified immunity.

Berg, 219 F.3d at 272. It is usually reasonable for an officer to believe a warrant was

issued for probable cause. Id. Furthermore, an arresting officer is not required to make an

independent investigation for every suspect who claims innocence, provided the officer's

reliance on an arrest warrant is reasonable in light of the relevant circumstances. Id. at

272-73.

        Noone was arrested based on a warrant containing his name and date of birth.

Although Noone proclaimed his innocence, it was not unreasonable for Warren and Trostle

to conclude that Noone was the proper individual sought. Furthermore, because the warrant

was issued for failure to appear in court, it was not unreasonable for the officers to refuse

Noone's request to resolve the matter at a later date. For these reasons, we will affirm the

grant of summary judgment with respect to Warren and Trostle.

        With respect to defendant Spencer, Noone contends there was a genuine issue of

material fact whether Spencer was liable under § 1983 on the basis of deliberate

indifference. In Berg, we left open the question whether liability under these

                                                     7
circumstances should be analyzed as a Fourth Amendment violation or as due process

“deliberate indifference.”7 219 F.3d at 274. We need not resolve that here because under

either theory, Spencer is entitled to summary judgment.

        As for a possible Fourth Amendment violation, the District Court held: “[T]here is

no evidence before the Court that Spencer intentionally caused the arrest of plaintiff.

Indeed, the warrant for plaintiff’s arrest was issued by the municipal court for failure to

appear before the municipal court judge. There is no evidence which implicates Spencer in

this decision.” We agree.8 There can be no § 1983 liability here under the Fourth

Amendment.

        Under a due process theory, the District Court held:

   7
   In Berg we said:
       Where a defendant does not intentionally cause the plaintiff to be seized, but
       is nonetheless responsible for the seizure, it may be that a due process
       “deliberate indifference” rather than a Fourth Amendment analysis is
       appropriate. . . . We need not decide that here, however, because Berg has not
       alleged anything more than mere negligence on Demko’s part.
219 F.3d at 274.
   8
     In his deposition, Spencer stated that he did not fill in a date of birth or social security
number because Noone III “gave [him] no information.” He “attempted to contact the court
on at least two prior occasions to let them know there was confusion between a James
Noone, the father, and a James Noone, the son.” When asked why he did not try to identify
more specifically the James Noone to which he was referring, Spencer said, “The system is
not set up to do that and I tried to get that rectified with the court.” When asked if he could
have done more, Spencer said, “Yes, I’m sure I could have, but I don’t normally do that
because I was a shift commander.” He did not assign to one of his subordinate officers the
task of tracking down more information because Noone III “was totally uncooperative at
that time. There was nothing to indicate to me [Spencer] that he would be more cooperative
at another time.” Spencer did not run a DMV check on James Noone using the address he
had because he was not capable of doing that for a Pennsylvania license.


                                                     8
        There were no reasonably available measures to reduce or eliminate a serious
        risk which Spencer could have taken in this case. Indeed, the entire incident
        could have been avoided in its entirety i[f] plaintiff’s son [had] provided a
        modicum of cooperation with Spencer during the stolen car investigation.
        Spencer did not arrest plaintiff; and there is no evidence of deliberate
        indifference on the part of Spencer. Accordingly, there can be no liability.

        Knowing of two people by the name “James Noone” on the date the summons issued

and aware of potential confusion, Spencer “attempted to contact the court on at least two

prior occasions to let them know there was confusion between a James Noone, the father,

and James Noone, the son.” The reason the summons lacked a date of birth, social security

number, and proper address was “because Mr. Noone didn’t give it to me [Spencer] and

that’s why he was charged with obstructing justice.” Spencer also testified that the reason

he did not have the information was “because he [Noone III] was totally uncooperative at

that time. There was nothing to indicate to me [Spencer] that he would be more cooperative

at another time.”

        In hindsight, it is possible that Spencer could have done more at a later time to try to

ascertain the correct date of birth, social security number, and address. But the failure to

do so would merely amount to negligence, not deliberate indifference. Therefore, under

either a Fourth Amendment or due process claim, Spencer was entitled to summary

judgment.

B.      Municipal Defendants

        A municipal unit may be sued for damages under § 1983 for its employee’s

unconstitutional action if the “action that is alleged to be unconstitutional implements or



                                                      9
executes a policy statement, ordinance, regulation, or decision officially adopted and

promulgated by that body's officers.” Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690

(1978). There can be liability only if: (1) plaintiff's rights were violated by a policy or

custom of the municipality, and (2) the municipality's deliberate indifference was the

moving force behind plaintiff's alleged injury. See Berg, 219 F.3d at 275-76. Failure to

properly train an employee will be considered deliberate indifference only where that

failure causes a pattern of violations. Id. at 276.

        In Berg, we reversed a grant of summary judgement in favor of a municipality so that

the factfinder could address whether the municipality acted with deliberate indifference.

Id. at 277. Specifically, we found the record lacked evidence of procedures guarding

against mistakenly issued warrants where the municipality “employed a design where the

slip of a finger could result in wrongful arrest and imprisonment.” Id. at 267, 277. We

concluded that the municipality failed to provide protective measures and failsafes against

erroneously issued warrants and said, “When such a simple mistake can so obviously lead to

a constitutional violation, we cannot hold that the municipality was not deliberately

indifferent to the risk as a matter of law.” Id.

        Unlike Berg, Municipal Defendants here did not employ a design where “the slip of

the finger could result in wrongful arrest and imprisonment.” No reasonable safeguards

have been identified that Municipal Defendants could have instituted to protect against the

type of error that occurred here. The form of summons provided for a defendant’s name,

address, social security number, and date of birth. This was not a situation “where such a

                                                      10
simple mistake [could] so easily lead to a constitutional violation.” Thus, we find no basis

upon which to hold Municipal Defendants liable. We will affirm the grant of summary

judgment.

                                             IV. 1998 Incident

        Noone challenges the District Court’s finding of qualified immunity with respect to

Individual Defendants and lack of liability with respect to Municipal Defendants for their

roles in the 1998 Incident.

A.      Individual Defendants

        The District Court found Individual Defendants entitled to qualified immunity

without identifying whether a constitutional violation occurred. But qualified immunity

analysis begins with determining whether there was a constitutional violation. Curley, 298

F.3d at 277 (citing Layne, 526 U.S. 603). Our independent review of the record reveals no

violation. Therefore, we do not reach qualified immunity and will affirm the grant of

summary judgment on Noone’s § 1983 claims with respect to Individual Defendants.

        Under the Fourth Amendment, a warrantless entry into a private home is

“presumptively unreasonable.” United States v. Rohrig, 98 F.3d 1506, 1514 (6th Cir.

1996) (citing Payton v. New York, 445 U.S. 573, 586 (1980)). “Exigent circumstances,”

however, may justify a warrantless entry into a home if the governmental interest outweighs

the private individual's interest in remaining free from governmental intrusions. Rohrig, 98

F.3d at 1522. For example, in Rohrig, the Sixth Circuit found exigent circumstances

justified police officers' warrantless entry into plaintiff's home in response to a noise

                                                      11
ordinance complaint. Id. at 1523. The court said there was no Fourth Amendment violation

because the governmental interest in immediately abating an ongoing nuisance by quelling

loud and disruptive noise in a residential neighborhood justified the warrantless intrusion.

Id. at 1522.

        Like Rohrig, the record here shows exigent circumstances justified a warrantless

entry into Noone's property during the 1998 Incident. Individual Defendants observed what

they believed to be underage drinking and violation of a noise ordinance. The governmental

interest in abating these illegal activities justified warrantless entry into Noone’s property.

Accordingly, summary judgment for Individual Defendants was proper.

B.      Municipal Defendants

        A municipality may be liable for the unconstitutional actions of its officials only

where a plaintiff’s rights were violated by a policy or custom of the municipality. Monell,

436 U.S. at 690-91. We recently articulated guiding principles for deciding whether an

official's act permits an inference of government policy:

        First, . . . municipalities may be held liable under § 1983 only for acts for
        which the municipality itself is actually responsible, “that is, acts which the
        municipality has officially sanctioned or ordered.” Second, only those
        municipal officials who have “final policymaking authority” may by their
        actions subject the government to § 1983 liability. Third, whether a particular
        official has “final policymaking authority” is a question of state law. Fourth,
        the challenged action must have been taken pursuant to a policy adopted by the
        official or officials responsible under state law for making policy in that area
        of the city's business.

Nawrocki v. Township of Coolbaugh, 34 Fed. Appx. 832, 837 (3d Cir. 2002) (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)) (other citations omitted).

                                                      12
        In Nawrocki, a plaintiff appealed a grant of summary judgment in favor of a township

on § 1983 claims for due process violations based on, inter alia, malicious prosecution.

34 Fed. Appx. at 834, 836. We affirmed. Id. at 839. In that case, the plaintiff argued that

an unconstitutional government policy could be inferred from a government official's

isolated act. Id. at 836-37. We held that “[a]lthough there may have been some

inadequacies in the way in which municipal policies were followed . . . an official's failure

to adhere strictly to municipal policies does not itself support an inference of a policy that

can subject the Township to liability.” Id. at 837. Thus, we held that the plaintiff failed to

establish liability under § 1983. Id.

        Here, Noone asserts that the police officers were police department policymakers

whose actions constituted municipal policy, even though they occurred only once. Thus,

Noone argues that Municipal Defendants are liable for the police officers’ action. We

disagree. As we stated in Nawrocki, where an official fails to adhere strictly to municipal

policies, we will not infer that a policy exists to subject the municipality to liability under §

1983. The police officers’ actions in the 1998 Incident were part of an isolated incident

that was neither officially sanctioned nor ordered by Municipal Defendants. Thus, we will

affirm the grant of summary judgment.

                                                       V.

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




                                                      13
TO THE CLERK:

          Please file the foregoing opinion.




                                               /s/ Anthony J. Scirica
                                                        Circuit Judge
