                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2008

Hernandez v. Cty of Union Cty
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2367




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                                                     NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                           No. 06-2367




                   CLEMENTE HERNANDEZ,
                                   Appellant
                             v.

           CITY OF UNION CITY; DEPT OF POLICE
               OF THE CITY OF UNION CITY;
      JOSE RODRIGUEZ, Detective; CARLOS SEGARRA;
         OMAR HERNANDEZ; MENDEZ; LORENTE;
  MARK A. JULVIE, Sargent; DENNIS KOHREHERR, Lieutenant;
            JOHN DOE, 1 through 50 being fictitious
         name for one or more Police Officers, Peter Doe,
    1 through 50 being fictitious name designating one or more
                  officials of City of Union City




          On Appeal from the United States District Court
                    for the District of New Jersey
                       (D.C. No. 04-cv-01935)
          District Judge: Honorable Dennis M. Cavanaugh




            Submitted Under Third Circuit LAR 34.1(a)
                       February 11, 2008

   Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges

                    (Filed: February 12, 2008)
                               ____

                            OPINION
SLOVITER, Circuit Judge.

       Clemente Hernandez (“Appellant”) appeals the District Court’s grant of summary

judgment in favor of defendants City of Union City, the Police Department of Union City,

and various individual city officers and detectives (“Appellees,” collectively), against

whom he made claims under 42 U.S.C. § 1983 and under state law based on his arrest on

June 4, 2002.

                                              I.

       As we write primarily for the parties, we limit our recitation of the facts to those

pertinent to our disposition. According to police reports, the Union City Police

Department received a detailed tip on May 15, 2002 from an anonymous caller with a

description of a man selling drugs at the corner of 49th Street and Palisades Avenue. The

police had previously received numerous complaints regarding the distribution of drugs in

that area, and thus undertook an undercover investigation. Detective Rodriguez

approached a man fitting the description given by the caller and purchased from him what

was later confirmed to be crack cocaine.

       Detective Hernandez, who followed a short distance behind Detective Rodriguez

along with Detective Segarra, testified that he recognized Appellant after observing him

directly for approximately ten to twelve seconds. Detective Hernandez lived on the same

street as Appellant, he had spoken to him several times, and he had appeared at

Appellant’s house because of complaints by Appellant’s wife of domestic disputes or



                                              2
harassment. Detective Hernandez showed a photograph of Appellant to the other two

detectives involved in the undercover operation, who identified Appellant as the seller of

the drugs.

       At Appellant’s state trial, Detective Hernandez testified that Appellant was not

arrested on May 15, 2002 to preserve the identity of the undercover officer. Detective

Hernandez and Sergeant Julvie arrested Appellant on June 4, 2002, and he was indicted

by a New Jersey grand jury on August 14, 2002 for violating New Jersey narcotics laws.

A jury acquitted Appellant of all charges on December 4, 2003, and he filed this suit

shortly thereafter.

       The District Court granted defendants’ motion for summary judgment, finding that

the officers had probable cause to arrest Appellant, that their investigation did not violate

Appellant’s substantive due process rights, that there was no procedural due process

violation, and that Appellant’s state law claims of negligent infliction of emotional

distress, malicious abuse of process, and false arrest were barred by the New Jersey Tort

Claims Act, N.J. Stat. Ann. § 59:1-2, et seq.

                                             II.

       This court has “plenary review over the District Court’s grant of summary

judgment and appl[ies] the same standard as the District Court.” McGreevy v. Stroup,

413 F.3d 359, 363 (3d Cir. 2005) (citation omitted). Summary judgment shall be granted

“if the pleadings, depositions, answers to interrogatories, and admissions on file, together



                                                3
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.” Fed. R. Civ. P. 56(c).

       To establish a claim under 42 U.S.C. § 1983, a plaintiff must show “(1) whether

the conduct complained of was committed by a person acting under color of state law 1

and (2) whether the conduct deprived the complainant of rights secured under the

Constitution or federal law.” 2 Sameric Corp. of Del., Inc. v. City of Philadelphia, 142

F.3d 582, 590 (3d Cir. 1998). The validity of the constitutional claims must “be judged

by reference to the specific constitutional standard which governs that right . . . .”

Graham v. Connor, 490 U.S. 386, 394 (1989).

       Appellant alleges his arrest violated the Fourth Amendment because the police did



                    1
                        There is no dispute that the individual Appellees are
             “persons” acting under color of state law. Union City is subject to
             liability under § 1983 for injuries caused by its official policies and
             customs. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
             (1978); Couden v. Duffy, 446 F.3d 483, 500 (3d Cir. 2006).
             However, because Appellant has alleged no facts supporting the
             claim that a municipal policy or custom caused the alleged injuries,
             summary judgment was proper as to the City. Moreover, because
             the Police Department is merely an arm of the City, and not a
             separate entity, it is not the proper entity to sue under § 1983. See
             N.J. Stat. Ann. § 40A:14-118 (proclaiming that New Jersey police
             departments are “an executive and enforcement function of
             municipal government”).
                    2
                     Although Appellees raised a qualified immunity defense,
             we must first “ascertain whether a constitutional violation has been
             alleged before determining if qualified immunity is available.”
             Miller v. City of Philadelphia, 174 F.3d 368, 374 (3d Cir. 1999)
             (emphasis in original).

                                               4
not have probable cause to arrest him. Although “[p]robable cause to arrest requires more

than mere suspicion . . . it does not require that the officer have evidence sufficient to

prove guilt beyond a reasonable doubt.” Orsatti v. N.J. State Police, 71 F.3d 480, 482-83

(3d Cir. 1995). The probable cause determination is generally made by the trier of fact;

however, “a district court may conclude ‘that probable cause exists as a matter of law if

the evidence . . . reasonably would not support a contrary factual finding.’” Merkle v.

Upper Dublin School Dist., 211 F.3d 782, 788-89 (3d Cir. 2000) (citation omitted).

       We agree with the District Court that the police officers had probable cause to

arrest Appellant based on the detailed anonymous tip, the subsequent corroborating

undercover investigation and controlled buy, and Detective Hernandez’s on-scene

identification of Appellant, all of which are undisputed.3 Appellant’s arguments

regarding the “fabrication” of the charges against him, the “lame” explanation given as to

why the arrest occurred several weeks after the controlled buy, inconsistencies relating to

the photographic identification, and Appellant’s Notice of Alibi are either speculations

without evidentiary support or do not create a dispute as to the material facts relevant to

the analysis of Appellant’s false arrest claim. Because “[t]he test for an arrest without

probable cause is an objective one, based on ‘the facts available to the officers at the

moment of arrest,’” Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)

(citation omitted), the fact that Appellant offered a post-arrest Notice of Alibi is irrelevant



                    3
                        Appellant did not contest his arrest at trial.

                                                 5
where there is no evidence the officers knew of that alibi at the time of the arrest.

Moreover, Appellant’s emphasis on his acquittal is also misplaced, for “[e]vidence that

may prove insufficient to establish guilt at trial may still be sufficient to find the arrest

occurred within the bounds of the law.” Id.; see also Michigan v. DeFillippo, 443 U.S.

31, 36 (1979). The undisputed facts demonstrate that the officers had a reasonable basis

to believe Appellant had committed a crime.4

       With respect to Appellant’s claim of a substantive due process violation, the

Appellees cite to Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000), where we rejected the

defendant’s “attempt[] to inject a due process argument into what is primarily a fourth

amendment claim . . . [–] that the officers were negligent in their investigation . . . [–

because] negligence by public officials is not actionable as a due process deprivation of a

civil right.” Id. at 789 n.5 (citing Orsatti, 71 F.3d at 484). “Negligent police work, even

if proven, does not violate the due process clause.” Id. at 781 n.1. Liability only exists

for “the most egregious official conduct” that is “so ill-conceived or malicious that it

‘shocks the conscience.’” Miller, 174 F.3d at 375 (certain citations and internal quotation

marks omitted). We agree with the District Court that Appellant’s claims have not met

this standard. Appellant does not support his claims of “outright active lies” by the police




                    4
                     Because Appellant also frames his procedural due process
             and Fifth Amendment claims on appeal in terms of his warrantless
             arrest without probable cause, these claims replicate his Fourth
             Amendment claim and we reject those claims for the same reason.

                                                6
with evidence in the record, and any police conduct with respect to the involvement of

additional officers, such as Sergeant Julvie, possible inconsistency in the reports,

discrepancy over the buy money, or confiscation of Appellant’s money at the time of his

arrest, does not, as a matter of law, shock the conscience.

       Appellant’s state law claims are governed by the New Jersey Tort Claims Act

(“TCA”), N.J. Stat. Ann. § 59:1-2, et seq., which sets forth procedures for making claims

against public entities and public employees, see id. § 59:8-3. The Act requires a

claimant to provide a notice of claim to the public entity or public employee within ninety

days of the accrual of a cause of action, or otherwise to move to file a late notice within

one year of the accrual date. Id. § 59:8-8, :8-9. The accrual date under the TCA is

generally the date on which the alleged tort is committed. See Beauchamp v. Amedio,

751 A.2d 1047, 1050 (N.J. 2000). Appellant did not file his Notice of Claim against

Appellees until February 2, 2004.

       Although the District Court correctly dismissed Appellant’s negligent infliction of

emotional distress claim based on his failure to file proper notice under the TCA,5 such is

not the case regarding his intentional tort claims. See Velez v. City of Jersey City, 850

A.2d 1238, 1246 (N.J. 2004) (interpreting TCA’s notice requirements to apply also to



                    5
                     The Court found that the cause of action accrued on June
             4, 2002, the date of the arrest. Because the Notice of Claim was
             filed well after the ninety-day time limit, or September 4, 2002,
             Appellant’s claim was dismissed. We agree with this
             determination.

                                              7
claims for intentional torts, but stating that the holding “applied prospectively to all

similar causes of action accruing after [June 29, 2004]”). Nevertheless, we need not

remand to the District Court for further proceedings because both the false

arrest/imprisonment and malicious prosecution claims require the absence of probable

cause.6 See Wildoner v. Borough of Ramsey, 744 A.2d 1146, 1154 (N.J. 2000)

(“[P]robable cause is an absolute defense to Plaintiff’s false arrest, false imprisonment,

and malicious prosecution claims . . . .”).

                                              III.

       For the above-stated reasons, we will affirm the judgment of the District Court.




                    6
                      Although the District Court construed Appellant’s claim
             as one of malicious abuse of process, Appellant clarifies on appeal
             that “[t]he state claim to which we refer here is the claim of
             malicious prosecution.” Appellant’s Reply Br. at 11.
                                         8
