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


2-22-2008

Martin v. Lakewood Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4542




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ALD-130                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 07-4542
                                   ___________

                             HENRY G. MARTIN, JR.,
                                        Appellant,

                                         v.

 LAKEWOOD POLICE DEPARTMENT; CHARLIE CUNLIFFE, COMMISSIONER
    LAKEWOOD POLICE DEPARTMENT INDIVIDUALLY AND OFFICIAL
CAPACITY AND MAYOR OF TOWNSHIP OF LAKEWOOD; WAYNE R. YHOST,
 DIRECTOR OF PUBLIC SAFETY; RICHARD DOE AND JOHN DOE UNKNOWN
POLICE OFFICER FOR THE TOWNSHIP OF LAKEWOOD NEW JERSEY; LEROY
       MARSHALL, INDIVIDUAL AND OFFICIAL CAPACITY; HARRY
 VAN DEZILVER, POLICE OFFICER INDIVIDUAL AND OFFICIAL CAPACITY;
    GUILLERMO CLARKE, POLICE OFFICER INDIVIDUAL AND OFFICIAL
     CAPACITY; FELIX RIVERIA, OFFICER INDIVIDUAL AND OFFICIAL
 CAPACITY; PINE BELT CHEVY INCORPORATED; DAVID KIDD, MANAGER
                ____________________________________

                  On Appeal from the United States District Court
                            for the District of New Jersey
                             (D.C. Civ. No. 05-cv-2593)
                  District Judge: Honorable Garrett E. Brown, Jr.
                   ____________________________________

          Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
          or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 14, 2008

          Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges.

                             (Filed: February 22, 2008 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Appellant, Henry G. Martin, Jr., appeals from two District Court orders: the first

granting summary judgment in favor of Defendants Pine Belt Chevy Inc. (“Pine Belt”)

and David Kidd, the manager of Pine Belt (“Kidd”); the second granting summary

judgment in favor of Defendants Lakewood Police Department, Lakewood Police

Department Commissioner Charlie Cunliffe, Lakewood Director of Public Safety Wayne

R. Yhost, Lakewood Police Department Officers Guillermo Clarke, Leroy Marshall, Felix

Riveria, and Harry Van Dezilver (collectively “the Municipal Defendants”).

                                     I. Background

       On July 2, 2004, Martin was driving his vehicle in the vicinity of Martin Luther

King Blvd. in Lakewood, New Jersey. Officers Leroy Marshall and Felix Riveria (the

“officers”) were patrolling the area in plainclothes and in an unmarked car when they first

noticed Martin’s car. The second time they noticed, Martin’s car was parked in front of

an area well known for drug activity and a person was leaning into the window, which

Martin does not deny. Acting on what appeared to the officers to be a potential drug

transaction, they began to follow Martin.

       The officers claim, and Martin does not deny, that Martin failed to make the

appropriate traffic signal three times while they were following his vehicle. When Martin

                                             2
arrived at home, he decided to move his vehicle from his private parking space to side

parking. After placing his car in reverse he collided with the unmarked police car,

striking the front of the officers’ vehicle. Whether the officers hit Martin’s parked car, or

whether Martin hit the officers’ unmarked car while backing up, is disputed. Officer

Guillermo Clark responded to the scene, completed an accident report and issued a

summons to Martin for careless driving based on Martin’s admission that he was

distracted and backed his vehicle into the vehicle operated by Officer Marshall. The

officers issued Martin three traffic summonses for failure to give a proper signal and one

summons for careless driving. All of the summonses were dismissed by the Lakewood

municipal court after Officers Marshall and Riveria failed to appear at the hearing.

       Martin filed a complaint alleging constitutional violations under 42 U.S.C.

§§ 1983, 1985(3), 1986 and 1988. He alleges that the officers involved in the incident

engaged in racial profiling, filed a false accident report and issued groundless traffic

citations, violating his right to equal protection under the Fourteenth Amendment. He

further alleges that the collision amounted to an illegal seizure, violating his Fourth

Amendment rights. The District Court granted the municipal Defendants’ motion on

June 8, 2007. Martin also appeals from the District Court’s December 7, 2006 order

granting summary judgment in favor of Defendants Pine Belt and Kidd. Martin filed a

timely notice of appeal.




                                              3
                                        II. Discussion

       A.     Defendants Pine Belt and Kidd

       Martin’s claims against Pine Belt and Kidd are based on the vehicle loan

agreement between Pine Belt and the Lakewood Police Department set forth in a contract

dated April 5, 1989 (the “Contract”). Martin alleges that Pine Belt loaned the vehicles to

the Department, including the unmarked vehicle used during the events at issue, knowing

that the police were “performing unreasonable, arbitrary and capacious [sic] stops based

on race in the black community,” and that Kidd allowed the Lakewood Police Department

to borrow and use unregistered motor vehicles. (Compl. ¶¶ 13-14.)

       The District Court granted summary judgment in favor of Pine Belt and Kidd

because neither acted “under color of state law.” “Section 1983 provides a federal cause

of action for the deprivation, under color of law, of a citizen’s rights, privileges, or

immunities secured by the Constitution and laws of the United States.” Livadas v.

Bradshaw, 512 U.S. 107, 132 (1994) (quotations omitted) (citing Maine v. Thiboutot, 448

U.S. 1, 4 (1980)). “Private persons, jointly engaged with state officials in the challenged

action, are acting ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks,

449 U.S. 24, 27-28 (1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152

(1970)). However, such private persons must prove that they were “willful participant[s]

in joint action with the State or its agents.” Id. at 27; see also Adickes, 398 U.S. at 152

(plaintiff entitled to relief under 1983 against private party if she can prove that private



                                               4
party and police officer “reached an understanding” to cause her arrest on impermissible

grounds). The “inquiry must be whether there is a sufficiently close nexus between the

state and the challenged action of the . . . entity so that the action of the latter may be

fairly treated as that of the State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351

(1974). A plaintiff can establish such a nexus by alleging and proving the elements of a

civil conspiracy between a state and private actor to violate an individual’s rights. Melo

v. Hafer, 912 F.2d 628, 638 n.11 (3d Cir. 1990) (citing Adickes, 398 U.S. at 152). Martin

fails to provide either direct or circumstantial evidence of such a conspiracy.

       Martin contends that the joint participation or “nexus” requirement is met because

Pine Belt loans vehicles to the Municipal Defendants with “full knowledge” that they are

violating the Constitution by engaging in racial profiling. He alleges that the contract

between the Municipal Defendants and Pine Belt constitutes evidence of a conspiracy or

“formal arrangement” to engage in a “joint action plan . . . to allow unregistered vehicles

to be used by undercover police officer [sic] in law enforcement.” (Pl’s Opp’n at ¶ 9.)

He further claims that the indemnification provision in the contract is evidence of Pine

Belt’s knowledge that they might be implicated in a lawsuit against the Municipal

Defendants.1 Martin also submits that Pine Belt and the Municipal Defendants are




       1
        Paragraph 10 of the Contract provides that “[t]he Township shall indemnify, save
and hold harmless, Pine Bel [sic] Chevrolet, Co., Inc., from any and all claims, judgments
or expenses including counsel fees, arising from the usuage [sic] of all vehicles whic [sic]
are the subject of this Agreement.” (Def’s Motion, Exh. A, ¶ 10.)

                                               5
represented by the same counsel and must therefore be considered “intertwined” for

purposes of finding state action.

       Viewing the underlying facts in the light most favorable to Martin, and drawing all

reasonable inferences in his favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986), we cannot conclude that a triable issue of fact exists with regard to Pine Belt or

Kidd’s willful participation in the alleged wrongful conduct. There is simply no evidence

of a contractual or other agreement to involve Pine Belt or Kidd in any law enforcement

decisions with regard to the undercover activities of the Municipal Defendants. The

contract at issue is limited entirely to the leasing arrangement. Martin has presented no

evidence that Pine Belt or Kidd had any knowledge of the day-to-day law enforcement

operations of the Lakewood Police Department, much less any participation with their

alleged profiling activities.

       B.      The Municipal Defendants

       The District Court granted summary judgment in favor of the Municipal

Defendants under three separate theories. First, summary judgment was granted to

Defendant officers Clarke, Marshall, Riveria, and Van Dezilver because the Court

concluded they were entitled to qualified immunity. When examining whether officers

are entitled to qualified immunity, we first determine whether the conduct alleged by the

plaintiff violated a constitutional right. Scott v. Harris, 127 S. Ct. 1769, 1774 (2007); see

also Showers v. Spangler, 182 F.3d 165, 172 (3d Cir. 1999). If so, the second step is to



                                              6
determine whether the unlawfulness of the action would have been apparent to an

objectively reasonable official. Showers, 182 F.3d at 172. An officer’s subjective intent

in carrying out the challenged action is immaterial to a qualified immunity analysis.

Instead, “whether an official protected by qualified immunity may be held personally

liable for an allegedly unlawful official action generally turns on the ‘objective legal

reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987)

(citation omitted); see also Berg v. County of Allegheny, 219 F.3d 261, 272 (3d Cir.

2000).

         Here, Officers Riveria and Marshall noticed Martin’s car twice, the second time

parked in an area known for drug activity. They observed a person leaning into the

window of his vehicle. Suspecting drug activity they began to follow Martin. While

following him, the officers observed Martin failing to signal when making multiple turns.

They did not issue Martin a traffic summons until after the collision between the

unmarked police vehicle and Martin’s vehicle had occurred.

         We agree with the District Court that Martin’s assertions that Defendants caused

the accident and filed a false report to deprive him of his constitutional rights are bare

allegations of malice that are not sufficient to defeat immunity because the Defendants

acted in an objectively reasonable manner by filing an accident report and issuing Martin

four traffic summonses. See id. The officers followed Martin based on their reasonable



                                              7
suspicion that drug activity had taken place, and continued to follow him after he had

committed what a reasonable officer would believe were multiple traffic violations. Even

if the officers issued the citations to Martin for improper motives, such evidence is

“simply irrelevant” to a qualified immunity defense. Id. (subjective intent is not relevant

to a qualified immunity analysis). Nor does the evidence support Martin’s allegation that

the officers purposely hit his car. Martin admits in his complaint that he placed his car in

reverse and that he asked the officers why they did not blow their horn when they saw

him backing up. (Compl. at ¶¶ 28, 29.) Because we do not find that the officers violated

Martin’s constitutional rights by following him upon their reasonable suspicion of drug

activity, their involvement in the collision or in the issuance of an accident report and

traffic summonses, we need not proceed to the second step of the qualified immunity

analysis. Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (citing Saucier v. Katz, 533 U.S.

194, 201 (2001)).

       The District Court also correctly concluded that Defendant Lakewood Police

Department was entitled to summary judgment because Martin’s theory of respondeat

superior was flawed. “[A] municipality cannot be held liable solely because it employs a

tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.

658, 691 (1978). Pursuant to Monell, Martin could only assert a claim under § 1983

against the police department if the alleged constitutional violation involved a policy



                                              8
officially adopted by the department or where, although not officially adopted, the

violation arose from the local government’s “custom.” Id. at 690-91; see also Beck v.

City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Martin has not proffered evidence of

either an official policy or an unofficial custom. Indeed, Martin’s evidence includes

Lakewood Police Department’s official policy prohibiting discriminatory profiling.2

Viewing the evidence in the light most favorable to Martin, he failed to present evidence

that racial profiling was either a policy or “custom” of the Lakewood Police Department

and therefore summary judgment in favor of the Lakewood Police Department is proper.

       Finally, we agree with the District Court that summary judgment is proper as to

Defendants Cunliffe and Yhost’s alleged encouragement of racial profiling because

Martin has failed to raise any genuine issue of material fact that the Lakewood Police

Department operated under any official policy or custom of racial profiling. Monell, 436

U.S. at 691.

       We will summarily affirm the judgment of the District Court.




       2
        The Department’s official policy prohibits “[t]he detention, interdiction or other
disparate treatment of an individual solely on the basis of their race, ethnicity, age, gender
or sexual orientation.” See Pl’s Opp’n Exh. “Lakewood Police Policy.”

                                              9
