Marc Stephens, et al v. City of Englewood, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: RESTREPO, SCIRICA and FISHER, Circuit Judges. Total Pages: 8. We deny the Stephenses' motion for recusal of the District Judge and their motion for clarification.

Case: 16-1868

Document: 003112611998

Page: 1

Date Filed: 05/03/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1868
___________
MARC A. STEPHENS;
TYRONE K. STEPHENS,
Appellants
v.
CITY OF ENGLEWOOD; ENGLEWOOD POLICE DEPARTMENT;
DET. MARC MCDONALD; DET. DESMOND SINGH;
DET. CLAUDIA CUBILLOS; DET. SANTIAGO INCLE, JR.;
NATHANIEL KINLAW, individually and in official capacity;
NINA C. REMSON, Attorney at Law, LLC; COMET LAW OFFICES LLC
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2-14-cv-05362)
District Judge: Honorable William J. Martini
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 2, 2017
Before: RESTREPO, SCIRICA and FISHER, Circuit Judges
(Opinion filed: May 3, 2017)
___________
OPINION*
___________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Marc and Tyrone Stephens appeal from three orders of the United States District
Court for the District of New Jersey granting summary judgment to the defendants and
denying reconsideration. Finding no error, we will affirm.
This appeal arises out of several criminal actions instituted against Tyrone
Stephens, a minor. In March 2012, Tyrone was charged with theft-related offenses.
Marc Stephens, Tyrone’s adult brother, retained and paid attorney Nina Remson to
defend Tyrone. In June 2012, Tyrone was charged with aggravated assault, and Remson
took on that representation as well. Ultimately, Tyrone pleaded guilty. In this action, the
Stephenses allege that Remson committed malpractice in the course of this
representation. Among other things, they contend that Remson convinced Tyrone to
plead guilty despite receiving specific instructions from Marc to refuse all plea offers.
Tyrone was then arrested in November 2012 in connection with an assault
committed by several individuals outside a 7-Eleven store a little after 10:00 pm on
October 31, 2012. Natalia Cortes, who was a witness to the attack and the cousin of one
of the victims, identified three of the attackers as Tyrone, Justin Evans, and Derrick
Gaddy. Detectives from the Englewood Police Department interviewed Evans, who,
after initially denying that he was involved, confessed to the crime and also stated that
Tyrone had been the ringleader. The detectives then obtained a statement (with Marc
present) from Tyrone, who denied his involvement. Marc offered Tyrone an alibi that
they had been at home together, and Tyrone adopted it. However, Tyrone later admitted
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to being in the vicinity of the 7-Eleven — specifically, at a McDonald’s down the street
— with two different alibi witnesses. Tyrone was taken into custody and the
investigation continued.
The next day, detectives arrested Jahquan Graham and placed him in the holding
cells in the Bergen County Juvenile Court near Tyrone. According to Detective Kinlaw,
he overheard a conversation between Graham and Tyrone. When Graham asked why he
was being held, according to Kinlaw, Tyrone stated, “I know why we are here, that
fucking rat Derek told. He was brought to the police department and released, he’s the
only one who wasn’t arrested.” D.C. dkt. #65-5 at 20.
Tyrone was charged with multiple crimes, including robbery, aggravated assault,
and riot. In December 2012, a trial judge found probable cause on all seven counts of the
criminal complaint, and then reiterated that finding after a second hearing in February
2013. However, at this point, the prosecutor’s case against Tyrone began to unravel.
First, Cortes, while acknowledging that she had earlier identified Tyrone as a perpetrator,
testified that she was not actually sure if he was involved. Second, Evans pleaded guilty
and then recanted his previous statement implicating Tyrone. As a result, the prosecutor
dismissed the indictment with prejudice against Tyrone and he was released from jail.
The Stephenses filed the complaint at issue here in August 2014. In addition to
bringing claims against Remson for her representation, they have raised various claims
under 42 U.S.C. § 1983 and state law against the Englewood detectives, the police
department, and the City of Englewood. The defendants moved for summary judgment,
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and on November 3, 2015, the District Court granted the motions in full. The Stephenses
filed several motions under Fed. R. Civ. P. 59(e), each of which the District Court denied.
They then filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. “We review an order granting
summary judgment de novo, applying the same standard used by the District Court.”
Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000).1
The District Court concluded that Remson was entitled to summary judgment
because the Stephenses failed to comply with New Jersey’s affidavit-of-merit statute.
This statute requires that, in cases like this one involving allegations of professional
malpractice, the plaintiff provide an affidavit from an appropriately licensed person
attesting that there is a “reasonable probability that the care, skill or knowledge exercised
or exhibited . . . fell outside acceptable professional or occupational standards.” N.J. Stat.
Ann. § 2A:53A-27; see also Snyder v. Pascack Valley Hosp., 303 F.3d 271, 273 (3d Cir.
2002) (rule “is enforceable in the district courts when New Jersey law applies”).
While the Stephenses argue at length that Remson provided deficient
representation, they do not meaningfully challenge the District Court’s conclusion that
their failure to provide an affidavit of merit was fatal to their claims. See N.J. Stat. Ann.

1

We will address only arguments that the Stephenses raised in their opening brief. See
United States v. Jackson, 849 F.3d 540, 555 n.13 (3d Cir. 2017). While the Stephenses
purport to incorporate by reference the arguments that they asserted in virtually every
filing that they made in the District Court, “[t]his is insufficient to preserve an argument
for appellate review.” Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724, 731 (7th
Cir. 2014).
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§ 2A:53A-29 (the failure to provide the affidavit “shall be deemed a failure to state a
cause of action”). They do suggest that their failure was caused by Remson’s delay in
responding to their discovery requests, but the undisputed evidence reveals that Remson
provided her entire case file to Marc well before they filed this complaint. The
Stephenses have failed to provide any evidence (or even argument) that the discovery
materials had “a substantial bearing on preparation of the affidavit” such that they would
be excused from filing the affidavit. N.J. Stat. Ann. § 2A:53A-28; see generally
Balthazar v. Atl. City Med. Ctr., 816 A.2d 1059, 1066-67 (N.J. Super. Ct. App. Div.
2003). Accordingly, we will affirm the District Court’s grant of judgment to Remson.
Meanwhile, the Stephenses assert false-arrest, false-imprisonment, and maliciousprosecution claims against the Englewood defendants. “A finding of probable cause
is . . . a complete defense” to each of these claims. Goodwin v. Conway, 836 F.3d 321,
327 (3d Cir. 2016). Probable cause “exists when the facts and circumstances within the
arresting officer’s knowledge 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.”
Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). While probable cause
requires more than mere suspicion, it does not require the type of evidence needed to
support a conviction. See Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010).
The facts here, viewed most favorably to the Stephenses, do not create a genuine
dispute as to whether probable cause existed when Tyrone was arrested. The defendants
had three compelling pieces of evidence implicating Tyrone in the attack: (1) the
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identification by Natalia Cortes; (2) the statement made by Justin Evans that Tyrone had
participated in the attack; and (3) inconsistencies in testimony regarding Tyrone’s alibi.
This evidence was more than sufficient to establish probable cause. See Wilson v. Russo,
212 F.3d 781, 790 (3d Cir. 2000).
While the Stephenses contend that the evidence shows that Tyrone was actually
half a mile away at a McDonald’s at the time that the assault occurred, the equivocal
evidence that they present does not dispel the probable cause described above. See id. at
792-93; Goodwin, 836 F.3d at 328. Further, notwithstanding their arguments to the
contrary, no reasonable juror could conclude that the detectives coerced Evans’s
statement. The transcript of the interrogation reveals that Evans’s mother was present the
entire time (Evans was then nearly 18 years old), he was read his Miranda rights, the
interrogation lasted for just over an over, and the detectives did not use any particularly
harsh tactics. See generally United States v. Jacobs, 431 F.3d 99, 108-09 (3d Cir. 2005);
Hall v. Thomas, 611 F.3d 1259, 1285-89 (11th Cir. 2010). Accordingly, we discern no
error in the District Court’s disposition of the Stephenses’ constitutional claims against
the detectives.2 And, since they have failed to establish an underlying constitutional

2

The Stephenses contend that Detective Kinlaw invented the statement that he said he
overheard Tyrone make while he was in a holding cell. However, they presented no
evidence to support this contention. See generally Blair v. Scott Specialty Gases, 283
F.3d 595, 608 (3d Cir. 2002). While this statement is not relevant to the false-arrest
analysis because it post-dated Tyrone’s arrest, see Wright v. City of Phila., 409 F.3d 595,
602 (3d Cir. 2005), it does provide still more support for the defendants’ decision to
charge Tyrone with various offenses.
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violation, their claims against the police department and Englewood also necessarily fail.
See Kneipp v. Tedder, 95 F.3d 1199, 1212 n.26 (3d Cir. 1996).
The Stephenses’ state-law claims fare no better. To make out a claim of
intentional infliction of emotional distress, they must show that the defendants engaged in
“intentional and outrageous conduct” that was “so severe that no reasonable person could
be expected to endure it.” Tarr v. Ciasulli, 853 A.2d 921, 924 (N.J. 2004) (citations,
alteration omitted). We have already ruled that a reasonable juror would conclude that
the officers had probable cause to arrest and charge Tyrone. Consequently, the
Stephenses cannot show that the defendants’ conduct in arresting and holding Tyrone was
outrageous. See, e.g., Harris v. U.S. Dep’t of Veterans Affairs, 776 F.3d 907, 917 (D.C.
Cir. 2015). The Stephenses also assert that the detectives committed negligence and
defamation by telling Justin Evans that Tyrone was under investigation and had
implicated Evans in the incident, but the record simply does not support that allegation.
Finally, we agree with the District Court that any amendment to the complaint
would have been futile. See generally Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002). And, in light of these rulings, the District Court did not err in
denying the Stephenses’ Rule 59(e) motions. See generally Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008); Max’s Seafood Café ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
Accordingly, we will affirm the District Court’s judgment. We also deny the
Stephenses’ motion for the recusal of the District Judge, see Securacomm Consulting,
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Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000) (“We have repeatedly stated
that a party’s displeasure with legal rulings does not form an adequate basis for
recusal.”), and their motion for clarification.

8