HANDY v. MILLVILLE POLICE DEPARTMENT et al

Filing 31

OPINION. Signed by Judge Renee Marie Bumb on 7/16/2013. (dmr)

NOT FOR PUBLICATION

[Dkt. No. 8, 27]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

GERMAINE HANDY,
Plaintiff,

Civil No. 1:13-cv-01584
(RMB/JS)

v.
OPINION
MILLVILLE POLICE DEPT., et al.,
Defendants.

Appearances
Ronald P. Sierzega
Puff & Cockerill, LLC
122 Delaware Street
P.O. Box 684
Woodbury, NJ 08096
Attorneys for Plaintiff
A. Michael Barker
Barker, Scott & Gelfand
210 New Road
Suite 12
Linwood, NJ 08221
Attorneys for Defendants
Bumb, UNITED STATES DISTRICT JUDGE:
Defendants Millville Police Department, Thomas Haas, City
Of Milville, Carlo Drogo, Patricia Ruth, and Anthony Cills (the
“Defendants”) have moved to dismiss Plaintiff Germaine Handy’s
(the “Plaintiff”) First Amended Complaint1 (the “First Amended
Complaint” or “Compl.”).

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[Docket No. 11].

Plaintiff opposes Defendants’ motion

and has also moved for leave to file a Second Amended Complaint
(the “Second Amended Complaint”).

For the reasons set forth

below, Defendants’ Motion to Dismiss is GRANTED, and Plaintiff’s
Motion for Leave to Amend is DENIED.
I.

BACKGROUND
A.

Factual

On the evening of September 13, 2005, Plaintiff was stopped
by Defendant Special Officer Anthony Cills (“Cills”) for
allegedly riding his bicycle on the sidewalk, in violation of
city ordinance. (Compl. ¶ 10).

Officer Cills requested backup

and Defendant Police Officer Carlo Drogo (“Drogo”) joined the
scene and proceeded to interrogate Plaintiff, who did not have
identification on his person. (Id. ¶¶ 11-12).

Plaintiff

provided Drogo with his full name, address, and date of birth.
(Id. ¶ 14).

Drogo contacted Defendant Dispatcher Patricia Ruth

(“Ruth”) to check for outstanding warrants. (Id. ¶ 15).
According to the Complaint, Ruth did not find any outstanding
warrants for Plaintiff – only for a man with a different
birthday and a differently spelled first name - but Drogo
nonetheless arrested Plaintiff. (Id. ¶¶ 17, 18).

During a

search incident to Plaintiff’s arrest, police discovered a small
quantity of narcotics. (Id. ¶ 19).
Upon returning to the station, it was confirmed that the
warrant Ruth found did not pertain to Plaintiff. (Id. ¶ 20).
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On

December 14, 2005, Plaintiff was charged with a drug offense.
(Id. ¶ 21; Plaintiff’s Brief in Opposition to Defendants’ Motion
to Dismiss at 6)

Plaintiff pled guilty after the trial court

declined to suppress the drug evidence. (Id. ¶ 22). On appeal,
the New Jersey Appellate Division found that the evidence was
illegally obtained and inadmissible in court. (Id. ¶¶ 23-25.)
That ruling was affirmed by the New Jersey Supreme Court on
April 26, 2011. (Id. ¶ 26).

Plaintiff was incarcerated for nine

months on the drug charge. (Id. ¶ 28).
B.

Procedural

On February 1, 2013, Plaintiff filed an action in New
Jersey Superior Court alleging constitutional violations based
on his arrest.

[Docket No. 1].

On March 14, 2013, Defendants

removed the action to this Court.

[Docket No. 1].

2013, Defendants moved to dismiss the action.

On April 22,

[Docket No. 8].

On April 26, 2013, Plaintiff filed the First Amended Complaint.
[Docket No. 11].

In the First Amended Complaint, Plaintiff

alleged six counts – all based on the allegedly unlawful search,
false arrest, and false imprisonment of Plaintiff.

(Compl. ¶¶

32-57).
On June 26, 2013, Plaintiff moved to amend the Complaint
and file the Second Amended Complaint.

The Second Amended

Complaint has stylistic changes, but substantively only differs
in that it adds two counts: (1) Count VII – malicious
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prosecution in violation of 42 U.S.C. § 1983; and (2) Count VIII
– state and common law malicious prosecution.
II.

Analysis
This Court first addresses Defendants’ motion to dismiss.

It then addresses Plaintiff’s motion for leave to amend.
A.

Defendant’s Motion to Dismiss Current Claims
1.

Standard

To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Sheridan v. NGK Metals Corp., 609 F.3d
239, 262 n.27 (3d Cir. 2010) (quoting Ashcroft v. Iqbal, 556
U.S. 663, 678 (2009))(internal quotation marks omitted). "A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id.
(quoting Iqbal, 556 U.S. at 678). The Court conducts a threepart analysis when reviewing a claim:
First, the court must tak[e] note of the elements a
plaintiff must plead to state a claim. Second, the
court should identify allegations that, because they
are no more than conclusions are not entitled to the
assumption of truth. Finally, where there are wellpleaded factual allegations, a court should assume
their veracity and then determine whether they
plausibly give rise to an entitlement for relief.

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Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)
(internal citations and quotations omitted); see also Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) ("...[A]
complaint must do more than allege the plaintiff's entitlement
to relief. A complaint has to ‘show’ such an entitlement with
its facts.").
2.

Application

Defendants argue that the First Amended Complaint must be
dismissed because all its claims are time-barred.

The parties

agree that the statute of limitations for all claims at issue in
the First Amended Complaint is two years. They disagree as to
when the statute of limitations began to run.
As indicated above, the claims in the First Amended
Complaint are all predicated on the alleged unlawful search,
false arrest, and false imprisonment of Plaintiff.

With respect

to Plaintiff’s unlawful search claim, that claim accrued when
the allegedly unlawful search occurred, on September 13, 2005.
MacNamara v. Hess, 67 F. App’x 139, 143 (3d Cir. 2003).

With

respect to Plaintiff’s false arrest and false imprisonment
claims, those torts cease, and the statute of limitations begins
to run, once the victim is held pursuant to legal process, such
as being arraigned on charges, or indicted. Wallace v. Kato, 549
U.S. 384, 390-91 (2007)(holding the above with respect to

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arraignment or other legal process).2

Therefore, here,

Plaintiff’s claims relating to his alleged false arrest and
false imprisonment began to run no later than 2005, when he was
indicted. Id.
Because Plaintiff’s original Complaint was not filed until
April 26, 2013, far outside the two year statute of limitations
for claims that began to run in 2005, Plaintiff’s claims are
time-barred and must be dismissed.

Accordingly, Defendants’

motion to dismiss is GRANTED.
B.

Plaintiff’s Motion for Leave to Amend

2

See Humphreys v. City of Ganado, Tex., 467 F. App’x 252, 255-56 (5th
Cir. 2012)(“Additionally, the statute of limitations on Humphreys's
claim for false arrest began running, at the latest, when he was
indicted in July 2005.”); Braunstein v. U.S. Postal Serv., No. 0516390, 2007 WL 1112620, at *1 (9th Cir. Apr. 12, 2007)(“With regard to
false arrest, the Supreme Court recently held that such claims require
detention without legal process and accrue once legal process is
initiated. . . . Braunstein was arrested only after indictment and was
never detained without process. Therefore, he has no false arrest claim
under either the FTCA or Bivens.”)(quotations omitted); Bianchi v.
McQueen, No. 12-364, 2013 WL 140915, at *9 (N.D. Ill. Jan. 11,
2013)(finding that grand jury indictment constituted legal process);
Bertuglia v. City of New York, 839 F. Supp. 2d 703, 734 (S.D.N.Y.
2012)(same); Blow v. Paterson Police Dept., No. 11-2128, 2012 WL
368206, at *5 (D.N.J. Feb. 3, 2012)(finding false arrest and
imprisonment claims time-barred where filed more than two years after
the indictment); Haggins v. Schroyer, No. CV411-209, 2011 WL 5358665,
at *3 (S.D. Ga. Nov. 7, 2011)(“Here Haggins alleges false arrest but
has since undergone a preliminary hearing and has been indicted, so his
false arrest claim at the latest ends with his indictment (i.e., when
he came to be held pursuant to ‘legal process’)—which is also when his
malicious prosecution claim begins.”); Garcia v. City of New York, No.
06-746, 2009 WL 2973002, at *3 (S.D.N.Y. Sep. 17, 2009)(“Here, legal
process was initiated against the Plaintiff when the Grand Jury issued
the Indictment on October 4, 2002. Plaintiff's damages period for a
claim premised upon detention without due process therefore ended on
that date. As this accrual date occurred more than three years before
the date Plaintiff initiated this action, Plaintiff's false arrest
claim is untimely.”); Vaughn v. Waters, No. 09-3109, 2009 WL 26002205,
at *7 (D.N.J. Aug. 24, 2009)(“Thus, it is clear that Vaughn was held
pursuant to legal process, and his false imprisonment from the alleged
false arrest ended when he was indicted on May 31, 2006.”).

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1.

Standard

The Federal Rules of Civil Procedure instruct this court to
freely give leave when justice so requires. Fed. R. Civ. Pro.
15(a)(2).

However, leave to amend should not be granted when it

would be futile.

In re Burlington Coat Factory Sec. Litig., 114

F.3d 1410, 1434 (3d Cir. 1996)(internal citations omitted). The
standard of review for “futility” is the same standard of legal
sufficiency as applies under Fed. R. Civ. Pro. 12(b)(6). Kenny
v. United States, 489 F. App’x 628, 633 (3d Cir. 2012)(citing
Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238, 243 (3d
Cir. 2010)).
2.

Application

As indicated above, the only new causes of action Plaintiff
alleges are based on malicious prosecution under federal and
state law.

Because this Court found that all of Plaintiff’s

other claims are time-barred, leave to amend would be futile if
Plaintiff’s malicious prosecution claims fail.

They do.

Under both federal and state law, malicious prosecution
requires, among other things: (1) a lack of probable cause for
the initiation of criminal proceedings; and (2) a termination of
criminal proceedings in favor of the plaintiff. Rivera v.
Fusiak, No. 12-7623, 2013 WL 1792513, at *6 (D.N.J. Apr. 26,
2013).

With respect to the termination prong, while a plaintiff

need not prove his outright innocence to establish this prong,
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the disposal of the prior criminal case must at least be
indicative of the innocence of the accused. Morris v. Verniero,
453 F. App’x 243, 245 (3d Cir. 2011); Kossler v. Crisanti, 564
F.3d 181, 187 (3d Cir. 2009).

Applying that principle, because

a reversal of a conviction based on the suppression of evidence
does not suggest innocence of the underlying crime, it does not
constitute a favorable termination.

Freeman v. State, 788 A.2d

867, 877-78 (N.J. Super. Ct. App. Div. 2002)(finding a reversal
of a conviction based on a failure to suppress evidence was not
a favorable termination for malicious prosecution claim); see
Woodyard v. Cty. Of Essex, No. 12-2945, 2013 WL 791634, at *6
n.2 (3d Cir. 2013)(finding that it was not “likely” that
plaintiff could satisfy “favorable termination element” where
“the prosecution sought to dismiss the charges against Woodyard
because it believed it could not meet its burden of proof after
two witness identifications of Woodyard were suppressed by the
trial court.”).3
Defendant argues that an amendment would be futile because
the Plaintiff cannot show: (1) the criminal proceedings were

3

See also Morris, 453 F. App’x at 246 (finding no favorable termination
where prosecution was dropped based on anticipated success of motions
to suppress); Miller v. Cuccia, 201 F.3d 431, 431 (2d Cir.
1999)(affirming dismissal of malicious prosecution claim where
dismissal of criminal indictment was based on suppression of evidence);
Johnson v. Arroyo, No. 09-1614, 2010 WL 1195330, at *3 (N.D. Ill. Mar.
22, 2010)(“The court made no formal ruling on the suppression motion,
but even if the motion had been granted and the drug evidence
suppressed, such a suppression would not be indicative of innocence
because the suppression would not be related to the evidence's
trustworthiness.”).

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terminated in favor of the Plaintiff; or (2) there was a lack or
probable cause for the proceedings. The Court agrees.

First,

with respect to the termination prong, Plaintiff cannot
demonstrate that the dismissal of the criminal charge against
Plaintiff was indicative of his innocence.

It is undisputed

that Plaintiff was guilty of the drug crime for which he was
charged and the reversal of his conviction was solely based on
the suppression of evidence.

Second, the criminal proceeding at

issue was the drug offense, and there is no dispute that there
was probable cause to believe that Plaintiff had committed that
offense.
Because Plaintiff’s malicious prosecution claims would
fail, leave to amend would be futile.

Accordingly, Plaintiff’s

motion for leave to amend is DENIED.
III. Conclusion
For the reasons outlined above:
(1) Defendant’s Motion to Dismiss is GRANTED; and
(2) Plaintiff’s motion for leave to amend is DENIED.
Because this Court has concluded that leave to amend would
be futile, this matter is dismissed with PREJUDICE.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Date: July 16, 2013

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