PITTMAN v. METUCHEN POLICE DEPARTMENT et al
Filing
91
MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 3/22/16. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WILLIAM PITTMAN,
Civ. No. 2:12-cv-02044 (KM)
(MAR)
Plaintiff,
v.
MEMORANDUM OPINION
METUCHEN POLICE DEPARTMENT, et
Defendants.
MCNULTY, District Judge
This matter comes before the Court on two motions for summary
judgment, pursuant to Fed. R. Civ. P. 56. The first (ECF no. 53) is brought by
defendants the Borough of Metuchen, the Metuchen Police Department, Lieut.
David Irizarry, Officer Wayne Karalevich, Officer Edward Mosko, Officer Kevin
Doherty, Officer Octavio Tapia, and Sgt. James Connolly. The second (ECF no.
54) is brought by defendant Officer Anthony Carro, who joins in the other
defendants’ motion as well.’
Plaintiff William Pittman, pro Se, brought this civil rights action. Certain
of his claims against the town and the police officers arise from his arrest and
conviction of “peeping Tom” charges. Others arise from a separate incident in
which Pittman was allegedly attacked by defendant Anthony Carro’s dog. For
the reasons expressed herein, both of the summary judgment motions will be
granted.
I have previously entered an Order and Opinion dismissing the Complaint as
against the Middlesex County Prosecutor’s Office, County Prosecutor Bruce J. Kaplan,
and Assistant Prosecutor Jason Boudwin on immunity grounds and for failure to state
a claim. (ECF nos. 36, 37)
I.
FACTUAL BACKGROUND OF “PEERING” CHARGE
I first discuss the summary judgment motion relating to the April 7,
2010 arrest of Plaintiff on “peering,” or “peeping Tom” charges, and his
subsequent prosecution.
A.
Defendants’ Statement of Undisputed Facts
I here summarize Defendants’ Statement of Undisputed Material Facts
(DSUMF, ECF no. 53-3) as it relates to the peering arrest and conviction.
On April 7, 2010, Patrolman Karalevich received a report of someone
peering into a window of the house neighboring 27 Sidney Place in Metuchen.
When he arrived, a neighbor, Eric Goldenberg, and his girlfriend, Evelyn
Magrini, reported that they had seen someone looking through the window of
30 McCoy Avenue. Karalevich detained Mr. Pittman near the house.
Sgt. Connolly arrived and interviewed the witnesses, Goldenberg and
Magrini. Both positively identified Pittman as the man they had seen peering
into the window. Pittman was arrested and processed. Goldenberg and Magrini
gave statements at the station house.
Pittman was charged by complaint with “peering” in violation of N.J. Stat.
Ann. § 2C:18-3(c), and defiant trespass in violation of N.J. Stat. Ann. 2C:18§
3(b)(3).
2
Hon. Gary Price, J.M.C., approved the placement of the peering charge
2
b. Defiant trespasser. A person commits a petty disorderly persons
offense if, knowing that he is not licensed or privileged to do so, he enters
or remains in any place as to which notice against trespass is given by:
(1) Actual communication to the actor; or
(2) Posting in a manner prescribed by law or reasonably likely to
come to the attention of intruders; or
(3) Fencing or other enclosure manifestly designed to exclude
intruders.
c. Peering into windows or other openings of dwelling places. A person
commits a crime of the fourth degree if, knowing that he is not licensed
or privileged to do so, he peers into a window or other opening of a
dwelling or other structure adapted for overnight accommodation for the
purpose of invading the privacy of another person and under
circumstances in which a reasonable person in the dwelling or other
structure would not expect to be observed.
7
on a warrant complaint (no. 1210—W--2010-42), based on prior convictions. Bail
was set at $50,000, and a psychological evaluation was ordered.
A Middlesex County Grand Jury heard testimony by Sgt. Connolly and
Patricia LaGay, who lived at 30 Sidney Place. It found probable cause and
indicted Pittman for the peering charges. On May 21, 2012, after a jury trial in
Middlesex County Superior Court, Pittman was found guilty of the peering
charge, a fourth degree offense.
On August 31, 2012, the Hon. Joseph Paone, J.S.C., sentenced Pittman
to 18 months’ incarceration. Mr. Pittman has a record of 26 arrests, some 21 of
them resulting in convictions.
See DSUMF
B.
¶J
1-32, 61-63, & Exs. A—N.
Plaintiff’s Statement of Undisputed Facts
For simplicity, I will here reproduce in its entirety Plaintiff Pittman’s
statement of undisputed material facts as it relates to the April 7, 2010 arrest
of Plaintiff on “peering,” or “peeping Tom” charges, and his subsequent
prosecution. (“PSUMF”, ECF no. 76 at 12)
1. In the Complaint
,
Plaintiff states facts of violations of the rights
afforded by The by United States Constitution pursuant to 42 U.S.C.
against the Metuchen Defendant’s
.
§
1983
The factual basis of Plaintiffs Complaint
are arrest on April 7, 2010 and An incident which involves Officer Carro on
October 20, 2010 (See Document Number 1).
2. On April 7, 2010 at 11:50 p.m. dispatcher Chrissy received a call from
a Eric Goldenberg of the residence of 27 Sidney Place stating that a male was
walking around His neighbor’s yard he was asked to give a description in which
he stated that the person Was 6, feet tall wearing all black, when, when asked
again to give a better description He could not, the area that he saw the male
walking around was directly in front of His back porch which is 24 McCoy
Avenue, {See Exhibit A which is the 911 call) {See Exhibit B a copy of the two
N.J. Stat, Ann. § 2C:18-3.
3
{2) page Investigation Report dated April 8,20 10 prepared By Patrolman
Karalevich.)
3. Officer Karalevich responded and parked his vehicle on the corner of
Sidney Place And Amboy Avenue and walked north on Sidney Place {See
Exhibit B.)
4. As Officer Karalevich approached the front yard of 27 Sidney Place,
Mr. Goldenberg Advised Officer Karalevich that he and his girlfriend Evelyn
Magrini, saw an individual Looking through the rear windows of 30 McCoy
Avenue {See Exhibit A.)2. References to the documents submitted as part of the
certification of Plaintiff William Pittman in support of Plaintiffs Motion for
Summary Judgment
,
will be hereinafter Be referred as Exhibit followed by the
corresponding letter.
5. After proceeding up the driveway, Officer Karalivich shined his
flashlight into the Rear yard of 30 McCoy Avenue and heard movements as if
someone running towards Avenue (See Exhibit B.)
6. Officer Karalevich proceeded through the back yards towards the front
yard and Intercepted Plaintiff walking briskly down MCoy Avenue, and stated
what are you doing Walking around in yards Plaintiff denied walking around in
any yard , Plaintiff was asked name And frisked (See Exhibit C. which is MVR
of car 44 Officer Mosko.)
7. At this point Officer Mosko was driving down McCoy Avenue on the
opposite side And stopped Officer Karalevich demanded that Plaintiff put his
hands on the hood of the Car, Officer Karalevich performed a pat down of
Plaintiff for weapons
,
which resulted In negative results. (See Exhibit c.)
8. Officer Karalevich would go back the way he came from which was 24
McCoy Avenue In which he would speak to the witnesses Mr. Goldenberg and
Ms.Magrini, (See Exhibit which Is a picture of 24 McCoy Avenue which is
directly in front of the rear porch of 27 Sidney Place
9. Sergeant Connolly would respond to the scene
,
and speak to Plaintiff
and state weren’t You arrested before for this Plaintiff stated that he was
walking down the street, and was Stopped
4
,
Officer Doherty would arrive and
assist Officer Mosko, while Sergeant Connolly Would go and speak to witnesses
in which he would he would state we just subdued a guy Coming out of the
yard (See Exhibit D. which is MVR from patrol car 50 Sergeant Connolly.
Sergeant Connolly would ask the witnesses if they would be able to l.D.
the person that They saw in which they stated yes, he would activate his
mobile camera in car 50, during The transport
,
Mr. Goldenberg mentioned
that the suspect had on all black but had something Silver on the side of his
shirt, Plaintiff was standing with officers uncuffed
,
and light was Shined on
him Mr.Goldenberg and Ms. Magrini positively Identified the person they saw,
looking In the windows of 30 McCoy Avenue
,
the show up was recorded from
the mobile unit of car 50 and placed into evidence
taken and placed into evidence
,
,
a DVD statement was
also a Signed statement was taken (See
Exhibit F. Sergeant Connolly’s report 2pgs)
(See Exhibit G. recorded statement of Eric Golden Berg, Ms. Magrini)
also Plaintiff Was placed under arrest after the identification by the witnesses
(See Exhibit H statement of certainty by Eric Goldenberg taken by
Sergeant Connolly 1 pg.) (See Exhibit I statement of certainty by Evelyn Magrini
taken by Sergeant Connolly 1 pg.) Once at headquarters Plaintiff was processed
and charged with 2C: 18-3c peering and 2C-18-3(b) defiant trespassing Judge
Price was contacted, and bail was set at
victim and witnesses
,
$
50.000 And no contact with the
and psychological evaluation be done Plaintiff was
transported to the Middlesex County Adult Corrections Center (See Exhibit J.
Complaint.) (See Exhibit K. Summons)
On April 8, Sergeant Kilker would go to 30 McCoy Avenue and inspect
the area and there was Nothing of evidential value he took pictures of Plaintiffs
vehicle 8 photographs depicting the Location on Hanson Avenue a 1994 Nissan
Sentra N.J. registration YLX SOL (See Exhibit L 1 pg)
10.( See Exhibit G Recorded statement of Eric Goldenberg, Evelyn
Magrini on 4/8/20 10)
11. (See Exhibit H. Statement of certainty signed by Eric Goldenberg on
4/8/2010)
5
12.( See Exhibit I Statement of certainty signed by Evelyn Magrini)
13. (See Exhibit J is complaint No. 1210-W-2010 42 signed by Officer
Karalevich, 2C: 18-3C Peering)
14. (See Exhibit K Summons signed by Officer Karalevich 1210-5-2010
43 Defiant Trespass)
15. (See Exhibit L Pictures taken by Sergeant Kilker of 30 McCoy Avenue
also of Plaintiffs Car on 4/9/2010)
16. The charges that Plaintiff was charged with resulted in an indictment
by the Middlesex County grand jury on August 25,2010 the witnesses to testify
were Sergeant Connolly, and Patricia Legay the victim and resident of 30
McCoy Avenue Metuchen, New Jersey, (See Exhibit M.)
17. Plaintiff was Indicted on for peering into victims windows in violation
of N.J.S.A. 2C:18-3(c) The disorderly persons offense was not presented
N.J.S.A, 2C:18-3(b) (3) (See Exhibit N)
18. Plaintiff would stand trial on the N.J.S.A.2C:18-(c) the peering the
trial was conducted by The Honorable Joseph Paone, J.S.C. from May 14-2 1,
Plaintiff was convicted
,
the Defiant Trespass was dismissed (See Exhibit 0
Judgment of Conviction, and Order Of Commitment.
19. Risk Assessment (Preliminary Results) interview with psychologist:
Dennis H.Sandrock, PhD On April 12, 2010, at the Middlesex adult Correction
Center, (See Exhibit P Results)
20. Photos of the area rear yard of 27 Sidney Place Metuchen
,
also
photos of 24 McCoy Avenue which is the rear , yard also theont, also the front
of 27 Sydney Place, the rear Yard of 30 McCoy Avenue also the front (See
Exhibit Q Plaintiff will mark residence)
21. On August 21, 2012 Plaintiff would file factual description to the
court in which the Court would return stating that the enclosures are discovery
and should be filed on CM/ECF Plaintiff would forward all documents and
letter to Mr. William T.Connell Esq., Mr. Michael J. Stone Esq., Karol Corbin
Walker Esq., Gregory S.Thomas Esq. (See Document 29)
6
22
(New Jersey Criminal History Detailed Record ordered by Assistant
Prosecutor Carlos Jimenez requested April 28,20 10 Pgs 1-6, also Certified
Disposition of Summons case# 921409, Warrant# W 739597, Violation 2C: 143b Not Guilty Disposition Date May 19, 1993 See Exhibit R.
23.Plaintiff after being sentenced by Honorable Judge Paone would fill
out forms for Appeal After not hearing about Appeal Plaintiff would contact
Public Defenders Office Appellate Section In Newark, NJ and a certification was
forwarded to Plaintiff in which was filled out and Forwarded signed October
19,20 13 on October 30,20 13 a Notice Of Appeal was forwarded To the Clerk of
the Superior court in Trenton as well as the Office of the Attorney General
Middlesex County Criminal Case Management, Middlesex County Prosecutor
Office, Hon. Joseph Paone, J.S.C. (See Exhibit S.)
II.
ANALYSIS OF CLAIMS RELATING TO “PEERING” CHARGE
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Kreschollelc v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000).
In deciding a motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving party. See Boyle u.
Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party
bears the burden of establishing that no genuine issue of material fact
remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). “[W]ith
respect to an issue on which the nonmoving party bears the burden of proof
the burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
7
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. p. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations
and pleadings are insufficient
...
to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,
657 (3d Cir. 1990); see also Gleason v. NorwestMortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).
If the nonmoving party has failed “to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial,
there can be ‘no genuine issue of
...
material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322—23).
Although it is not always supported by evidence or affidavits, I have
taken the plaintiff’s statement of material facts at face value and interpreted it
in light of statements in his briefs. I have examined the record, including the
exhibits, in order to identify any genuine, material issue of fact, but I find that
plaintiff’s claims must be denied as a matter of law.
A.
Heck v. Humphrey
Mr. Pittman’s claims cannot be maintained because they attack the basis
of his state “peering” conviction, which has not been overturned or vacated.
Under the doctrine of Heck v. Humphrey, 512 U.S. 477, 5. Ct. (1994), these
claims are barred, and summary judgment must be granted to the defendants.
On April 7, 2010, Mr. Pittman was arrested by the Metuchen police. He
was charged by complaint with “peering” (a “peeping Tom” charge) in violation
of N.J. Stat. Ann.
§ 2C: 18-3(c), and defiant trespass in violation of N.J. Stat.
8
Ann.
§ 2C: 18-3(b)(3). A Middlesex county Grand Jury found probable cause
After a jury trial in Middlesex County
and indicted him for the peering charge.
Superior Court, Pittman was found guilty of the peering charge, a fourth degree
offense. On August 31, 2012, the Hon. Joseph Paone, J.S.C., sentenced him to
18 months’ incarceration. These are facts of public record, not meaningfully in
dispute, established by properly sponsored exhibits. (See MSUMF
¶J 1—32, 61—
63, & Exs. A-N.)
Under the Heck doctrine, no civil claim that attacks the basis of a
criminal conviction can be brought unless and until the conviction itself is
successfully attacked. A convicted defendant cannot, for example, sue the
government witnesses on the theory that they lied, or sue the police for seizing
the evidence on which the conviction was based. Thus Heck has often been
applied to cut off claims of persons who seek, in effect, to relitigate the merits
of currently valid convictions via a civil suit challenging the legality of, e.g., a
search. See, e.g., Crawford v. Frimel, 337 F. App’x 211, 213 (3d Cir. 2009) (per
curiam) (applying Heck bar to Fourth Amendment claim as success would
imply the invalidity of his conviction); Hinton v. White, No. 10-3902, 2012 WL
6089476, at *3 (D.N.J. Dec. 6, 2012) (applying Heck bar to illegal search and
seizure claim that would call into question state criminal conviction) (citations
4
omitted). Likewise, plaintiff’s claim that the “show-up” identification was
constitutionally deficient (which is not adequately explained in any event)
The fate of the trespassing charge is somewhat unclear. Only the peering charge
was pursued before the grand jury, and the eventual judgment of conviction notes that
the trespassing charge is no longer in the case. See DSUMF Ex. N at 12; Ex. L.
(Defendants’ papers inadvertently sometimes state it the other way around.) It might
be inferred that the trespassing charge was dropped in favor of the indictable peering
offense. Pittman at times complains that the yard was not fenced, but offers no
evidence cognizable on summary judgment. One photo seems to suggest there was a
fence on the side facing the driveway and street, but this is far from clear. See PSUMF
Ex. E.
4
A dismissal under Heck alone will ordinarily be without prejudice to reassertion
in the event the criminal conviction is vacated. See Brown u. City of Phila., 339 F.
App’x 143, 145-46 (3d Cir. 2009) (per curiam) (citing Fottler v. United States, 73 F.3d
1064, 1065-66 (10th Cir. 1996)).
3
9
might properly have been the subject of a suppression motion, but is not the
basis for a post-conviction lawsuit.
Claims of false arrest and malicious prosecution are likewise barred.
Both require that probable cause be lacking, see infra. But the officers arrested
Pittman based on the same eyewitness accounts that later furnished the basis
for the grand jury’s finding of probable cause and the petit jury’s conviction of
him on a reasonable doubt standard, which far exceeds that of probable cause.
A false arrest claim is therefore barred by Heck. See Carter v. Warraich,
No. 08-1835, 2009 WL 871947, at *2 (D.N.J. Mar. 30, 2009) (collecting cases
dismissing false arrest claims as barred by Heck); see also Wallace v. Kato, 549
U.S. 384, 393-94 (2007) (assuming for statute of limitations purposes that,
under Heck, false arrest claim that impugns conviction is barred). Afortiori, any
claim of malicious prosecution is barred by Heck, which was itself a malicious
prosecution case. Here, the prosecution was supported by an indictment,
obtained on a showing of probable cause, and it resulted in a conviction by
proof beyond a reasonable doubt.
There is no meaningful distinction between the evidence underlying the
original arrest, the indictment, and the conviction itself. To say, as Pittman
does, that there was no probable cause to arrest or prosecute him directly
impugns the conviction. Any such claim is barred by Heck.
B.
Probable Cause
Assuming that these claims could past the bar of Heck, they would
nevertheless fail because Pittman has failed to raise a triable issue of fact as to
the existence of probable cause.
“To state a claim for false arrest under the Fourth Amendment, a plaintiff
must establish: (1) that there was an arrest; and (2) that the arrest was made
without probable cause.” James u. City of Wilkes-Bczrre, 700 F.3d 675, 680 (3d
Cir. 2012) (citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir.
1995); Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988)). “Probable
cause to arrest exists when the facts and the circumstances within the
I0
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.” Merkie v. Upper Dublin Sch. Dist., 211 F.3d 782,
788 (3d Cir. 2000) (quoting Orsatti v. New Jersey State Police, 71 F.3d 480, 482
(3d Cir. 1995)); see also Minatee u. Phila. Police Dep’t, 502 F. App’x 225, 228 (3d
Cir. 2012) (citation omitted). The arresting officer must only reasonably believe
at the time of the arrest that an offense is being committed, a significantly
lower burden than proving guilt at trial. See Wright v. City of Phila., 409 F.3d
595, 602 (3d Cir. 2005); see also Minatee, 502 F. App’x at 228 (citation
omitted). When a plaintiff is arrested for multiple charges, the establishment of
probable cause as to one charge is sufficient to defeat a Fourth Amendment
claim of arrest without probable cause. See Startzell v. City of Phila., Pa., 533
F.3d 183, 204 n.14 (3d Cir. 2008) (citation omitted).
In order to prevail on a Constitutional claim of malicious prosecution, a
plaintiff must demonstrate that: “(1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in the plaintiffs favor; (3) the
proceeding was initiated without probable cause; (4) the defendants acted
maliciously or for a purpose other than bringing the plaintiff to justice; and (5)
the plaintiff suffered deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.” Johnson v. Bingnear, 441 F.
App’x 848, 851 (3d Cir. 2011) (quoting McKenna v. City of Philadelphia, 582
F.3d 447, 461 (3d Cir. 2009)). See also Lind v. Schmid, 67 N.J. 255, 262, 337
A.2d 365, 368 (1975) (similar elements for state law tort claim).
Mr. Pittman has failed to raise a factual issue as to either.
All of the relevant evidence establishes that the police had in their hands
an adequate probable cause basis for the arrest and the initial charge. Most
pertinently, two eyewitnesses, Goldenberg and Magrini, identified Pittman as
the person who had been on the property of 30 McCoy Avenue and peered in
the window.
Pittman, in his statement of facts, actually corroborates that this
eyewitness identification occurred. He denies that he committed the offense,
but that is not the issue. The issue is whether the facts the officers had would
justify a reasonable person in believing that an offense had been committed,
and that Pittman was the person who committed it. See generally Brinegar v.
United States, 338 U.S. 160, 175—76 (1949) (“Probable cause exists where ‘the
facts and circumstances within
...
[the officers’] knowledge and of which they
had reasonably trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that an offense has been or is
being committed.”) Clearly the officers possessed sufficient information.
The grand jury indictment on the peering charge is itself prima facie
evidence of probable cause. See Rose v. Bartle, 871 F.2d 331, 353 (3d Cir.
1989). And it was supported by sufficient evidence. The officer related the
eyewitness identifications to the jury, and Ms. LaGay, the resident of the
house, testified that she did not know Pittman and never invited him to her
home. (MSUMF Ex. N) This, too, was clearly a sufficient showing of probable
cause. Pittman disputes the truth of this testimony, but he cannot and does not
dispute that this was the testimony the grand jury heard (and believed).
Pittman’s papers do not advert to any evidence in support of his
generalized accusations of falsehood. The complaint’s conspiratorial allegations
never were backed up by affidavits, testimony, or documentary evidence. For
example, he claims in his brief that Connolly must have prompted the
witnesses, but offers no evidence of that. The statements of the witnesses,
attached to his papers, provide no support for his claims of perjury or
falsehood.
As to malicious prosecution, there is also a requirement that the criminal
proceedings have concluded in the plaintiff’s favor. See supra. As to the peering
charge, they did not. Mr. Pittman was convicted of the peering charge beyond a
reasonable doubt.
12
For these reasons, too, then, summary judgment must be awarded to
5
defendants.
III.
FACTS RELATING TO CARRO INCIDENT
A.
Carro’s Statement of Undisputed Facts
Officer Anthony Carro, while he submits his own papers, also adopts by
reference those filed on behalf of the other defendants. I summarize here the
relevant statements in the DSUMF, ECF no. 53-3. The following facts are taken
from DSUMF ¶j 33-6 1 and Exhibits O-W.
On October 20, 2010, Officer Anthony Carro, who was off duty, was
walking his dog on Hollywood Avenue. A person approached him. Carro
recognized the person as Mr. Pittman, whom Carro had previously arrested.
Carro’s dog barked and growled as Pittman approached. The dog was
wearing a muzzle. Pittman followed Carro, but then withdrew.
Concerned that Pittman might be following him, Carro called upon
Officer Tapia. He checked the area, but did not see Pittman. Carro and Tapia
both saw Pittman in his car. As Tapia approached, Pittman swerved, almost
striking a parked car. Tapia approached the car, asked to see Pittman’s license,
and issued a warning, but not a summons.
Pittman later came to the police station to report the dog incident,
claiming that the dog had attacked him and ripped his jacket. Tapia explained
that the rip was inconsistent with damage from an animal, and also stated that
the dog had been muzzled.
Pittman sent a letter to the Metuchen Municipal Court demanding that
evidence of the encounter be preserved. He sent another letter requesting that
a complaint be filed and also requesting a change of venue. He sent a letter to
Hon. Travis Francis, IJ.S.C., of the Middlesex County Superior Court,
requesting assistance in filing a complaint against Officer Carro. Judge Francis
In his brief, Pittman states that he has been the victim of the defendants’
intentional infliction of emotional distress, a state law tort. (ECF no. 76 at 39—40) No
such cause of action is pled in the complaint; it cannot be added by way of a brief
point in response to a summary judgment motion.
5
13
replied in writing recommending that he obtain counsel and file a complaint
with the municipality. Judge Francis referred Pittman’s claim that the
Municipal Court was “hindering” him to the Presiding Municipal Judge and the
County Prosecutor.
Pittman again wrote to the Metuchen Municipal Court, not filing a
complaint, but stating that he wanted to file a complaint. Judge Price of the
Municipal Court responded in writing that Pittman would need to file a formal
complaint if he wanted the Court to take any action. Instead, Pittman sent a
Notice of Tort Claim to the Municipal Court.
B.
Pittman’s Statement of Undisputed Facts
The following facts are taken from PSMUF
¶J
25—33 (ECF no. 76 at 16—
18). I reproduce them in full:
25. On October 20,20 10 while walking in the Borough of Metuchen on
Hollywood Avenue South Bound while an individual now known as Anthony
Carro was walking his dog a Doberman Pincher, with no muzzle while coming
within five feet plaintiff was viciously attacked pulling And ripping plaintiff
jacket a navy blue jacket, the owner Mr. Carro, walked away plaintiff Although
he never said anything plaintiff recognized defendant as Metuchen Police
Officer Carro. Plaintiff would walk to his vehicle and drive away, while plaintiff
was driving Officer Octavia would stop plaintiff, s/b on Spear Street and
Woodbridge Avenue
,
I asked This Officer while I was being stopped I was asked
where I was coming from I explained To him that I was walking down
Hazelwood and was attacked by Officer Carro dog, I tried To show him my
jacket I was told to stay in the car, after giving this Officer my credentials I was
told to leave
.
I would go to the Metuchen Police Department, and request to
speak To a supervisor, in which Officer Tapia, would again explain to him what
happened he would Take my complaint and state that someone would contact
me (See Exhibit T. Operations Report Case No.1 0 10111 Civil Matter Taken by
Officer Tapia, on October 20, 2010. 2 pgs.)
14
26. Letter Plaintiff would forward to the in house Prosecutor stating what
had transpired On October 20,20 10 also asking that evidence be preserved
See Exhibit U letter dated October, 23, 2010)
27. Letter to in house Prosecutor asking to file complaint and a change of
venue due to Conflict of interest C.C. forwarded to Sandra Henn, as well as to
Honorable Judge Price Sandra Henn is the Court Administrator, (See Exhibit V
letter dated November 15, 2010,)
28. Letter forwarded to Honorable Judge Francis A.J.S.C. with
attachments asking for help Letter dated November 23, 2010. (See Exhibit W
letter dated November 23,20110)
29. Letter received from Honorable Judge Francis, dated December 1,
2010 (See Exhibit X Letter from Hon. Judge Francis dated December 1,20 10)
30. Letter dated December 13, 2010 to in house Prosecutor as well as copies to
Hon. Judge Price, Court Administrator, Hon. Judge Francis, Prosecutor Bruce
Kaplan, (See Exhibit Y Letter that was forwarded December 13, 2010.)
30. Letter dated December 13, 2010 to in house Prosecutor as well as
copies to Hon. Judge Price, Court Administrator, Hon. Judge Francis,
Prosecutor Bruce Kaplan, (See Exhibit Y Letter that was forwarded December
13, 2010.)
31. letter that was forwarded to plaintiff on December 15, 2010 from the
Hon. Judge Price stating what procedures are to be taken to pursue the matter
plaintiff would Come to police station and would not be assisted stated by the
court administrator that The matter was being investigated
.
(See letter that
was forwarded by Hon. Judge Price Dated, December 15, 2010)
32. Plaintiff would forward a Notice of Tort Claim was filed in reference to
arrest of April 7, 2010 a Notice of Tort Claim was filed against Defendants
Metuchen Police Department, Borough Of Metuchen, Lieutenant David Irizarry,
Officer Edward Mosko, Sergeant Jim Connolly, Officer Wayne Karalevich,
Officer Anthony Carro, (See Exhibit ZZ)
15
33. Plaintiff would file Notice of Tort Claim against Defendants
,
Officer
Tapia, Officer Carro, And the Borough Metuchen Police Department (See
Exhibit ZZZ)
IV.
ANALYSIS OF CARRO INCIDENT
The claim here, although it involves many facts, clearly focuses on the
alleged attack on Mr. Pittman by Carro’s dog and the failure of the police or the
Municipal Court to do anything about it. (See ECF no. 76 at 41—45) This, says
Pittman, was a deprivation of his Constitutional rights under color of law.
Giving the benefit of the doubt to a pro se plaintiff, I find a clash of proofs as to
whether the dog attacked Pittman and ripped his jacket, or only growled.
Carro first urges that there can be no claim against him pursuant to 42
U.S.C. § 1983 because he did not act under color of state law. “The traditional
definition of acting under color of state law requires that the defendant in a
§
1983 action have exercised power ‘possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law.”
W. v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 2255 (1988) (quoting United
States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043 (1941)). Acts of a
person who happens to be a state employee, but is off-duty, are not actions
“under color of law” unless some authority is exercised. See Bonenberger v.
Plymouth Twp., 132 F.3d 20, 23—24 (3d Cir. 1997) (flashing a badge might
bring off-duty actions under color of state law).
No such proof is offered here; for all that appears in either side’s papers,
Carro was walking his dog, and the dog reacted to Pittman’s approach. No
authority was exercised or apparent during this off-duty encounter with Carro’s
dog. As to this encounter, no issue of fact is raised as to action under color of
state law.
The police and the courts, who allegedly should have done something
about Carro’s complaints, are state actors. Against them, perhaps a due
process claim is intended. But no such claim is established by the evidence
16
offered by either party, as to which there seem
s to be little factual
disagreement.
Pittman dealt with the authorities over the dog incid
ent. All that
occurred, however, is that he wrote letters complain
ing of the incident and
requiring action. The authorities—the courts in parti
cular—answered his
letters explaining that if he wished to sue, he wou
ld have to file a complaint. He
never did so. I see no basis for a due process claim
.
The remaining grounds raised by the parties (imm
unity, municipal
liability, punitive damages, and so on) I need not reach
.
CONCLUSION
For the reasons stated above, the defendants’ moti
ons for summary
judgment will be granted.
Dated: March 22, 2016
United States District Ju ge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?