RIVERA v. ZWEIGLE et al

Filing 40

OPINION. Signed by Judge Kevin McNulty on 9/19/16. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DiSTRICT COURT
DISTRICT OF NEW JERSEY
WALTHER M. RIVERA,
Plaintiff,

Civ. No. 13-3024 (KM) (MAll)

V.

SERGEANT C. ZWEIGLE,

OPINION

Defendant.

KEVIN MCNULTY, U.S.D.J.
The plaintift Walther M. Rivera, is a state prisoner currently incarcerated at the Garden
State Youth Correctional Facility in Yardville, New Jersey. He is proceeding pro se with an
amended civil rights complaint filed pursuant to 42 U.S.C.

§

1983. Presently pending before this

Court is defendant Sergeant C. Zweigle’s motion for summary judgment. For the followirg
reasons, the motion for summary judgment will be granted.
I.

LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT

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); Kreschollek 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 v. Cnly, ofAllegheny
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). “[Wjith 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.” Id. at
325.
if the moving party meets its threshold burden, the opposing party must present actual
evidence that creates a genuine issue as to a material fact for trial. See 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 FEd.

Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Scheidernantle v. Slippery Rock
Univ. State Sys. ofHigher Educ., 470 F.3d 535, 538 (3d Cir. 2006) (“To prevail on a motion for
summary judgment, the nonmoving party needs to show specific facts such that a reasonable jury
couid find in that party’s favor, thereby establishing a genuine issue of fact for trial.”).
If a party fails to address the other party’s properly supported assertion of fact, the court
may consider “grant[ingj summary judgment if the motion and supporting materials—including
the facts considered undisputed—show that the movant is entitled to it.

.

.

.“

Fed. R. Civ. P.

56(e). Local Civil Rule 56.1(a) deems a movant’s statement of material facts undisputed where a
party does not respond or file a counterstatement. L. Civ. R. 56(a). A failure to dispute a party’s
statement of material facts, however, “is not alone a sufficient basis for the entry of a summary
judgment.” See Anchorage Assocs.

i’. Virgin

Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d

Cir. 1990) (holding that even where a local rule deeming unopposed motions to be conceded, the
court was still required to analyze the movant’s summary judgment motion under the standard
prescribed by Fed. R. Civ. P. 56(e)); see also Muskett v. Certegy Check Servs., inc., Civ. No. 08-

3975, 2010 WL 2710555 (D.N.J. July 6, 2010) (“In order to grant Defendant’s unopposed motion
for summary judgment, where, as here, ‘the moving party does not have the burden of proof on
the relevant issues,

.

.

.

the [Court I must determine that the deficiencies in [Plaintiffs] evidence

designated in or in connection with the motion entitle the [Defendantsj to judgment as a matter
of law.” (quoting Anchorage Assocs., 922 F.2d at 175)). As always, however, I will construe a
pro se litigant’s pleadings and contentions liberally. See generally Giles v. Kearney, 571 F.3d
318, 322 (3d Cir. 2009) (citingHainesv. Kerner, 404 U.S. 519, 520-521 (1972); Gibbs v,
Roman, 116 F.3d 83,86 n. 6 (3d Cir. 1997)).

II.

BACKGROUND

The amended complaint arises from an incident between Mr. Rivera and Zweigle that
occurred in January, 2012. In his amended complaint, plaintiff named three defendants: (1)
Sergeant Charles Zweigle
—

—

Police Officer Stanhope Police Department; (2) Lieutenant P. Zabita

Police Officer Byram Township Police Department; and (3) the Byram Township Police

Department.
The amended complaint asserted that Rivera was pulled over by Zweigle on January 26,
2012. Zweigle told him that he was looking for three black males in a black vehicle and had seen
Mr. Rivera talking to someone in his vehicle. Mr. Rivera stated in his complaint that he is a light
skinned Hispanic and that he drives a light blue car. Mr. Rivera alleges that Zabita made racial
jokes and comments about his race and threatened him with deportation. The complaint sought
monetary damages from the defendants on claims of racial profiling, illegal search and seizure,
false imprisonment and defamation.

3

In December, 2014, this Court screened the amended complaint pursuant to 28 U.S.C.

§

191 5A. Section 1915A(b)(l) permits this Court to dismiss all or part of a complaint that fails to
state a claim upon which relief may be granted. Mr. Rivera’s federal claims against Zabita and
the Byram ‘I’ownship Police Department were dismissed and this Court declined to exercise
supplemental jurisdiction over Mr. Rivera’s state law claims against those two defendants. With
respect to Zweigle, this Court dismissed Mr. Rivera’s racial profiling and defamation claims.
Flowever, this Court permitted Mr. Rivera’s claims of(a) illegal stop and search, and (b) false
imprisonment.
On those two remaining claims, Zweigle has now filed a motion for summary judgment.
Mr. Rivera has not filed a response in opposition to the motion for summary judgment.
Zweigle’s statement of material facts is therefore undisputed, and I summarize it here, with the
understanding that it does not automatically entitle Zweigle to summary judgment if review of
the record nevertheless discloses genuine, material issue of fact. See p. 2, supru.
On the night of the vehicle stop, Zweigle was informed by dispatch that there had been an
armed robbery at an Exxon station on Route 206. (See Dkt. No. 39-3 at p.83) Zweigle arrived at
the gas station shortly after the robbery had taken place and spoke to the gas station attendant.
(See Dkt. No. 39-2 at p.3) The gas station attendant told Zweigle that the perpetrators were three
black males, that they had displayed a knife, and that they headed onto Route 206 South in a
black car with New York plates. (See Dkt. No. 39-3 at p.83) The gas station attendant did not
require medical attention; Zweigle drove off in search of the robbers. (See Dkt. No. 39-2 at p.4)
Zweigle drove down Route 206 South. At the top of the on-ramp to Route 80 East he saw
two vehicles. (See Dkt. No. 39-3 at p.83) One was in the left lane, and appeared to be speeding;
the other was in the right lane and appeared to be doing the speed limit. (See Dkt. No. 39-3 at

4

p.83) The slower vehicle was a dark colored sedan with a New York registration. (See id.)
Zweigle pulled up next to the slower, dark colored vehicle with his lights and siren activated.
(See Dkt. No. 39-2 at p.4) The driver (later identified as Mr. Rivera) looked straight ahead and
ignored Zweigle. (See id.) Rivera appeared to be speaking to someone, although ZweigLe could
not see anyone else in the car. (See id.)
Zweigle then dropped back behind Rivera’s car to pull it over. Zweigle based his decision
on the following facts: the vehicle fit the description of a dark vehicle with New York license
plates, it was close proximity to the scene of the robbery, and the driver appeared to be willfully
ignoring Zweigle’s patrol car with flashing lights directly alongside his vehicle. (See id. at p.4-5)
Upon pulling the car over, Zweigle saw two other passengers who he believed must have
been ducking down to hide their presence in the car. (See id, at p.5) Zweigle saw cash and two
kitchen knives in plain view inside the car. (See Id.) All three passengers were removed from the
vehicle and Zweigle obtained the consent to search the vehicle, which was a blue Nissan. (See
id.)

The search of the vehicle yielded cash, knives and a black pull over mask. (See id. at p.6)

The three occupants of the vehicle were then arrested. (See Dkt. No. 39-3 at p.84)
Mr. Rivera challenged Zweigle’s stop of his vehicle in his state criminal proceedings by
filing a motion to suppress. A suppression hearing was then conducted. Mr. Rivera’s motion to
suppress was denied by the state court which explained as follows:
Mr. Rivera has moved for an order seeking to suppress evidence
and statements that the State obtained as a result of the search and
search of the defendant on the late evening of January 23,
January 25, 2012.
--

As we know from relevant constitutional criminal procedure, in
order for this law enforcement officer to proceed in the manner
here, the police must have an articulable, reasonable basis to
suspect criminal activity by the individual in question.

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The particularized suspicion has to be based upon an objective
observation that the person stopped has been engaging in criminal
wrongdoing.
And the Court has to examine the officer’s objective observations
and then make a determination as to whether the evidence through
those observations raises a suspicion that a particular individual
being stopped is engaged in wrongdoing. The stop has to be
temporary, no longer than necessary to effectuate the purpose of
the initial stop.
The police must use the least intrusive means reasonably available
to verify or dispel an officer’s suspicion over a short in a short
period of time.
—

And that requires an examination of the particular facts and
circumstances of the case, such as proximity of the stop in time
and place to the crime in question, as to whether the police
therefore had a reasonable and articulable suspicion.
As the evidence is presented to the Court by the video, the DVD
that the Court has observed, which is what Sergeant Zweigle
utilized in his patrol vehicle on this particular late evening, this
was a very fast happening event. You know, the call coming in
from dispatch to the Sergeant, the Sergeant being in close
proximity to the area where the call centered around, the Exxon
station on Route 206 in the southern area of Byram Township.
He immediately pulled in, and we can discern from that DVD that
we have witnesses here, the attendant was there, yelled out the
vehicle had taken off, it was three black individuals. And the
officer almost spontaneously responding to hearing that
information pulled out and headed for Route 80, which was the
indication of the direction in which the vehicle was traveling.
—

The officer was able to make the initial observation of a vehicle in
the right hand lane of travel on Route 80, that he testified was
doing the speed limit for that vicinity. And there was a vehicle
beyond that, farther eastbound, I guess, that all he could see was
taillights.
And so, he pulled up to this vehicle that was on the right hand lane,
was matching speed with the vehicle. It’s critical to note the
officer’s siren was on, his overhead lights were activated. He
looked at the operator, even he said he had his window down, so
he could get a better view. And he observed this individual
operator not making any contact with him. But, as he observe,
—

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engaging in making conversation and not seeing anyone else in the
vehicle, at this particular point in time.
So he pulls back, slows down, pulls behind the vehicle and it
pulled over shortly thereafter. And he approached the vehicle
cautiously, with his hand on his holster revolve his hand on his
firearm in its holster. And indicated the occupant should put his
hands in a position where they could be observed.
—

And he testifies that, as a result of this, he was able then to make
the observations of two other individuals that were in the vehicle,
crouched down, so that one observing that vehicle as it was
proceeding would not be able to see that there were other
occupants of the vehicle than the driver.
And in making this observation another police officer, I believe
from Mt. Olive Township had arrived, almost simultaneously with
the stop of the vehicle by Sergeant Zweigle. And the investigation
continued from that point.
—

So the question is, in terms of the initial call coming into dispatch,
what the attendant tells the Sergeant about a a black vehicle with
three black males having just left the station.
—

And the officer in in pursuit, in hot pursuit if you will and then
coming upon this dark colored vehicle, and I believe the attendant
did indicate very quickly, as there was this brief encounter between
the officer and the attendant, that the vehicle had New York plates.
He comes upon this dark colored vehicle with New York plates
and sees the operator, whom he initially believes to be an
individual with black skin. He’s now testified in observing the
photo and observing Mr. Rivera that his skin is brown.
—

But in any event, he sees him talking to no one in particular. He
finds that to be extremely odd. And he bases that upon his years of
experience, most of which I believe he testified is in terms of the
night shift, over the course of his career. And given those
circumstances and those objective facts, he believes that these are
the individuals who were that this individual and others were the
persons engaged in this robbery incident at the Exxon station.
—

And, of course, in pulling over the vehicle and approaching the
vehicle, he makes the observations of the other two individuals in
the vehicle, whose photographs have been marked into evidence,
similar complexion and appearance, the Court notes by reason of
the photos of the other individuals, to that of the defendant.
7

In the Court’s judgment, these facts support a finding that this
officer indeed had an articulable and reasonable suspicion to
justify this stop of this vehicle. The vehicle was a dark blue, as I
observed the vehicle. Not only in the photographs but even the
1)VD that I observed, when the officer’s headlights were on the
vehicle you could see that it was a dark blue vehicle. It certainly
was a dark colored vehicle. And it is to be noted, as well, it had
the New York plates. We know about the number of occupants
now, based upon the observation.
—

I think what’s critical here is what the officer testified to that was
so unusual to him. An individual operator with no headset on, who
was engaging in what appeared to be conversation with no one in
particular.
And the officer being aware of the call coming in of three
individuals, and one of whom is observed, but clearly the officer
had the right to draw inferences, from this set of circumstances
based upon his experience, that the others may well have been in
the vehicle, as indeed they were.
So the court will deny the motion for the reasons stated.
(Dkt. No. 39-3 at p.2 I7-23)
After the state court denied the motion, Mr. Rivera pled guilty to armed robbery and was
sentenced to twelve years’ imprisonment. (See Dkt. No. 39-2 at p.6)
IlL

DISCUSSION

‘l’he only claims remaining in this case are Mr. Rivera’s unlawful stop and false
imprisonment claims against Zweigle. Accordingly, this Court need not engage in an analysis of
Zweigle’s arguments that he is entitled to summary judgment on Mr. Rivera’s equal protection
claim, which never made it past this Court’s

§

1915A screening.

A. Heck v. Humphrey
Zweigle argues in part that Mr. Rivera’s remaining claims are barred by Heck v.
Humphrey, 512 U.S. 477 (1994). I recently summarized the Heck doctrine as follows:

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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, fbr
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 omitted).
Pittman v. lvtetuchen Police Dep’!, No. 12-2044, 2016 WL 1122671, at *5 (D.N.J. Mar. 22,
2016). “[A] false arrest or false imprisonment claim may be maintained without showing a
favorable determination, but only if it does not ‘necessarily implicate the validity of a conviction
or sentence.” Mosby v. O’Brie, 532 F. App’x 84, 86 (3d Cir. 2013) (quoting Montgomery v. De
Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998)) (additional citation omitted). Indeed, as one court
has noted, “Heck does not bar a claim where a plaintiff seeks damages for the defendant’s use of
improper procedures, so long as the validity of a plaintiff’s conviction is not called into
question.” Rosembert v. Borough ofEast Landsdowne, 14 F. Supp. 3d 631, 640 (E.D. Pa. 2014)
(citing McBride v. Cahoone, 820 F. Supp. 2d 623, 632 (E.D. Pa. 2011). Nevertheless, if a
successful claim “could result in the suppression of essential evidence discovered.

.

.

it

necessarily calls into question the validity of the conviction.” Short v. Chief Shown Payne &
Officer Parker, No. 15-5873, 2016 WL 1594791, at *3 (E.D. Pa. Apr. 20, 2016) (citation
omitted).
In this case, absent a showing that Zweigle had reasonable suspicion to pull over Mr.
Rivera’s car, the evidence tying him to the robbery found in his vehicle, such as the cash, knives
and mask, would have been suppressed. But they were not suppressed; suppression was denied,
9

after fact finding, by the State court in the criminal case. That Court found that the stop was not
unlawful, and based on the record both in that court and here, I agree. Success on Mr. Rivera’s
unlawful stop and search claim would necessarily implicate the validity of his armed robbery
conviction. Technically, a person might be seized without probable cause, and yet be validly
convicted later on. For this reason, a false imprisonment claim does not always fall under the
Heck doctrine. Here, however, it does. The chief physical evidence fell into the officer’s hands at
the time of, and as a result of, the stop and arrest. Thus I find that the false imprisonment claim,
too, would implicate the validity of the armed robbery conviction, and is barred by Heck. See,
e.g., Short, 2016 WL 1594791, at *4 (“Because Short pled guilty, a finding that he was arrested
without probable cause would likely result in the suppression of evidence which ultimately led to
the issuance of his arrest warrant, and therefore necessarily imply the invalidity of his
conviction.”); Rosenbert, 14 F. Supp. 3d at 641 (“As Plaintiff pleaded guilty to driving under the
influence of alcohol, a finding that he was searched or arrested without probable cause, which
would likely result in the suppression of his blood alcohol level, would necessarily imply the
invalidity of the conviction.”).
B. Reasonable Suspicion/Probable Cause
Even if Mr. Rivera’s claims were not barred by Heck, Zweigle would be entitled to
summary judgment, because at the time he stopped Rivera’s vehicle, he had reasonable
suspicion, which quickly developed into probable cause for arrest.
Law enforcement officers may make an investigative stop of a
vehicle upon “reasonable suspicion” of wrongdoing. United States
v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 83 L. Ed. 2d 604
(1985). Following a valid traffic stop, “[p]olice have probable
cause to arrest if the circumstances are sufficient to cause a prudent
person to believe that a crime has been committed and the person
to be arrested committed it.” United States v. Stubbs, 281 F.3d 109,
122 (3d Cir. 2002).
Probable cause and reasonable suspicion
..

.

10

are both to be evaluated based upon the “totality of the
circumstances.” United States v. Arvizu, 534 U.S. 266, 275, 122 S.
Ct. 744, 151 L. Ed. 2d 740 (2002); Illinois v. Gates, 462 U.S. 213,
230—31, 103 S. Ct. 2317,76 L. Ed. 2d 527 (1983). Officers are
permitted to draw from “their own experience and specialized
training to make inferences from and deductions about the
cumulative information available.” Arvizu, 534 U.S. at 273, 122 S.
Ct. 744.
United Stales v Elmore, 548 F. App’x 832, 836 (3d Cir. 2013). Reasonable suspicion is less
demanding than probable cause to arrest; for an investigatory stop, an officer need only have “an
articulable basis for believing that the stoppee has engaged in criminal activity.” United States v.
Jones, 506 F. App’x 128, 131 (3d Cir. 2012) (citing United Stales v. DeJIn-Colina, 464 F.3d
392, 396 (3d Cir. 2006)).
In this case, Zweigle was told by the gas station attendant shortly after the armed robbery
that three black men had committed the robbery, had displayed a knife, and had departed in a
dark vehicle with New York plates onto Route 206 South. Shortly thereafter, Zweigle pulled next
to a dark colored vehicle with New York plates with his siren and lights on. The driver did not
respond, but seemed to be talking to someone in the car whom Zweigle could not see. That was a
sufficient reasonable-suspicion basis for a brief investigatory car stop. The complaint alleges that
Mr. Rivera’s car is blue, and that he is actually somewhat light-skinned and Hispanic, not
African-American. The state court found, however, that the car was dark blue, and the stop took
place at night based on the officer’s view inside a traveling automobile. These details, which in
any event are not supported by evidence or an affidavit, do not detract from reasonable
suspicion. Accordingly, Zweigle is entitled to summary judgment on Mr. Rivera’s unlawful stop
claim.

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To the extent that Mr. Rivera is also asserting an unlawful search claim, there is no
dispute of material fact in the record that Zweigle saw the cash arid knife in plain sight, and that
in any event Rivera consented to the search of his vehicle.
Zweigle is also entitled to summary judgment on plaintiffs false imprisonment claim.
False imprisonment requires a plaintiff to show that he was (1) arrested or detained against his
will (2) without proper legal authority or justification.’ See Leang v. Jersey City Bd ofEduc.,
198 N.J. 557, 591, 969 A.2d 1097 (2009). As indicated above, Zweigle had proper justification
fur the investigatory stop because he had reasonable suspicion. To the extent Rivera may be
alleging that the car stop itself constituted false imprisonment, that claim must fail.
Mr. Rivera may also be asserting that his subsequent arrest, or his later detention up to
the time of being charged, constituted false imprisonment. Probable cause for arrest is an
absolute defense to the tort of false imprisonment. See D’Arrigo v. Glaucesier City, No. 04—
5967, 2007 WL 1755970, at *8 n.12 (D.N.J. June 19, 2007) (citing Wildoner v. Borough of
Ramsey, 162 N.J. 375, 744 A.2d 1146 (2000)).
For the reasons stated above, Zweigle indisputably developed probable cause to arrest
very soon after pulling over the car. The dark car, the three occupants, Rivera’s behavior, the
knife and mask, and the cash would justify a reasonable officer in believing that Rivera was
involved in the recent robbery.
A claim based on any later detention shares the additional infirmity of being bound up
with the criminal charges and guilty plea. The Third Circuit has recognized that “a guilty plea—
even one for a lesser offense—does not permit a later assertion of no probable cause.” Walker v.
‘There does not appear to be any meaningful distinction between a common law and a 1983
§
claim for false imprisonment. See Grandizio v. Smith, No. 14-4868, 2015 WL 58403, at *4 n.2
(D.N.J. Jan. 5,2015) (citing Wildoner v. Borough of Ramsey, 162 N.J. 375, 389, 744 A.2d 1146
(2000); Groinan v. Twp. ofManalapan, 47 F.3d 628, 636 (3d Cir. 1995)).
12

ClearfIeldCnty, Dist. Attorney, 413 F. App’x 481, 483 (3d Cir. 2011) (citing Donahue v. Gavin,
280 F.3d 371, 383 (3d Cir. 2002)). Because he pled guilty to armed robbery, and because he
makes no showing that the nature or quality of evidence changed after the arrest, any ongoing
claim of false imprisonment cannot survive. See McGann v. Collingswood Police Dep’!, No. 10—

3458, 2012 WL 6568397, at *10 & n.1 I (D.N.J. Dec. 17, 2012) (findingthat plaintiff’s false
imprisonment claims failed because of plaintiffs guilty plea); Ferry v. Barry, No. 12—009, 2012
WL 4339454, at *5 (D.N.J. September 19, 2012) (same). Therefore, Zweigle is entitled to
summary judgment on Mr. Rivera’s remaining claims for these reasons as well.
2

IV.

CONCLUSION

For the foregoing reasons, Zweigle’s motion for summary judgment will be granted. An
appropriate order will be entered.

/

DATED: September 19, 2016

(/

KEVIN MCNULTY
United States District Judge

2

Because Zweigle is entitled to summary judgment on Mr. Rivera’s claims for the reasons
discussed above, this Court need not analyze his additional arguments for why he is entitled to
summary judgment, such as the Rooker-Feidman doctrine or qualified immunity. Additionally,
Zweigle argues that Mr. Rivera’s state law claims should be dismissed because he failed to file a
notice of tort claim. However, in light of this Court’s discussion of his unlawful stop/search and
false imprisonment claims discussed above, this Court does not find that any state law claims are

remaining in this action.

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