TILLERY v. WITTEVRONGELS et al
OPINION. Signed by Judge Susan D. Wigenton on 5/10/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-2366 (SDW)
SRG. MIKE WITTEVRONGELS, et al.,
WIGENTON, District Judge:
Currently before the Court is the complaint of Plaintiff, Kareem Tillery. (ECF No. 1). As
Plaintiff is a state prisoner who has been granted in forma pauperis status, this Court is required
to screen his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Pursuant to that statute, the Court
must dismiss Plaintiff’s claims if they are frivolous, malicious, fail to state a claim for relief, or
seek damages from a defendant who is immune. For the reasons set forth below, this Court will
dismiss Plaintiff’s complaint without prejudice.
Plaintiff, Kareem Tillery, seeks to sue two police officers, Sergeant Wittevrongels and Jim
Purcell, and their employer, the Union Township Police, based on a video which was used against
him at trial. (ECF No. 1 at 6-7). Although it is not clear from the complaint what charges Plaintiff
faced, or exactly how the video was relevant to Plaintiff’s trial, Plaintiff states that part of his trial
concerned an apparent traffic stop, during which Wittevrongels was fitted with a camera and
microphone. (Id.). This camera recorded the course of the interaction between Wittevrongels, the
other officers and Plaintiff. (Id.). This video was apparently played at Plaintiff’s trial, and that
trial ultimately resulted in Plaintiff being convicted. (Id.). While the video was used against
Plaintiff at trial, Plaintiff contends that the video produced at trial had been edited to remove
exculpatory portions favorable to Plaintiff. (Id.). Had those allegedly missing exculpatory
portions of the video been shown, Plaintiff asserts that he would have likely been acquitted. (Id.).
Plaintiff therefore seeks to raise a claim for “spoliation” or the alteration or destruction of the
portions of the tape which were edited out for trial against Wittevrongels and Purcell, the officer
who affirmed the accuracy of the video during discovery. (Id.).
A. Legal Standard
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), or seeks
damages from a state employee, see 28 U.S.C. § 1915A. The PLRA directs district courts to sua
sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from such relief. This action
is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) because Plaintiff
has been granted in forma pauperis status.
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232
(3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App’x 159,
162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). According to the Supreme Court’s decision
in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to show that the claim is facially
plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation 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.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
Moreover, while pro se pleadings are liberally construed, “pro se litigants still must allege
sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013) (citation omitted) (emphasis added).
Plaintiff seeks to make claims against defendants for alleged violations of his constitutional
rights pursuant to 42 U.S.C. § 1983. “To establish a claim under 42 U.S.C. § 1983, a plaintiff must
demonstrate a violation of a right protected by the Constitution or laws of the United States that
was committed by a person acting under the color of state law.” Nicini v. Morra, 212 F.3d 798,
806 (3d Cir. 2000); see also Woodyard v. Cnty. of Essex, 514 F. App’x 177, 180 (3d Cir. 2013)
(section 1983 provides “private citizens with a means to redress violations of federal law
committed by state [actors]”). “The first step in evaluating a section 1983 claim is to ‘identify the
exact contours of the underlying right said to have been violated’ and to determine ‘whether the
plaintiff has alleged a deprivation of a constitutional right at all.’” Nicini, 212 F.3d at 806 (quoting
County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)). Here, Plaintiff seeks to assert
claims against two police officers and the Union Township Police based on his claim that the police
altered the evidence used against him at trial to exclude exculpatory evidence.
Specifically, Plaintiff asserts that police officers edited or otherwise altered a video tape
which was used against him at trial to exclude portions of the tape which he alleges were
exculpatory, and directly states that this resulted in his “wrongful” conviction.
complaint therefore appears to be asserting one of two types of claims against the officers and
police department – either a claim for malicious prosecution or a Fourteenth Amendment Due
Process claim based on the alteration, fabrication, or destruction of evidence. To the extent that
Plaintiff sought to bring claims against Defendants for malicious prosecution, such a claim would
by necessity fail because Plaintiff has not pled one of the key elements of such a claim – favorable
termination. See Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014) (malicious prosecution
requires Plaintiff to plead that defendants initiated criminal proceedings without probable cause
and for an improper purpose, and that these proceedings terminated in his favor). Because a
plaintiff cannot proceed on a malicious prosecution claim unless his prosecution terminated in his
favor, and because Plaintiff states that he was convicted and that his prosecution did not terminate
in his favor, a claim for malicious prosecution is foreclosed until such time as Plaintiff has had his
“wrongful” conviction invalidated. Id.
The other potential claim Plaintiff may be attempting to raise is a Due Process claim based
on the destruction, alteration, or fabrication of evidence which resulted in his conviction at trial.
A criminal defendant may pursue a claim for the use of altered, destroyed, or fabricated evidence
at his trial under the Due Process clause where he can show that the Defendants altered or
fabricated evidence against him for use at trial, and that this evidence was ultimately used against
him at trial. Id. at 292-95; Black v. Montgomery Cnty., 835 F.3d 358, 369 n. 9, 370-71 (3d Cir.
2016). Such a claim also has an additional element which depends on the outcome at trial. Black,
835 F.3d at 370-71. Where, as here, the allegedly altered evidence resulted in a conviction, the
plaintiff must show that “there is a reasonable likelihood that, without the use of [the altered]
evidence, [he] would not have been convicted.” Id. at 370 (quoting Halsey, 750 F.3d at 294).
While the Third Circuit has not explicitly held that there is a favorable termination
requirement for such a claim, the requirement that a convicted plaintiff show that there is a
reasonable likelihood he would not have been convicted absent the Due Process violation
implicates the long standing rule that a plaintiff may not challenge his conviction via a § 1983
complaint. See Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (a federal civil rights action “will not
lie when a state prisoner challenges the fact or duration of his [conviction or] confinement” and §
1983 cannot be used by a prisoner to seek either his “immediate release” or a “shortening” of his
term of confinement); Heck v. Humphries, 512 U.S. 477, 486-87 (1994); Preiser v. Rodriguez, 411
U.S. 475, 482, 489 (1973). Under the Heck/Preiser/Wilkinson doctrine, a plaintiff may not use §
1983 to raise a claim which either directly seeks to undo his conviction, or which seeks to raise a
claim for money damages which would impugn the validity of his conviction or sentence.
Wilkinson, 544 U.S. at 80-81; Heck, 512 U.S. at 486-87.
Thus, a § 1983 plaintiff cannot proceed on a claim for money damages without first
invalidating his conviction through state process or a habeas corpus petition where his claim’s
success would undermine or impugn the validity of this conviction even if he seeks only money
damages. As explained above, the implied invalidity of the conviction arising out of altered
evidence is exactly what a plaintiff is required to plead to proceed on a fabricated/altered evidence
claim – i.e. that there is a reasonable likelihood that he would not have been convicted absent the
use of that fabricated evidence. Black, 835 F.3d at 370. Thus, where a plaintiff raises a claim for
money damages asserting that altered or fabricated evidence was used against him at trial and
resulted in his conviction, that claim is barred by the Heck doctrine unless and until he has his
conviction arising out of that evidence invalidated. 1 Wikinson, 544 U.S. at 80-81; Heck, 512 U.S.
at 486-87; see also Wright v. City of Philadelphia, --- F. Supp. 3d ---, ---, No. 16-5020, 2017 WL
167970, at *7-8 (E.D. Pa. Jan. 17, 2017). Because Plaintiff pleads that he would not have received
his “wrongful” conviction absent the allegedly altered evidence, his claim is barred until he has
his conviction invalidated, and his claim must be dismissed without prejudice as a result. 2
While it is not clear whether favorable termination is an element of an altered/fabricated evidence
claim, a plaintiff who was convicted in the trial in which the altered evidence was used who has
not secured a favorable termination is caught in a catch-22 – either he fails to plead that there is a
reasonable likelihood that he would not have been convicted absent the allegedly altered evidence
or by successfully pleading such a claim he establishes that his claim is barred by Heck unless and
until his conviction is invalidated. In either case, his case would need to be dismissed, either for
failure to state a claim or as Heck barred. Thus, although favorable termination may not be a
technical requirement of a fabricated/altered evidence claim, it is essentially a de facto requirement
to proceed on such a claim.
While this is sufficient to establish that Plaintiff’s claims must be dismissed without prejudice in
their entirety, this Court also notes that the Union Township Police are not a proper defendant in
a § 1983 matter as a police department is not considered a separate entity from the municipality to
which it belongs. See, e.g., Rivera v. Zwiegle, No. 13-3024, 2014 WL 6991954, at *3 (D.N.J. Dec.
9, 2014). Thus, the Union Township Police would have to be dismissed with prejudice as an
improper defendant in any event.
For the reasons stated above, Plaintiff’s complaint (ECF No. 1) is DISMISSED WITHOUT
PREJUDICE in its entirety. An Appropriate order follows.
Dated: May 10, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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