Andros v. Gross , 294 F. App'x 731 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-22-2008
Andros v. Gross
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2259
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Andros v. Gross" (2008). 2008 Decisions. Paper 509.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/509
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2259
___________
JAMES L. ANDROS, III, individually and as Father and Natural Guardian on behalf of
Meghan Elizabeth Andros and Elizabeth Andros, minors,
Appellant
v.
M.D. ELLIOT M. GROSS; BRUCE K. DESHIELDS, SGT.; ELADIO ORTIZ, LT.;
JEFFREY S. BLITZ, ESQUIRE; MURRAY TALASNIK, ESQUIRE; M.D. HYDOW
PARK; BARBARA FENTON; COUNTY OF ATLANTIC; STATE OF NEW JERSEY;
JOHN DOE, INVESTIGATORS 1-50, individually, jointly, severally and in the
alternative; CHRISTOPHER WELLMAN, CPT.
___________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-cv-01775)
District Judge: Honorable Jerome B. Simandle
___________
Submitted Under Third Circuit L.A.R. 34.1(a),
September 11, 2008
Before: SLOVITER, FUENTES, and ALDISERT, Circuit Judges.
(Opinion Filed: September 22, 2008)
OPINION OF THE COURT
-1-
FUENTES, Circuit Judge:
In April 2001, Appellant James Andros (“Andros”), a former Atlantic County
police officer, was arrested by officers from the Atlantic County Prosecutor’s Office for
murdering his wife, Ellen Andros. He was indicted on that charge by grand jury in June
2001, and lost both his job and custody of his two daughters. In late 2002, a follow-up
medical exam revealed that Ellen Andros had not died from asphyxiation, as the county’s
medical examiner had originally concluded, but rather from a spontaneously dissecting
coronary artery, an extremely rare form of heart attack. The charge against Andros was
immediately dismissed.
In April 2003, Andros filed suit against employees of the Atlantic County Medical
Examiner’s Office, along with county prosecutors and police officers and the State of
New Jersey, asserting a number of federal and state law claims related to his allegedly
illegitimate arrest. Andros now challenges the District Court’s award of summary
judgment in favor of certain prosecutor and police officer defendants—attorneys Jeffrey
Blitz and Murray Talasnik, Sergeant Bruce DeShields, and Lieutenant Eladio Ortiz—and
the dismissal of his claims for unconstitutional interference with familial relations. For
the reasons that follow, we will affirm the District Court’s rulings.
I.
The District Court held that the prosecutors, Talasnik and Blitz, were acting in a
prosecutorial role in deciding to charge Andros with murder and thus had absolute
-2-
immunity to any charges related to their conduct at that point. Secondly, the Court found
that the appellees had probable cause to arrest Andros and thus were entitled to qualified
immunity from most of the federal claims. Finally, the Court dismissed without prejudice
the counts relating to alleged unconstitutional interference with family relations for failure
to plead those claims with sufficient specificity. On a motion for partial reconsideration of
the summary judgment order, the District Court extended its qualified immunity ruling to
dismiss a number of the state law claims against appellees.
We have plenary review over the District Court’s award of summary judgment.
Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007). We construe all disputed facts in favor
of Andros, the non-moving party, and will affirm the district court’s grant of summary
judgment only if there is “‘no genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.’” Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004)
(quoting Fed. R. Civ. P. 56(c)). We also have plenary review of the dismissal of the
familial interference claims. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d
315, 318 (3d Cir. 2008).
II.
Because we write exclusively for the parties, we discuss only the facts necessary for
our analysis below. The primary basis for Andros’s claims was his charge that the
defendants investigated and indicted him for his wife’s murder despite their knowledge
that he was at a local bar, the Beach Bar and Grill (“the Beach Bar”), twenty minutes from
-3-
his home, at the time of Ellen’s death.
A.
Prosecutors Talasnik and Blitz are entitled to absolute immunity from Andros’s
claims to the extent they rest on the prosecutors’ decision to charge Andros with murder.
A prosecutor has absolute immunity for conduct “‘intimately associated with the judicial
phase of the criminal process,’” as part of his or her role as an advocate, but not for
investigative acts. Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)). The Supreme Court has expressly held that a
prosecutor’s decision to initiate a prosecution is the action of an advocate participating in
the judicial process. Imbler, 424 U.S. at 431. Therefore, in that role a prosecutor has
absolute immunity from suit under § 1983. Id. (extending absolute immunity to prosecutor
who prosecuted individual despite presence of allegedly exonerating evidence); see also
Kulwicki v. Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992) (citing Imbler). Although the
Supreme Court has stated that “[a] prosecutor neither is, nor should consider himself to
be, an advocate before he has probable cause to have anyone arrested,” we hold below
that probable cause existed to arrest Andros, making that consideration irrelevant to our
analysis. Buckley, 509 U.S. at 274.
Similarly, any misconduct by Talasnik or DeShields in their presentation to the
grand jury falls within the protection of absolute immunity. As to Talasnik, the Third
Circuit has stated that “soliciting false testimony from witnesses in grand jury proceedings
-4-
and probable cause hearings is absolutely protected.” Kulwicki v. Dawson, 969 F.2d
1454, 1465 (3d Cir. 1992). With respect to DeShields, he is subject to absolute immunity
from civil suit as a witness. See id. at 1467 n.16 (clarifying that witness immunity extends
to investigators testifying in a grand jury proceeding); see also Williams v. Hepting, 844
F.2d 138, 141 (3d Cir. 1988).
B.
We will also affirm the District Court’s ruling that the defendants had probable
cause to arrest Andros. 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) (citations omitted).
This standard requires “more than mere suspicion,” but not “evidence sufficient to prove
guilt beyond a reasonable doubt.” Id. at 482-83. In gauging probable cause, “‘[a]n officer
contemplating an arrest is not free to disregard plainly exculpatory evidence, even if
substantial inculpatory evidence (standing by itself) suggests that probable cause exists.’”
Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000) (quoting Kuehl v. Burtis, 173 F.3d
646, 650 (8th Cir. 1999)).
In this case, the defendants reasonably thought Andros had murdered his wife.
Contrary to Andros’s allegations, they need not have ignored the available alibi and time
of death evidence in order to believe him guilty. Rather, they simply gave that evidence a
-5-
different construction, one that was reasonable at the time. Compare Kuehl v. Burtis, 173
F.3d 646, 651 (8th Cir. 1999) (concluding no probable cause existed where police officer
refused to even listen to witness’s and suspect’s alternative account of events); Baptiste v.
J. C. Penney Co., 147 F.3d 1252, 1256 (10th Cir. 1998) (finding no probable cause where
officer ignored videotape clearly depicting conduct in question in favor of second-hand
account of security guards as to their observations of alleged shoplifter). Nor is this a case
where further reasonable investigation would have revealed Andros’s innocence; the
defendants fully explored Andros’s potential alibi and available information regarding
Ellen’s time of death. Compare Bevier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)
(holding that police had unreasonably disregarded possible clarifying evidence by
refusing to question easily available witnesses to suspected child neglect); Bigford v.
Taylor, 834 F.2d 1213, 1219 (5th Cir. 1988) (reversing district court’s ruling that seizure
of truck was reasonable where “minimal further investigation” would have shown it was
not stolen).
Andros’s alibi was not flawless. Witness accounts as to when he left the Beach Bar
varied widely enough that the arresting officers might reasonably have thought Andros
arrived home as early as 3:45 or 4 a.m.1 Meanwhile, the time of death evidence available
1
The District Court rested its ruling on the lack of definitive evidence confirming
that Andros had not left the Beach Bar for the forty-five minutes it would have taken him
to get home before 4 a.m., murder his wife, and return. Although the defendants did not
proffer the theory that Andros left and returned to the bar, our inquiry into probable
cause is an objective one, independent of what the investigators subjectively believed.
-6-
at the time also was not as conclusive as Andros would have us believe. The medical
examiner’s statement to investigators that Ellen Andros must have died between 1:45 and
2:15 a.m. was in part predicated on their report that she was automatically signed off her
internet account around 2:20 a.m., information that was thrown into serious doubt by
America Online’s later verification that Ellen had actively logged off. Even the medical
examiner’s less specific estimate that Ellen Andros died between two and five hours after
her last meal at 10 p.m., and thus was “highly unlikely” to have died at 4 a.m., did not
render it logically impossible that she was killed by Andros when he arrived home around
that time. Moreover, personnel from the county medical examiner’s office had made
conflicting observations as to some of the other physical evidence, such as the body’s
level of rigor.
Given the defendants’ foundational beliefs—that Ellen Andros was the victim of a
homicide, that the murderer was able to enter the house without breaking in, that Ellen did
not struggle even enough to wake up her daughters in the same room, and that Andros had
in the past treated Ellen abusively and even threatened her life—it was reasonable for
them to rely on the possibility that the medical examiner’s time of death estimate was not
perfect and conclude that Andros murdered Ellen when he returned home around 4 a.m.
See Blaylock v. City of Philadelphia, 504 F.3d 405, 411 (3d Cir. 2007). Still, since we
find the defendants’ own theory that Andros murdered Ellen upon returning home from
the bar at 4 a.m. to be reasonable in light of the evidence available at the time, we need
not address this alternative scenario.
-7-
Though witness accounts and medical evidence made this scenario unlikely, it was not
impossible. In hindsight, with the knowledge that Ellen’s death was accidental, the
defendants’ theory may seem unconvincing, but at the time it provided the only
reasonable explanation of Ellen Andros’s death. See Graham v. Connor, 490 U.S. 386,
396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.”); Gilles v. Davis, 427 F.3d 197, 207 (3d Cir. 2005) (“The reasonableness of
the officer's belief should be judged from that on-scene perspective, not with the perfect
vision of hindsight.”).
Finally, Andros contends that the police unreasonably failed to pursue the
possibility that Calvin Gadd, Ellen’s “secret boyfriend,” (Appellees’ Br. at 12) might have
committed the murder. Gadd told the police that he had been home with his son that night
and that no one could verify his whereabouts, a statement that was accepted without
further investigation. However, “the law does not require that a prosecutor explore every
potentially exculpatory lead before filing a criminal complaint or initiating a prosecution.”
Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 251 (3d Cir. 2001).
Additionally, in light of our knowledge that Ellen died of natural causes, it is clear that
even the most thorough follow-up on Gadd’s story would not have revealed that he
committed the murder instead of Andros.
Overall, we are satisfied with the District Court’s conclusion that a reasonable jury
-8-
could not find that the above circumstances were insufficient to support a reasonable
belief that Andros had murdered his wife. See Sherwood v. Mulvihill, 113 F.3d 396, 401
(3d Cir. 1997) (“The district court may conclude in the appropriate case . . . that probable
cause did exist as a matter of law if the evidence, viewed most favorably to Plaintiff,
reasonably would not support a contrary factual finding.”). The defendants’ conclusion
was a reasonable one based on the facts available at the time, even if it would later prove
incorrect.
C.
The District Court ruled that Andros’s complaint failed Rule 8(a)(2)’s notice
pleading standard with respect to his federal and state claims of deprivation of due
process through interference with the family relationship. In so doing, the District Court
did not impose a heightened pleading standard on the plaintiff. Andros’s allegations
regarding the roles of Blitz, Talasnik, and DeShields in his child custody proceedings,
themselves relatively vague, fail to take the necessary step of pleading a core element of
his claims: how the defendants’ actions, right or wrong, subverted the due process
afforded to Andros in the form of a procedurally proper custody hearing. Without
information on that key aspect of the familial interference claims, the defendants’ ability
to assert any relevant defenses, such as qualified immunity or failure to state a claim, was
-9-
compromised.2 In re Tower Air, Inc., 416 F.3d 229, 237 (3d Cir. 2005) (“A plaintiff
should plead basic facts, such as they are, for those are ‘the grounds’ upon which the
plaintiff's claim rests. Even at the pleading stage, a defendant deserves fair notice of the
general factual background for the plaintiff's claims.”).
III.
For the foregoing reasons, we affirm the judgment of the District Court
2
Notably, Andros did not take advantage of his opportunity to amend these claims
to include more specific factual allegations as to this issue.
-10-