Tucker v. New York Police Department , 408 F. App'x 513 ( 2010 )

ALD-299 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-1892
EMERSON TUCKER,
Appellant
v.
NEW YORK POLICE DEPARTMENT; DEXTER HONORA, New York Police Detective,
Badge #2196; STEVEN, New York Police Detective; THOMAS, New York Police Det.;
NEW YORK POLICE DETECTIVES, JOHN DOE # 1 TO 6; NEW YORK POLICE
DETECTIVES, #84 AT 300 GOLD STREET IN BROOKLYN, N.Y.;
CITY OF BROOKLYN; THE OFFICE OF THE DISTRICT ATTORNEY, KINGS
COUNTY; CITY OF NEW YORK; OFFICE OF THE DISTRICT ATTORNEY, NEW
YORK; DISTRICT ATTORNEY, NEW YORK COUNTY; MIKE BLOOMBERG, Mayor
of New York City; NEW YORK CITY DEPARTMENT OF CORRECTIONS; MARTIN
HORN; COMMISSIONER OF NEW YORK CITY DEPT. OF CORR.;
CIVILIAN COMPLAINT REVIEW BOARD (C.C.R.B.); UNIDENTIFIED JOHN/JANE
DOES OF THE CITIES OF BOTH NEW YORK AND BROOKLYN; CITY OF NEWARK,
N.J.; POLICE DEPARTMENT OF NEWARK, N.J.; MAYOR OF CITY OF NEWARK,
N.J.; PAULA DOW, Essex County Prosecutor; CHRIS CHRISTIE, Governor of New Jersey;
UNIDENTIFIED JOHN/JANE DOES OF THE CITY OFNEWARK, N.J.; CITY OF
CHICAGO; JOHN CLIMACK, Detective; CARLO, Detective; JODY P. WEIS,
Superintendent of Police of Chicago; OFFICE OF DISTRICT ATTORNEY, COOK
COUNTY; ANITA ALVERZ, District Attorney, Cook County; UNIDENTIFIED
JOHN/JANE DOES OF CHICAGO, ILLINOIS; THOMAS DART, Sheriff of Cook County;
MARGO GREEN, a Licence Day-Care Provider of the State of New Jersey; DAY-CARE
CENTER OF MARGO GREEN; CHICAGO SUN TIMES NEWSPAPER;
CHICAGO TRIBUNE NEWSPAPER; STAR-LEDGER NEWSPAPER OF NEWARK, N.J.;
NEW YORK TIMES NEWSPAPER; NEW YORK POST NEWSPAPER; NEW YORK
DAILY NEWSPAPER; CBS TELEVISION NEWS BROADCAST; ABC TELEVISION
NEWS BROADCAST; NBC TELEVISION BROADCAST; CNN CABLE NEWS
NETWORK; JOHN/JANE DOE #7 AND 8; JOHN DOE #4 AND 5; N.Y.P.D. DETECTIVE
SUPERVISOR; RAY KELLY, COMMISSIONER OF THE N.Y.P.D.; MIKE PALLADINO,
PRESIDENT OF THE DETECTIVES ENDOWMENT ASSOCIATION OF THE N.Y.P.D.;
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NEW YORK COUNTY; OFFICE OF DISTRICT ATTORNEY; ROBERT M.
MORGENTHAN; JOHN/JANE DOE #1 AND 2, OFFICERS OF N.Y.C. DEPT. OF CORR.;
ELIOT SPITZER, FORMER GOVERNOR OF THE STATE OF NEW YORK; SHERMAN
HOTEL; KINGS COUNTY, NEW YORK; ESSEX COUNTY; CHICAGO POLICE
DEPARTMENT; ERIKA MARTINEZ, JOURNALIST; COOK COUNTY, ILLINOIS, AN
ILLINOIS MUNICIPAL CORPORATION; ROD R. BLAGOJEVICH, FORMER
GOVERNOR OF THE STATE OF ILLINOIS; CHICAGO TRIBUNE COMPANY.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-08-cv-02156)
District Judge: Honorable Dennis M. Cavanaugh
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 30, 2010
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed: October 14, 2010)
OPINION
PER CURIAM
Emerson Tucker, a prisoner at Cook County Jail in Chicago, Illinois, appeals from
several orders of the District Court in this pro se civil rights action. The orders dismissed the
case as to most of the defendants and stayed the proceedings as to another defendant. The
orders also denied Tucker’s motions for injunctive relief, along with several other motions
that he had filed. For the following reasons, we will dismiss the appeal as to many of these
claims for lack of jurisdiction, and we will summarily affirm the others.
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I.
In May 2007, two New York detectives approached Tucker in Newark, New Jersey,
and informed him that he was wanted for questioning in connection with a homicide
investigation in New York. Tucker accompanied the detectives to New York, where he was
eventually arrested and charged with murder. During this time, the police conducted a search
of Tucker and gave him an inventory slip for all of his property. Before standing trial in New
York, Tucker was extradited to Chicago, where a warrant had been issued for him in
connection with another murder. He is currently incarcerated in Chicago awaiting trial for
that charge.
In May 2008, Tucker filed a pro se civil rights action pursuant to 28 U.S.C. §
1983,1 alleging that many of his constitutional rights had been violated in connection with
his arrest in New York and extradition to Illinois. He named forty-five defendants, including
the detectives who had approached him in New Jersey, various government officials in three
states, and several news organizations. His allegations included, among other things, false
arrest, excessive force, wrongful retention of property, interference with the administration
of justice, defamation, racial discrimination, and denial of medical treatment.
Many of the defendants were dismissed for various reasons throughout the litigation.
For instance, the District Court dismissed with prejudice the government officials because
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Tucker also asserted claims under 18 U.S.C. §§ 241, 242, 1201, and 3182, various
articles of the Constitution, the International Convention on the Elimination of all Forms
of Racial Discrimination, and state law.
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Tucker was suing them solely on the theory of vicarious liability. See Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988). Despite this dismissal, Tucker included the same claims
against these defendants in an amended complaint. The District Court again dismissed these
defendants.
In addition, in a February 23, 2010, order, the District Court dismissed many other
defendants. First, the District Court dismissed the news organizations. Tucker had sued
them for defamation because they had allegedly published stories calling him a “serial
killer.” The District Court found that these defendants were improperly joined because the
claims against them and the other defendants did not share common questions of law or fact.
Fed. R. Civ. P. 20(a)(2). It dismissed the governor of Illinois for lack of subject matter
jurisdiction, and it dismissed the Chicago Police Department for failure to state a claim.
While many of the defendants have been dismissed from the case, one of the
detectives who initially approached Tucker has not been dismissed. For this defendant, the
District Court granted a motion to stay the case pending the outcome of the related criminal
proceedings in Illinois and New York.2
Tucker has also made repeated requests for two types of injunctive relief, both of
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Tucker has only served one of the two detectives who had approached him. On
February 23, 2010, the District Court denied without prejudice Tucker’s motion to
substitute the other detective for one of the John Does in his complaint because the two-
year statute of limitations had run. The District Court noted that Tucker will have the
opportunity to show that the claim “relates back” in accordance with Federal Rule of
Civil Procedure 15(c) when the case is reopened.
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which the District Court denied.3 The first involved his wrongful-retention-of-property
claim. The District Court dismissed this claim with prejudice on November 18, 2008,
reasoning that because New York provides meaningful postdeprivation remedies for these
claims, Tucker cannot show that he was denied due process. See Hudson v. Palmer, 468 U.S.
517, 531 (1984). In his request for injunctive relief, Tucker asked that the police be
compelled to return his property. The District Court found that Tucker could not demonstrate
irreparable harm or the likelihood of success on the merits of his wrongful-retention-of-
property claim, and therefore denied injunctive relief.
Tucker also sought an injunction requiring the prison to allow him extra access to the
prison law library, and for the librarians to stop denying him copies and stamps, which he
claimed they do to retaliate against him for filing grievances. The District Court noted that
Tucker’s copious filings in this case belie his claim that he does not have adequate access to
the law library and denied injunctive relief.
On March 10, 2010, Tucker filed a notice of appeal, asking to appeal three of the five
orders of the District Court. However, in his argument in support of appeal, he raises issues
that relate to all five orders. Thus, we will construe his notice of appeal to include all five
orders. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
II.
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In addition to denying Tucker’s requests for injunctive relief, the District Court also
denied Tucker’s motions for leave to amend his complaint to include a denial-of-medical-
treatment claim that arose while in the Chicago prison and an extension of time to serve
his amended complaint.
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As a general rule, we have jurisdiction to hear appeals only from final decisions of the
district courts. 28 U.S.C. § 1291. A final order ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment. See Republic Natural Gas Co. v.
Oklahoma, 334 U.S. 62, 68 (1948). To be appealable, an order must end the litigation as to
all claims and all parties, see Andrews v. United States, 373 U.S. 334 (1963), or be certified
under Fed. R. Civ. P. 54(b). See In re Diet Drugs Prods Liab. Litig., 401 F.3d 143, 154 (3d
Cir. 2005). The claims against the detective have not been dismissed. Since the litigation
has not ended as to all claims and all parties, and the District Court has not certified the case
under Rule 54(b), several of the District Court’s orders are not appealable at this time.
However, an exception to this general rule is orders granting or denying injunctive relief.
28 U.S.C. § 1292(a)(1). Thus, to the extent that they deny injunctive relief, we have
jurisdiction over the District Court’s orders entered April 6, 2009, and February 23, 2010.
III.
The standard of review for a district court’s denial of injunctive relief is plenary as to
conclusions of law, clear error as to conclusions of fact, and abuse of discretion as to
decisions to grant or deny relief. New Jersey Hosp. Ass’n v. Waldman, 73 F.3d 509, 512 (3d
Cir. 1995). We may summarily affirm a decision of the District Court if the appeal does not
raise a substantial issue. L.A.R. 27.4; I.O.P. 10.6.
We conclude that the District Court did not abuse its discretion in denying either of
Tucker’s requests for injunctive relief. A party seeking injunctive relief must show that: (1)
there is a likelihood of success on the merits; (2) irreparable injury will result if relief is
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denied; (3) relief will not result in even greater harm to the nonmoving party; and (4) relief
will be in the public interest.
First, as the District Court noted when it correctly denied the injunction requiring the
police to return the property, Tucker is unlikely to succeed on the merits of his wrongful-
retention-of-property claim. Second, with regard to the request for expanded use of the
prison library, prisons may “reasonably limit the times, places, and manner in which inmates
may engage in legal research and preparation of legal papers” so long as the prison does not
frustrate the inmates’ constitutional right to access the courts. Gittlemacker v. Prasse, 428
F.2d 1, 7 (3d Cir. 1970). The District Court held that the prison’s policy did not deprive
Tucker of access to the courts, and supported this assertion by noting the great number of
documents that Tucker had filed in the case. We conclude that this was not abuse of the
District Court’s discretion.
IV.
Tucker’s appeals from the District Court’s denials of injunctive relief present no
substantial question. We will therefore affirm the orders of the District Court as to those
claims, but we will otherwise dismiss the appeal for lack of jurisdiction. We will deny
Tucker’s motions for appointment of counsel and a preliminary injunction.
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