Ra-King Allen v. New Jersey State Police ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3138
_____________
RA-KING ALLEN,
Appellant
v.
NEW JERSEY STATE POLICE; SUPERINTENDENT
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC
SAFETY – DIVISION OF STATE POLICE, JOSEPH R.
FUENTES; TROOPER RICHARD NUGNES
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. Action No. 3-16-cv-01660)
District Judge: Hon. Brian R. Martinotti
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 1, 2020
______________
Before: GREENAWAY, JR., SHWARTZ, and RENDELL,
Circuit Judges.
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(Opinion Filed: September 9, 2020)
Stacey A. Van Malden
Goldberger & Dubin
401 Broadway
Suite 306
New York, NY 10013
Counsel for Appellant
Nicole E. Adams
Tasha M. Bradt
Matthew J. Lynch
Office of the Attorney General of New Jersey
Department of Law & Public Safety
Division of Law
Richard J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08625
Counsel for Appellees
______________
OPINION
_____________
GREENAWAY, JR., Circuit Judge.
This case concerns Plaintiff-Appellant Ra-King Allen’s
attempt to sue for malicious prosecution after the State of New
Jersey declined to retry him for possession with intent to
distribute heroin. We must decide whether the District Court
erred in granting summary judgment on the malicious
prosecution claim because: (1) Ra-King Allen’s underlying
prosecution for possession with intent to distribute heroin did
2
not terminate in his favor; and (2) the State of New Jersey has
not waived its Eleventh Amendment immunity. For the reasons
stated below, we will affirm.
I. BACKGROUND
This case resulted from a vehicle stop and arrest that
took place in 2008. On April 21, 2008, New Jersey State Police
Trooper M. DiLillo stopped a rented Chevy Malibu for speeding
on Route 80 West in New Jersey. Plaintiff-Appellant Ra-King
Allen was the only passenger. His uncle, Andrew Allen, was
the driver.
When DiLillo approached the vehicle, Andrew Allen
informed him that his nephew, Ra-King, had rented the vehicle
and that they were traveling from New York City to
Binghamton, New York. DiLillo performed a record check and
discovered that Andrew Allen had an outstanding warrant. He
placed Andrew Allen under arrest and, after conducting a search
of his person, placed him in the rear of his police vehicle.
DiLillo then asked Ra-King Allen for his license. He
discovered that Ra-King Allen too had an outstanding warrant
for failure to appear. DiLillo then placed him under arrest.
During DiLillo’s search incident to the arrest, Ra-King Allen
admitted that he had marijuana on his person. DiLillo
discovered two small baggies of marijuana in Ra-King Allen’s
shoe.
DiLillo had radioed for assistance with the stop.
Defendant-Appellee Trooper Richard Nugnes (“Nugnes”) went
to the scene. When Nugnes arrived, DiLillo had already put
both Andrew and Ra-King Allen into custody. At that point,
DiLillo left the scene with the two men. Nugnes remained to
wait for a tow truck to remove the impounded Chevy Malibu.
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When the tow truck arrived, the driver attempted to
unlock the car. In the course of doing so, he accidentally opened
the trunk. At that point, Nugnes turned and looked at the trunk.
He told the tow truck driver not to do anything. Nugnes pulled
out a “thing wrapped up in a black plastic bag.” JA63. Based
on his training and experience, Nugnes believed that it was a
bundle of heroin. He radioed in to inform the police station that
he had found narcotics and then searched the rest of the trunk.
The plastic bag did contain heroin.
Ra-King Allen (hereinafter referred to as “Allen”) was
charged with: (1) manufacturing, distributing, or dispensing
heroin; (2) possession, use or being under the influence, or
failure to make lawful disposition of a controlled dangerous
substance; (3) possession of under 50 grams of marijuana; and
(4) possession of narcotic paraphernalia. Allen moved to
suppress the heroin, but the trial court denied the motion on the
ground that the evidence was in plain view. Allen then pled
guilty to possession with intent to distribute heroin and
possession of marijuana. With respect to the heroin charge,
Allen admitted on the record that: “I had in my car on April
21st, there was heroin in the trunk of my car, and I had
knowledge of it.” JA120. When questioned by the judge, Allen
affirmed that he knew the drug was heroin and that he intended
to distribute it. Allen was sentenced to fourteen years’
imprisonment with 57 months of parole ineligibility.
The Appellate Division affirmed the denial of the
motion to suppress. The Supreme Court of New Jersey,
however, remanded to the trial court for additional fact-finding.
On remand, the trial court heard testimony from the tow truck
driver and Nugnes. Based on that testimony, the trial court was
“not persuaded, by even the preponderance of the evidence, that
the mannitol or the heroin was visible prior to the trooper’s
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incursion into the trunk.” JA142. Having retained jurisdiction,
the Supreme Court of New Jersey then reversed and vacated
Allen’s conviction on the heroin charge on the ground that
“[n]either the automobile exception nor the plain view
exception” applied to justify Nugnes’s warrantless search of the
vehicle. JA136.
The State moved to dismiss the indictment because it
would be “unable to proceed to trial” as a result of “th[e] Order
[vacating Allen’s conviction] and the suppression of the
evidence which corresponds” to the indictment. JA21. The trial
court granted the State’s motion.
Allen then filed a 42 U.S.C. § 1983 suit against
Defendants-Appellees the New Jersey State Police (the
“NJSP”), Joseph R. Fuentes, the Superintendent of the New
Jersey Department of Law and Public Safety-Division of State
Police (“Fuentes”), and Nugnes (collectively, hereinafter
“Defendants”). The District Court dismissed his first
Complaint. Ultimately, Allen’s operative Second Amended
Complaint alleged that (1) Defendants committed malicious
prosecution in violation of § 1983 and New Jersey common law
and (2) Defendants Fuentes and the NJSP violated his
constitutional rights under § 1983 by adopting and
implementing careless and reckless policies and failing to
adequately train and supervise Nugnes.1 Defendants filed a new
motion to dismiss, which the District Court denied. Defendants
1
Allen has made no reference to this claim in his
briefing on appeal. We therefore will not reach this claim, as
it is waived. See, e.g., United States v. Pelullo, 399 F.3d 197,
222 (3d Cir. 2005) (“It is well settled that an appellant’s failure
to identify or argue an issue in his opening brief constitutes
waiver of that issue on appeal.”).
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then filed a motion for summary judgment, which the District
Court granted.
This timely appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over Allen’s § 1983
suit under 28 U.S.C. § 1331. We have jurisdiction over Allen’s
appeal under 28 U.S.C. § 1291. We conduct a plenary review
of the grant of summary judgment. Goldenstein v. Repossessors
Inc., 815 F.3d 142, 146 (3d Cir. 2016). Summary judgment
should only be granted where the record 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).
We draw all reasonable inferences in the nonmovant’s favor.
Goldenstein, 815 F.3d at 146.
III. DISCUSSION
At issue on appeal is whether the District Court erred in
granting summary judgment to Defendants on Allen’s
malicious prosecution claim. The District Court granted
summary judgment for two reasons: (1) the termination of
Allen’s criminal case did not indicate that he was innocent of
the crime charged; and (2) New Jersey has not waived its
Eleventh Amendment immunity from suit for damages in
federal court. Allen argues that the District Court erred on both
counts. We disagree.
A. Allen’s Prosecution Did Not Terminate in His Favor
To prove a malicious prosecution claim under § 1983, a
plaintiff must show that:
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(1) the defendant initiated a criminal proceeding;
(2) the criminal proceeding ended in his favor;
(3) the defendant initiated the proceeding
without probable cause; (4) the defendant 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. Knorr, 477 F.3d 75, 81–82 (3d Cir. 2007). At issue
in this case is the second requirement, the favorable termination
element. New Jersey common law likewise requires the
plaintiff to show that the underlying criminal action “was
terminated favorably to the plaintiff.” Lind v. Schmid, 337 A.2d
365, 368 (N.J. 1975).
The favorable termination element is only satisfied if
the criminal case was “disposed of in a way that indicates the
innocence of the accused.” Kossler v. Crisanti, 564 F.3d 181,
187 (3d Cir. 2009). “The purpose of the favorable termination
requirement is to avoid ‘the possibility of the claimant
succeeding in the tort action after having been convicted in the
underlying criminal prosecution, in contravention of a strong
judicial policy against the creation of two conflicting
resolutions arising out of the same or identical transaction.’” Id.(alteration omitted) (quoting Heck v. Humphrey, 512 U.S. 477,
484 (1994)). Depending on the facts, a plaintiff may be able to
satisfy the favorable termination if he shows that his criminal
proceeding was terminated by:
(a) a discharge by a magistrate at a preliminary
hearing, or
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(b) the refusal of a grand jury to indict, or
(c) the formal abandonment of the proceedings
by the public prosecutor, or
(d) the quashing of an indictment or information,
or
(e) an acquittal, or
(f) a final order in favor of the accused by a trial
or appellate court.
Id. (citation omitted).
Allen submits that he has satisfied the favorable
termination element because the State formally abandoned his
prosecution. Although in some cases a prosecutor’s decision to
abandon the criminal case may indicate the innocence of the
accused, and thereby satisfies the favorable termination
requirement, this analysis depends on the particular facts. As
we held in Donahue v. Gavin, 280 F.3d 371 (3d Cir. 2002), “not
all cases where the prosecutor abandons criminal charges are
considered to have terminated favorably.” Id. at 383.
Abandonment of the criminal case is a favorable termination
“only when [the case’s] final disposition is such as to indicate
the innocence of the accused.” Id. (emphasis omitted). For that
reason, in Donahue, we held that a prosecutor’s decision not to
retry a defendant in the interest of judicial economy, and not
because of any doubt about the strength of the evidence against
him, was not a favorable termination. Id. at 384.
Although we have not considered whether a
prosecutor’s decision to abandon further prosecution due to
suppression of otherwise reliable evidence is a favorable
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termination, our sister circuits have done so. We agree with
their reasoning:
[I]f the circumstances show that unreliable
evidence has been suppressed and the
prosecution then abandons the case because of
lack of sufficient reliable evidence, that would be
a circumstance where the dismissal is indicative
of innocence. But if the evidence was only
suppressed on “technical” grounds having no or
little relation to the evidence’s trustworthiness,
then the fact that there was not other sufficient
evidence would not be indicative of innocence.
Wilkins v. DeReyes, 528 F.3d 790, 804 (10th Cir. 2008) (citation
and internal quotation marks omitted); see also Margheim v.
Buljko, 855 F.3d 1077, 1089 (10th Cir. 2017); Mills v. City of
Covina, 921 F.3d 1161, 1171 (9th Cir. 2019) (holding that
dismissal of a criminal case because evidence was suppressed
under the exclusionary rule is not a favorable termination for
malicious prosecution).
The question is thus whether the evidence was
suppressed because it was unreliable or whether it was
suppressed based on other grounds that do not cast doubt on the
trustworthiness of the evidence. We must therefore “look to the
stated reasons for the dismissal [of the criminal proceedings] as
well as the circumstances surrounding it in an attempt to
determine whether the dismissal indicates [the plaintiff’s]
innocence.” M.G. v. Young, 826 F.3d 1259, 1263 (10th Cir.
2016) (first alteration in original) (quoting Wilkins, 528 F.3d at
803).
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Here, the Supreme Court of New Jersey vacated Allen’s
conviction because Nugnes’s search of the vehicle’s trunk was
not permitted under any exception to the warrant requirement.
In other words, the search was conducted and the inculpatory
evidence was discovered in violation of the Fourth Amendment.
Neither the trial court nor the Supreme Court cast any doubt at
any point on the reliability of the heroin discovered during the
search or its relevance to the charges for which Allen was
convicted; the issue was solely whether the search itself was
constitutionally permitted. The evidence was thus ultimately
suppressed for reasons “having no or little relation to the
evidence’s trustworthiness,” Wilkins, 528 F.3d at 804, and
Allen has not shown otherwise.
Allen’s claim that the termination of his criminal case
was indicative of his innocence because he was arrested without
probable cause is unavailing. This argument conflates the
second and third elements of the requirements for a malicious
prosecution claim. To prove a malicious prosecution claim,
Allen must show both that the criminal proceeding ended in his
favor and that the defendant initiated the proceeding without
probable cause. See Johnson, 477 F.3d at 81–82. Allen’s
ultimate success in his suppression motion may bear on the
probable cause element. However, since the suppression did
not cast any doubt on the reliability of the evidence, it does not
indicate his innocence.
The State has not suggested that it decided not to retry
Allen because he was innocent. To the contrary, Allen admitted
under oath that he was guilty of possession with intent to
distribute heroin. Specifically, he stated: “I had in my car on
April 21st, there was heroin in the trunk of my car, and I had
knowledge of it.” JA 120. Allen never claimed innocence in
his criminal proceeding or sought to withdraw his plea. See
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State v. Taccetta, 975 A.2d 928, 935 (N.J. 2009) (“The notion
that a defendant can enter a plea of guilty, while maintaining his
innocence, is foreign to our state jurisprudence. Court-
sanctioned perjury is not a permissible basis for the entry of a
plea in this State.”) (internal footnote omitted).
In the context of this lawsuit, Allen now claims that he
was innocent. During his deposition, Allen testified that he did
not know that heroin was in the trunk of the vehicle. But in light
of his previous, in-court, sworn admission of his guilt, no
rational juror could have credited this new assertion of
innocence. “[I]f the nonmoving party’s evidence, when viewed
in the context of all of the evidence, could not be credited by a
rational juror, summary judgment may be granted.” United
States v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir. 1993).
The District Court therefore did not err in granting summary
judgment on the ground that Allen failed to meet the
requirements of a malicious prosecution claim because he failed
to show that his criminal case was terminated in a way
indicative of his innocence.
B. New Jersey Has Not Waived its Eleventh Amendment
Immunity
The District Court also granted summary judgment to
Defendants NJSP and Superintendent Fuentes on the ground
that New Jersey has not waived its Eleventh Amendment
immunity from suit. We agree.
The Eleventh Amendment provides: “The Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.” U.S. Const. amend. XI. The
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Eleventh Amendment “bar[s] all private suits against non-
consenting States in federal court,” Lombardo v. Pa., Dep’t of
Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008), with the goal
of protecting “the States’ solvency and dignity,” Hess v. Port
Auth. Trans-Hudson Corp., 513 U.S. 30, 52 (1994); see also
Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir.
2016) (“[The Eleventh Amendment] has evolved into a potent
tool for States to ensure that States retain their sovereignty and
integrity as constituent polities of our national government.”).
The Amendment “has been interpreted by the Supreme Court to
shield States and certain State-affiliated entities from suits for
damages in federal court.” Bradley v. W. Chester Univ. of Pa.
State Sys. of Higher Educ., 880 F.3d 643, 654 (3d Cir. 2018).
There is no exception to Eleventh Amendment immunity for
plaintiffs who bring state law claims against a state. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106
(1984) (recognizing that Eleventh Amendment immunity
applies to state law claims in addition to federal claims).
A state may waive its Eleventh Amendment immunity,
thereby permitting suit against it in federal court. To do so,
“[t]he state either must voluntarily invoke our jurisdiction by
bringing suit . . . or must make a clear declaration that it intends
to submit itself to our jurisdiction.” MCI Telecomm. Corp. v.
Bell Atl. Pa., 271 F.3d 491, 504 (3d Cir. 2001) (internal
quotation marks omitted). Waiver of Eleventh Amendment
immunity will be found “only where the state’s consent is stated
by the most express language or by such overwhelming
implications from the text as [will] leave no room for any other
reasonable construction.” M.A. ex rel. E.S. v. State-Operated
Sch. Dist. of City of Newark, 344 F.3d 335, 345 (3d Cir. 2003)
(alteration in original) (internal quotation marks omitted).
12
New Jersey has not done so. See Port Auth. Police
Benevolent Ass’n, Inc. v. Port Auth. of N.Y. & N.J., 819 F.2d
413, 418 (3d Cir. 1987), abrogated on other grounds by Hess,
513 U.S. 30. Allen claims that the State waived its immunity
under the New Jersey Tort Claims Act “in cases in which a
public official has engaged in a crime, actual fraud, actual
malice or willful misconduct” and “for public entities, when an
injury is proximately caused by an ‘act or omission of a public
employee within the scope of his employment.’” Appellant Br.
26 (quoting N.J. Stat. Ann. § 59:2-2). However, the New Jersey
Tort Claims Act does not constitute waiver of immunity from
suit in federal court; the statute reflects a limited waiver only of
the State’s immunity from suit in state court. See Velez v. City
of Jersey City, 850 A.2d 1238, 1241–42 (N.J. 2004). “[A]
State’s waiver of sovereign immunity in its own courts is not a
waiver of the Eleventh Amendment immunity in the federal
courts.” Pennhurst State Sch. & Hosp., 465 U.S. at 99 n.9.
Allen has not pointed to any section of the New Jersey Tort
Claims Act, or any other statute, in which New Jersey has made
a “clear declaration” that it consents to the jurisdiction of the
federal courts for suits seeking damages. MCI, 271 F.3d at 504.
The only remaining question is thus whether the NJSP
and its Superintendent, Fuentes, are entitled to Eleventh
Amendment immunity as “arm[s] of the State.” Bradley, 880
F.3d at 654. We answer in the affirmative. To determine
whether a state-affiliated entity is entitled to Eleventh
Amendment immunity, we apply a three part test, also referred
to as the “Fitchik factors”: “(1) whether the money that would
pay any judgment would come from the state; (2) the status of
the agency under state law; and (3) the degree of autonomy
possessed by the agency.” Id. at 654–55 (citing Fitchik v. N.J.
13
Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989) (en
banc)).
Appropriately, Allen does not dispute that the NJSP is a
state agency entitled to immunity. The NJSP is a division of
New Jersey’s Department of Law and Public Safety, which is
an executive department. N.J. Stat. Ann. §§ 52:17B-1;
52:17B-3. It is organized under the authority of the State’s
Attorney General. Id. § 52:17B-3. The Superintendent of the
NJSP is appointed by the Governor with the advice and consent
of the Senate and serves during the term of the Governor who
appointed him or her. Id. § 53:1-2. The purpose of the
Department is “to provide for the enforcement of the criminal
law of the State” and to render “legal services to the Governor
and to all officers, departments, boards, bodies, commissions
and instrumentalities of the State Government.” Id. § 52:17A-
1. These are indisputably government services. Further, the
NJSP is funded by appropriations made from the New Jersey
State Treasury. See Anticipated Resources for the Fiscal Year
2019-2020, P.L.2019, Ch. 150, approved June 30, 2019, Senate,
No. 2020,
https://www.njleg.state.nj.us/2018/Bills/AL19/150_.PDF.
Payment of a judgment against the NJSP arising out of tort
comes from the State Treasury under New Jersey Statutes
Annotated § 59:12-1. The NJSP is thus deeply integrated into
the government and governmental functions of New Jersey. As
such, it is a state agency entitled to Eleventh Amendment
immunity. See, e.g., Longoria v. New Jersey, 168 F. Supp. 2d
308, 315–16 (D.N.J. 2008) (deciding that the NJSP “is plainly
an arm of the State of New Jersey” based on the Fitchik factors).
The same conclusion applies to Allen’s suit against
Fuentes in his official capacity as Superintendent of the NJSP.
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“[A] suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the
official’s office. As such, it is no different from a suit against
the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989) (internal citation omitted). We will therefore
affirm the District Court’s dismissal of Allen’s claims against
the NJSP and Fuentes based on New Jersey’s Eleventh
Amendment immunity.
IV. CONCLUSION
For the foregoing reasons, we will affirm.
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