Leroy T. Moore v. Carteret Police Department

BLD-2 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-2840
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LEROY T. MOORE,
Appellant,
v.
CARTERET POLICE DEPARTMENT;
JUAN RIVERA, PTL.; CHRISTOPHER ELY, DIR.;
RAYMOND NOVAK, DET.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 04-cv-3313)
District Judge: Honorable Stanley R. Chesler
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Submitted for Possible Dismissal for Lack of Jurisdiction,
for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B),
or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
October 4, 2007
Before: McKEE, RENDELL and SMITH, Circuit Judges
(Filed: November 9, 2007)
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OPINION
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PER CURIAM

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Defendant Christopher Ely, who was identified in the complaint, is not a party to the1
suit because he was never served with the complaint. As a general rule, unserved
defendants are not parties within the meaning of Fed. R. Civ. P. 54(b). United States v.
Studivant, 529 F.2d 673, 674 n.2 (3d Cir. 1976).
2
Leroy T. Moore, a state prisoner proceeding pro se, appeals from the District
Court’s grant of summary judgment in favor of defendants on his malicious prosecution
claim against the Carteret police department, Officer Juan Rivera, and Detective
Raymond Novak. Because Moore’s appeal presents no substantial question, we will1
summarily affirm. LAR 27.4; I.O.P. 10.6.
Moore’s claim for malicious prosecution arises out of his arrest on March 26,
2002. On that day, Officer Rivera sought and obtained a search warrant on the basis of
witness statements alleging Moore’s involvement with a burglary and theft. Later the
same day, officers arrested Moore at an apartment where he was seen entering wearing a
black puffy jacket. The apartment was searched, and the black, puffy jacket found inside
was identified by the apartment’s resident as belonging to Moore. The jacket contained
bags of a white, powdery substance that police suspected to be cocaine. This evidence
provided the basis for a second Warrant-Complaint, which was issued against Moore for
possession of a controlled dangerous substance. The Warrant was apparently based on
the detective’s observation of the substance in the jacket Moore had been seen wearing.
Some time after Moore’s arrest, the substance found in Moore’s jacket tested negative for
a controlled dangerous substance.

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The Honorable William J. Martini reviewed Moore’s complaint pursuant to 282
U.S.C. §§ 1915(e) and 1915A. Judge Martini concluded that Moore had cognizable
claims for false arrest, malicious prosecution, excessive bail in violation of the Eighth
Amendment, and deprivation of property under the Fourteenth Amendment. However, he
dismissed Moore’s claim for false arrest as time-barred. With the exception of his
malicious prosecution claim, Moore’s remaining claims were dismissed for failure to state
a claim.
We have jurisdiction of appeals from all final decisions of the district courts. 283
U.S.C. § 1291.
The District Court’s Order, granting summary judgment, was entered on May 3,4
2007. Moore submitted his application for proceeding in forma pauperis on May 22,
2007.
3
A New Jersey Grand Jury voted no-bill against Moore for conspiracy, burglary,
theft, and receiving stolen property. With regard to the second Warrant, Moore was
found not guilty on a down-graded charge for failure to make lawful disposition of a
controlled substance. Six months later Moore filed a complaint alleging various causes of
action against several defendants. Only Moore’s claim for malicious prosecution was
allowed to proceed. The parties filed cross motions for summary judgment and the2
District Court granted defendants’ motion on the sole issue of whether or not the police
had probable cause to arrest and charge Moore.
Before considering the merits we must dispense with the jurisdictional question of
whether Moore’s appeal was timely filed. Moore did not file his formal notice of appeal3
until June 7, 2007. Defendants argue that his motion is untimely and thus jurisdictionally
barred. However, Moore did file an application to proceed in forma pauperis on appeal in
the District Court within thirty days of the District Court’s order. Because Moore timely4

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demonstrated an intent to appeal, we have jurisdiction to consider his claim on the merits.
See Smith v. Barry, 502 U.S. 244, 247-49 (1992) (holding an appellate brief may serve as
a notice of appeal); Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007) (holding
court had jurisdiction where the appellant filed a motion for leave to proceed on appeal
without prepayment of costs or fees, which evidenced an intent to appeal); see also LAR
3.4.
Having concluded that jurisdiction is proper, we turn to review of the district
court’s grant of summary judgment under a plenary standard. Moore v. City of
Philadelphia, 461 F. 3d 331, 340 (3d Cir. 2006). Summary judgment is appropriate when,
after considering the record as a whole, there is no genuine issue of material fact.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986). In
examining the record, we will draw all reasonable inferences in favor of the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).
The existence of probable cause is an absolute defense to a malicious prosecution
claim brought either under § 1983 or pursuant to New Jersey law. Wildoner v. Borough
of Ramsey, 744 A.2d 1154, (2000). Thus, to survive defendants’ motion for summary
judgment, the evidence, viewed in the light most favorable to Moore, must demonstrate
that defendants did not have probable cause to arrest him on March 26, 2002.
We agree with the District Court’s conclusion that the record demonstrates
sufficient evidence of probable cause. The record shows that Officer Rivera relied on the

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statements of two witnesses at the scene of the theft and burglary as the basis for
obtaining and executing a warrant against Moore. Specifically, Christine and Tara
Bowers stated that the two individuals who were found at the scene, and who had the
stolen items in their possession, had identified Moore as their accomplice. Moore does
not dispute the veracity of the information told to Officer Rivera by Tara And Christine
Bowers. Their statements provided a sufficient basis for obtaining and executing a
warrant against Moore and thus Moore’s malicious prosecution claim cannot go forward.
We also agree with the District Court that probable cause existed to obtain and
execute a second warrant against Moore for possession of a controlled substance. The
evidence for probable cause included the presence of baggies containing a white powdery
substance located inside the jacket that Moore had been seen wearing prior to exiting the
apartment where the jacket was found. In addition, the apartment’s resident identified the
jacket as belonging to Moore.
For these reasons, we find no basis for reversing the District Court’s decision and
will therefore affirm its judgment.
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