Ernest C. Briggs v. Johnnie Moore

CLD-405 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-1918
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ERNEST C. BRIGGS,
Appellant
v.
JOHNNIE MOORE; LOUIS JORDAN; PATRICIA GREEN; MARK APOSTOLOU;
BARBARA SUPPA; SEAN BRENNAN; IRA E. KREIZMAN;
JAMES KINARNEY; POLICE DEPARTMENT OF ASBURY PARK, NJ;
MONMOUTH COUNTY PROSECUTOR'S OFFICE;
SUPERIOR COURT OF FREEHOLD NEW JERSEY
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 05-cv-01906)
District Judge: Honorable Freda L. Wolfson
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Submitted 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
September 27, 2007
Before: RENDELL, SMITH and JORDAN, Circuit Judges
(Filed: October 16, 2007)
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OPINION
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PER CURIAM
Ernest Briggs appeals from an order entered on March 13, 2007, by the United
States District Court for the District of New Jersey granting a motion for summary

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judgment filed by Appellees Asbury Park Police Sergeant Johnnie Moore (“Moore”),
Asbury Park Police Director Louis Jordan (“Jordan”), and Asbury Park Municipal Court
Administrator Patricia Green (“Green”). The rest of the Appellees had previously been
dismissed as defendants by order entered by the district court on May 5, 2005. We will
summarily affirm the judgment of the district court.
Briggs filed his complaint under 42 U.S.C. § 1983, alleging that his Fourth
Amendment rights were violated by certain police department officials, prosecutors, court
officials, and his defense attorney when he was arrested in May 2003. While on patrol,
Jordan observed the driver of a grey car ignore two traffic lights. He followed the car, but
lost sight of it. Soon thereafter, another officer (not named in this suit) radioed that he
was pursuing a subject by foot nearby. When Jordan arrived on the scene, he saw the
same grey vehicle he had been pursuing and an individual, Briggs, on foot. The officers
ordered Briggs to stop but he refused, and he eventually had to be physically restrained.
Briggs was handcuffed and taken to the police station. Two officers received medical
attention at the hospital because of injuries sustained in apprehending Briggs.
After Briggs was taken to the police station, Jordan returned to the car Briggs had
been driving and learned that the registration was not only expired, but pertained to
another car. Moore searched the vehicle for keys and found a plastic bag containing
crack cocaine. Thereafter, police officials secured four warrants for Briggs’ arrest: two
counts of aggravated assault on a police officer, one count of resisting arrest, and one
count of possession of a controlled substance. Briggs eventually pleaded guilty to one

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count of resisting arrest in July 2005, and the rest of the charges were dismissed.
Briggs filed this lawsuit in April 2005, alleging that the police had lacked probable
cause to arrest him, and that the police, court officials, prosecutors and his own attorney
had conspired against him. The district court dismissed many of the defendants in May
2005, and granted summary judgment to the rest of the defendants in March 2007.
Summary action is warranted when “no substantial question” is presented by the
appeal. See 3d Cir. LAR 27.4, I.O.P. 10.6; Cradle v. U.S. ex rel. Miner, 290 F.3d 536,
539 (3d Cir. 2002). After reviewing the record, we conclude that there is no substantial
question presented and will summarily affirm.
We review the district court’s dismissal de novo. See Santiago v. GMAC
Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir. 2005). We find that the district court
correctly dismissed Briggs’ claims against the group of defendants dismissed in 2005.
The New Jersey Superior Court is not a “person” capable of being sued under § 1983.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989). Prosecutors
Brennan and Suppa and Judges Apostolou and Kreimann were absolutely immune from
suit for damages. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Gallas v. Supreme
Court of Pennsylvania, 211 F.3d 760, 768 (3d Cir. 2000). With respect to Kinarney,
Briggs’ defense attorney, it is unclear whether he served as a public defender or a private
attorney during his representation of Briggs. Regardless, he is not liable in a suit for
damages under § 1983. See Polk County v. Dodson, 454 U.S. 312 (1981) (public
defenders not liable because they were not acting under color of state law). We also agree

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that the Asbury Park Police Department should have been dismissed as a defendant, but
so find because the department would not be considered separate from the municipality
such that it could be sued for the purposes of § 1983, and even if construed as a claim
against the municipality itself, there were certainly no allegations that Briggs’ arrest was
made pursuant to a municipal custom or policy. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978). Similarly, the Monmouth County Prosecutor’s Office is not a
separate entity that can be sued under § 1983. See, e.g., Reitz v. County of Bucks, 125
F.3d 139, 148 (3d Cir. 1997) (county district attorney’s office not entity for purposes of §
1983 liability). Even if it were, Briggs did not claim that his allegedly unconstitutional
arrest was the result of a municipal custom or policy. See Monell, 436 U.S. at 694.
We review the district court’s decision that Jordan, Moore and Green were entitled
to qualified immunity under a plenary review standard. See Schieber v. City of Phila.,
320 F.3d 409, 415 (3d Cir. 2003). The analysis involves a two-step inquiry: whether the
officials’ acts violated a constitutional or statutory right, and if they did, whether that
right was clearly established at the time of the violation. See Yarris v. County of Del.,
465 F.3d 129, 140-41 (3d Cir. 2006). Briggs contends that the warrants for his arrest
lacked probable cause, but after a careful review of the record, we conclude that he is
mistaken.
The Fourth Amendment prohibits the arrest of a citizen unless it is supported by
probable cause. Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995). Of the four
warrants sworn out for Briggs’ arrest, all were supported by a statement of probable cause

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by officers who witnessed Briggs’ unlawful behavior. Jordan personally observed Briggs
commit the crimes with which he was charged, and Moore found the crack cocaine in
Briggs’ car. Green did not violate Briggs’ rights when she signed the warrants, all
containing statements of probable cause where the officers had personally witnessed the
crimes. It is also worth noting that since the officers witnessed Briggs commit the
offenses, they had the authority under New Jersey law to arrest Briggs before any arrest
warrant was issued. See N.J. Stat. Ann. § 2A:169-3.
Briggs claims in his summary judgment opposition that Green’s reference in an
interrogatory answer to a “summons” rather than a “warrant” betrays some violation of
his rights. This claim is specious. Again, ample probable cause was presented – Green
did not violate Briggs’ rights by issuing the warrants. Without a violation of a clearly
established right, we need inquire no further and the three appellees are entitled to
qualified immunity. See Wright v. City of Phila., 409 F.3d 595, 600 (3d Cir. 2005).
We will summarily affirm the judgment of the district court. The Appellees’
motion to dismiss the appeal is denied.

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