Richard A. Dunne v. Township of Springfield

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1583
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RICHARD A. DUNNE,
Appellant
v.
TOWNSHIP OF SPRINGFIELD; SPRINGFIELD TOWNSHIP
POLICE DEPARTMENT; OFFICER KEVIN GILCHRIST;
JOHN DOES I-X, (fictitious named individuals);
ABC I TO X, (fictitious named entities and/or corporations)
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 08-cv-05605)
District Judge: Honorable Garrett E. Brown, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
September 13, 2012
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Before: SCIRICA, ROTH and BARRY, Circuit Judges
(Opinion Filed: October 2, 2012)
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OPINION
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BARRY, Circuit Judge
After being found not guilty of two minor traffic offenses, Richard A. Dunne,
Esq., filed an action under 42 U.S.C. § 1983 asserting claims for malicious use and abuse

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of process. The District Court granted summary judgment to the defendants, and Dunne
appealed. We find his claims to be wholly without merit, and will affirm.
I. Background
On November 17, 2006, Dunne was stopped in traffic on a street outside of a
special education elementary school at the time of school dismissal. Officer Kevin
Gilchrist was also there to direct traffic, which was heavy due to the number of parents
picking up their children from school. Dunne believed that Gilchrist was not paying
proper attention to the traffic situation, and after waiting approximately one minute, he
twice honked his horn at Gilchrist. When the heavy traffic eased, Dunne proceeded to
drive down the street. As he drove past Gilchrist, Dunne said something to him out of the
passenger-side window of his car.1 Gilchrist noted Dunne‟s license plate number and
wrote summonses for improper use of horn and for careless driving, which he mailed to
Dunne. At a subsequent hearing in Municipal Court, Dunne was found not guilty of
careless driving but guilty of improperly using his horn, and was fined $33. He appealed
to the Superior Court, which reversed the guilty finding for improper use of horn.
Dunne then filed the instant action in federal court against Gilchrist, the Township
of Springfield, the Springfield Police Department, and certain unnamed individuals and
corporate entities alleging that the defendants violated his constitutional right to due
process through the malicious use and abuse of process. He sought compensatory,
1 The parties dispute the content of this statement. Dunne claims that he told Gilchrist that
he was “not very smart”; Gilchrist testified that Dunne called him a “fucking asshole.”

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general, special, economic, and punitive damages, as well as attorney‟s fees and costs.
Eventually, after Dunne had filed several amended complaints, defendants moved for
summary judgment, a motion the District Court granted in an order accompanied by a
well-reasoned and extraordinarily detailed opinion. Dunne now appeals, challenging the
District Court‟s ruling only with respect to Gilchrist.
II. Analysis2
A. Malicious Use of Process
In his first § 1983 claim, Dunne asserts that Gilchrist‟s issuance of the traffic
summonses constituted malicious use of civil process by a state actor in violation of his
due process rights.3 We have held that “a claim of malicious use of process may state a
Section 1983 claim if it includes the elements of that common law tort as it has
developed.” McArdle v. Tronetti, 961 F.2d 1083, 1088 (3d Cir. 1992). Accordingly, we
are guided by the relevant decisions of the New Jersey state courts, which hold that a
plaintiff asserting a malicious use of process claim must show that:
(1) a[n] . . . action was instituted by this defendant against this plaintiff; (2)
the action was motivated by malice; (3) there was an absence of probable
cause to prosecute; . . . (4) the action was terminated favorably to the
plaintiff; . . . [and (5)] the plaintiff has suffered a special grievance caused
2 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We
have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a grant of
summary judgment, affirming only if “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
3 Because “traffic offenses[] are not criminal actions but are, rather, quasi-criminal,” the
issuance of traffic summonses is evaluated under the civil standard for malicious use of
process rather than under the criminal standard for malicious prosecution. Klesh v.
Coddington, 684 A.2d 504, 505 (N.J. Super. Ct. App. Div. 1996).

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by the institution of the underlying civil claim.
LoBiondo v. Schwartz, 970 A.2d 1007, 1022-23 (N.J. 2009). After meticulously
examining the record and drawing all inferences in favor of Dunne, the District Court
determined that he had not established a “special grievance” and that his claim therefore
failed.4 We agree.
New Jersey courts have held that “the mere cost of defending against litigation”
does not amount to a special grievance; rather, the key inquiry is whether the underlying
action “interfere[s] with one‟s liberty or property.” Id. at 1026 (citation and internal
quotations omitted). Dunne has failed to allege, let alone demonstrate, that he suffered
any such special grievance. Nor could he, as it is undisputed that he was never restrained,
arrested, jailed, or otherwise deprived of his liberty or property. Consequently, the lack of
a special grievance is fatal to his malicious use of process claim.5
B. Malicious Abuse of Process
Dunne also asserts a § 1983 claim based on the related, but distinct, tort of
4 The District Court also concluded that Dunne failed to demonstrate malice and a lack of
probable cause, the second and third elements of the claim. Those conclusions are amply
supported by the undisputed facts of record.
5 Relying on a Harmon v. Holmes, 712 F. Supp. 451 (D.N.J. 1989), Dunne argues that the
mere potential for a traffic offense to result in jail or points on a driving record constitutes
a “special grievance.” Of course, Harmon is not binding upon us, and to the extent that it
can be read to support such a proposition, we decline to follow it, as it stands in contrast
to the clear weight of authority on this subject. See, e.g., Klesh, 684 A.2d at 505 (“[T]he
determinant of the special-grievance requirement is the „reality‟ of what happened in the
underlying action rather than the „potentiality.‟”); Bergen v. Gervasi, 1998 U.S. Dist.
LEXIS 20755, at *11 (D.N.J. Nov. 23, 1998) (same); Vickey v. Nessler, 553 A.2d 34, 38
(N.J. Super. Ct. App. Div. 1989) (same).

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malicious abuse of process. “[A] section 1983 claim for malicious abuse of process lies
where „prosecution is initiated legitimately and thereafter is used for a purpose other than
that intended by the law.‟” Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989) (citation
omitted). Thus, “[t]he gravamen of [a malicious abuse of process claim] is not the
wrongful procurement of legal process or the wrongful initiation of criminal or civil
proceedings; it is the misuse of process, no matter how properly obtained, for any purpose
other than that which it was designed to accomplish.” Restatement (Second) of Torts
§ 682 cmt. a (1965). Quite simply, the record here is utterly devoid of evidence to
support such a claim, and Dunne does not even suggest that the prosecution of the traffic
citations was undertaken for any improper or abusive purpose. Rather, it is clear that the
sole aim of the proceedings in the state courts was to determine whether Dunne was guilty
of the offenses in question, which is precisely the purpose “intended by the law.” Rose,
871 F.2d at 350 n.17. As such, Dunne‟s malicious abuse of process claim fails.
III. Conclusion
For the foregoing reasons, the judgment of the District Court will be affirmed.

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