Warren Cundiff v. Ronald Berreman

The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals*
for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3504
WARREN CUNDIFF,
Appellant
v.
RONALD BERREMAN; ANTHONY GOYDEN;
MR. GONZALEZ, #18; LEONARD DOMANSKI;
STEVEN TALLARD; DEPARTMENT OF CORRECTIONS,
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cv-02996)
District Judge: Honorable Jose L. Linares
Submitted pursuant to Third Circuit LAR 34.1(a)
April 24, 2007
Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN, Circuit Judges.*
(Filed: August 6, 2007)

-- 1 of 3 --

Under N.J. Stat. § 2C:43-6.4(a), a person convicted of certain sexual offenses1
must be sentenced to “parole supervision for life,” and is thereby subject to various
conditions of release, supervised by the Division of Parole of the State Parole Board.
Pursuant to this provision, Cundiff agreed “to submit to drug or alcohol testing at any
time as directed by the assigned parole officer.” (App. 42a.) He also agreed “to refrain
from the purchase, use, possession, distribution, or administration of any narcotic or
controlled dangerous substance . . . except as prescribed by a physician.” (Id.)
The urine sample provided by Cundiff was tested twice—each test returned a2
positive result.
Under that provision, “[a] person who violates a condition of a special sentence3
imposed pursuant to this section without good cause is guilty of a crime of the fourth
degree.”
-2-
OPINION OF THE COURT
FUENTES, Circuit Judge.
In September 2001, Warren Cundiff, a convicted sex offender, agreed to undergo
random drug and alcohol testing as a condition of his release from prison. In June 2002,1
Cundiff tested positive for drug use in preliminary testing at his parole office, and was2
consequently arrested and imprisoned for violating N.J. Stat. § 2C:43-6.4(d). Cundiff3
remained in prison pending confirmation of the positive results by an independent
laboratory. Two weeks after the preliminary positives, the parole office received negative
results from the laboratory, and Cundiff was released.
In October 2004, Cundiff filed a complaint in federal court against various state
defendants, alleging, inter alia, false arrest, false imprisonment, malicious prosecution,

-- 2 of 3 --

-3-
and abuse of process. In a thorough and well-reasoned opinion, the District Court granted
the defendants’ motion for summary judgment on all of Cundiff’s claims.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review
over the District Court’s grant of summary judgment. Mortellite v. Novartis Crop
Protection, Inc., 460 F.3d 483, 488 n.3 (3d Cir. 2006). Having carefully reviewed
Cundiff’s arguments on appeal, we will affirm for substantially the reasons set forth in the
District Court’s opinion. In doing so, we note that Cundiff challenges the parole office’s
use of a “preliminary” drug test in deciding to arrest him for violating the conditions of
his release. Cundiff does not, however, take issue with the test’s reliability, and instead
asserts that a variety of additional factors should have alerted the parole office that he was
not using drugs. For example, Cundiff claims that he had no history of illegal drug use,
that he adamantly denied using drugs, and that he did not appear to be on drugs when he
tested positive. In spite of these considerations, we agree with the District Court that the
two reliable, objective tests for drug use gave the parole office probable cause to arrest
Cundiff.

-- 3 of 3 --