RUSSELL v. RIGBY

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

KERRY RUSSELL,

Plaintiff,

Civil No. 15-1669-KMW

v.

THE CITY/TOWN OF HAMMONTON, et

al.,

Defendants.

Appearances:

Thomas McKay, III, Esq.,

Cozen O’Conner, P.C.

Counsel for Plaintiff Kerry Russell

Steven M. Horn, Esq., Thomas B. Reynolds, Esq., and John J.

Bannan, Esq.,

Reynolds & Horn, P.C.

Counsel for Defendant Jason Rigby

WILLIAMS, Magistrate Judge

OPINION

Before the Court is Defendant Jason Rigby’s Motion for Summary

Judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure. Plaintiff, Kerry Russell, opposes the Motion. The

Court has considered the Parties’ submissions and held a hearing on

the matter on January 27, 2020. For the reasons set forth below,

Defendant’s Motion is granted.

I. Factual and Procedural Background

This is a civil rights action brought pursuant to 42 U.S.C. §

1983 wherein Plaintiff, Kerry Russell, alleges, inter alia, that

defendants violated his constitutional rights by way of an illegal

traffic stop that led to his arrest and charges for driving while

intoxicated, driving with a suspended license, and other associated

traffic offenses. The stop occurred on February 5, 2012, at

approximately 1:55 p.m. when Mr. Russell was driving his wife’s

white pickup truck in the area of Route 30 and Main Road in Hammonton

Township, New Jersey. At the time, Defendant, Jason Rigby, a

Hammonton Township police officer, was on duty and on patrol in the

same vicinity and initiated a traffic stop of Mr. Russell. The

facts surrounding the stop and what occurred after are disputed to

some degree.

According to Officer Rigby’s “Drinking and Driving Report,”

Officer Rigby was driving behind Mr. Russell and was unable to read

the license plate on Mr. Russell’s vehicle because it was in “poor

condition,” “dirty and covered with debris.” Drinking and Driving

Report, Feb. 5, 2012, Def.’s Ex. B at 2. Officer Rigby reported

that he pulled Mr. Russell over for a motor vehicle violation based

on the poor condition of the plate. Id. After stopping the

vehicle, Officer Rigby approached and asked Mr. Russell for his

driver’s license, vehicle registration, and proof of insurance.

2

Mr. Russell provided the registration and insurance but did not

have a driver’s license and does not dispute that he did not have

a valid driver’s license at the time. At this point, according to

Officer Rigby’s report, he called in the vehicle’s license plate

number to Dispatch by reading it from Mr. Russell’s paperwork

because he was still not able to read the license plate on the

vehicle. Id.

Officer Rigby states that upon conversing with Mr. Russell, he

detected an odor of alcohol, which Mr. Russell disputes. He asked

Mr. Russell about his alcohol consumption and Mr. Russell stated

that he had drank two beers earlier that day. Officer Rigby then

asked Mr. Russell to exit the vehicle and conducted a field sobriety

test, which Officer Rigby determined Mr. Russell failed. Mr.

Russell disputes Officer Rigby’s assessment because Mr. Russell was

wearing leg braces at that time and had limited physical ability,

thus prohibiting him from completing the test. After the sobriety

test, Officer Rigby advised Mr. Russell that he was under arrest

for driving while intoxicated (DWI) and advised Mr. Russell of his

Miranda rights. Officer Rigby then transported Mr. Russell to

police headquarters, again advised him of his Miranda rights, and

advised him of his DWI rights. Mr. Russell consented to a

breathalyzer examination and was found to have a blood alcohol

content of 0.08%, which is above the statutory limit; Mr. Russell,

3

however, disputes the validity of the test results. Officer Rigby

issued Mr. Russell four Municipal Court summonses for motor vehicle

and traffic offenses for driving with a suspended license (N.J.

STAT. ANN. 39:3-40), driving with an “unclear license plate” (N.J.

STAT. ANN. 39:3-33), DWI (N.J. STAT. ANN. 39:4-50), and reckless

driving (N.J. STAT. ANN. 39:4-96). Mr. Russell was then released.

Approximately one week later, Mr. Russell first reported to

Municipal Court and returned on several occasions but proceedings

were repeatedly postponed.

Months later, on or about June 19, 2012, the Hammonton

Municipal Prosecutor directed Officer Rigby to file an additional

charge against Mr. Russell under a then newly enacted statute, N.J.

STAT. ANN. 2C:40-26, because Mr. Russell had been driving while his

license was suspended due to a prior DWI. In accordance with that

instruction, Rigby wrote a criminal complaint asserting the charge

and presented it by telephone to a Municipal Court Judge, who found

probable cause, issued an arrest warrant for Mr. Russell, and set

bail at $2,500.00. Because Mr. Russell resided in Buena Vista, a

neighboring municipality, Rigby contacted the Buena Vista police

for assistance with locating Mr. Russell and executing the arrest

warrant. An unidentified Buena Vista officer arrested Mr. Russell

at his home and later transferred custody of Mr. Russell to Officer

4

Rigby. Subsequently, at some point not represented in the record,

Mr. Russell was indicted on the 2C:40-26 charge.

Mr. Russell was assigned a public defender who filed a Motion

to Suppress based on Mr. Russell’s contention that his license plate

was not obstructed or unclear at the time of the stop. Because the

plate was readable, Mr. Russell argued, Rigby did not have probable

cause for the traffic stop, thus prohibiting the use, in Mr.

Russell’s criminal proceedings, of any evidence derived from the

stop under the Fourth Amendment exclusionary rule. The Superior

Court for Atlantic County heard the motion at a suppression hearing

on February 25, 2013. At the hearing, after receiving testimony

from Officer Rigby and others, the court concluded that the State

did not sustain its burden to show that the license plate was

unreadable and granted Mr. Russell’s motion to suppress. Pl.’s Ex.

C, Dkt. No. 72-3 at pp. 102-03. In reaching this conclusion, the

Court found that Officer Rigby’s testimony “was not entirely

consistent” regarding his ability to read Mr. Russell’s license

plate. Id. at 101. Specifically, the Court noted that Rigby’s

report stated that he had to read the license plate information

from the vehicle registration he obtained from Mr. Russell because

he remained unable to read it from the plate; however, a recording

of Rigby’s radio calls to Dispatch indicated that Rigby properly

read and called in the plate number while still in his vehicle

5

parked behind Mr. Russell eight seconds after stopping the truck.

The court also cited a photograph taken of the plate the day after

the stop, the fact that there was no indication that Rigby ever

told Mr. Russell that the stop was because of an unreadable plate,

and that Rigby did not take a picture of the plate with his personal

cell phone to establish “real hard objective evidence” that the

plate was unreadable. Id at 101-02. Based on the court’s granting

Mr. Russell’s motion to suppress, the prosecutor filed a motion to

dismiss the 2C:40-26 indictment. Pl.’s Ex. D. In the motion, the

prosecution stated that “the State cannot pursue the prosecution of

the defendant for charges that stemmed from the initial stop of the

defendant.” Id. The Superior Court granted the motion without

prejudice on March 6, 2013.1 Id.

On March 6, 2015, Mr. Russell filed the initial complaint in

this case pro se and applied to proceed in forma pauperis. After

initial screening of the Complaint pursuant to 28 U.S.C. §

1915(e)(2)(B), the Hon. Noel L. Hillman dismissed the initial

complaint without prejudice. Memorandum Op. and Order, Aug. 13,

2015, [Dkt. No. 2]. Mr. Russell filed an Amended Complaint and

1 Both the motion and the dismissal order specifically address the

indictment charging Mr. Russell with violating 2C:40-26 and do not

reference the traffic violations issued by Officer Rigby on February

5, 2012. There is no dispute among the Parties, however, that

there was no further prosecution or action on those charges.

6

alleged a number of claims arising from his arrest and the

subsequent charges, including civil rights and constitutional

violations pursuant to 42 U.S.C. § 1983 and similar claims under

New Jersey law. Am. Compl., [Dkt. No. 3]. Specifically, Mr.

Russell alleged, inter alia, false arrest, conspiracy, and malicious

prosecution, including a count for “Malicious Prosecution Based on

Race,” as well as racial profiling. Id. at 21; 27-29. Upon

screening the Amended Complaint, Judge Hillman dismissed all but

Mr. Russell’s claim for malicious prosecution, which is alleged

against the only remaining defendant, Officer Rigby.2 The matter

proceeded and in September 2018, this Court sua sponte entered an

order appointing Mr. Russell pro bono counsel. [Dkt. No. 52].

Officer Rigby now moves for summary judgment, arguing,

primarily, that there was probable cause for the charges brought

against Mr. Russell and that there is no evidence of malice, which

is required to prove malicious prosecution. Officer Rigby further

argues that Mr. Russell was guilty of the charges brought against

him. Finally, Officer Rigby argues that he is entitled to qualified

and good faith immunity.

2 Mr. Russell’s Complaint also names as a defendant the unknown and

unnamed Buena Vista police officer who arrested Mr. Russell on June

19, 2012. Mr. Russell does not appear to have taken any action to

proceed against that officer, however, and the time to seek

amendments to the pleadings or add new parties has long since

expired.

7

II. Summary Judgment Standard3

Summary judgment is appropriate “if the movant 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).

A fact is ‘material’ under Rule 56 if its existence or nonexistence

“

might impact the outcome of the suit under the applicable

substantive law.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir.

2015)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Moreover, [a] dispute over a material fact is ‘genuine’

“

if ‘a reasonable jury could return a verdict for the nonmoving

party.’” Id. (quoting Anderson, 477 U.S. at 249).

The moving party bears the burden of identifying portions of

the record that establish the absence of a genuine issue of material

fact. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). The burden then “shifts to the nonmoving party to go

beyond the pleadings and ‘come forward with ‘specific facts showing

that there is a genuine issue for trial.’’” Id. (quoting Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

To survive a motion for summary judgment, the nonmoving party must

3 On May 20, 2019, the Parties consented to this Court’s

jurisdiction pursuant to 28 U.S.C. § 636(c) and Federal Rule of

Civil Procedure 73. Judge Hillman entered the Consent Order on May

21, 2019. [Dkt. No. 70]]. This Court therefore has jurisdiction

to hear Defendant’s Motion.

8

identify specific facts and affirmative evidence that contradict

those offered by the moving party. Andersen, 477 U.S. at 256-57.

“A nonmoving party may not ‘rest upon mere allegations, general

denials or . . . vague statements . . . .’” Trap Rock Indus., Inc.

v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890

(3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500

(3d Cir. 1991)). When considering a motion for summary judgment,

the court views the facts and all reasonable inferences drawn from

the facts in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co., 475 U.S. at 587.

III. Discussion

Malicious Prosecution

A claim for malicious prosecution under New Jersey law requires

a plaintiff to establish four elements: “that the defendant (1)

instituted proceedings (2) without probable cause ... (3) with legal

malice; and (4) the proceedings terminated in favor of the

plaintiff.” Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d

243, 248 (3d Cir. 2001) (citing Lightning Lube v. Witco Corp., 4

F.3d 1153, 1197 (3d Cir. 1993)). A plaintiff's “[f]ailure to prove

any one of these four elements denies the plaintiff a cause of

action [for malicious prosecution.]” Trabal, 269 F.3d at 248 (citing

Fleming v. United Parcel Serv., 642 A.2d 1029, 1030 (N.J. Super.

Ct. App. Div. 1992), cert. denied, 516 U.S. 847 (1995)). A

9

constitutional claim for malicious prosecution under 42 U.S.C. §

1983 shares these four core elements but also requires a plaintiff

to show that “the plaintiff suffered deprivation of liberty

consistent with the concept of seizure as a consequence of a legal

proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d

Cir. 2003).4

“[A] plaintiff claiming malicious prosecution must be innocent

of the crime charged in the underlying prosecution.” Hector v.

Watt, 235 F.3d 154, 156 (3d Cir. 2000). This innocence requirement

is embedded within the favorable termination element. Favorable

termination may be found where there is “(a) a discharge by a

magistrate at a preliminary hearing, or (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.” Donahue v. Gavin, 280

F.3d 371, 383 (3d Cir. 2002) (citation omitted). Whatever the

manner of termination, it must be one that disposes of the charges

4 Neither party addresses or discusses this fifth element, nor are

the parties clear as to whether Mr. Russell’s malicious prosecution

claim is brought under state law, federal law, or both. The Amended

Complaint, however, makes clear that Mr. Russell’s claims are

premised on federal constitutional law and brought pursuant to 42

U.S.C. § 1983. (See Am. Compl. at pp. 18-25, [Dkt. No. 3] (citing

the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983).)

10

in a way that indicates the innocence of the accused. Id.; see

also Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009) (“a

malicious prosecution claim cannot be predicated on an underlying

criminal proceeding which terminated in a manner [that is] not

indicative of the innocence of the accused”).

The Third Circuit has noted that even though a prosecutor’s

abandoning the proceedings may satisfy the favorable termination

element, “not all cases where the prosecutor abandons criminal

charges are considered to have terminated favorably.” DiFronzo v.

Chiovero, 406 F. App'x 605, 609 (3d Cir. 2011) (citing Hilfirty v.

Shipman, 91 F.3d 573, 579–580 (3d Cir. 1996)). Rather, such

abandonment or dismissal of charges constitutes a favorable

termination of the charges “only when their final disposition is

such as to indicate the innocence of the accused.” Id. (citing

Donahue, 280 F.3d at 383). Thus, “upon examination of the entire

criminal proceeding, the judgment must indicate the plaintiff’s

innocence of the alleged misconduct underlying the offenses

charged.” Kossler, 564 F.3d at 188. “When the circumstances—both

the offenses as stated in the statute and the underlying facts of

the case—indicate that the judgment as a whole does not reflect the

plaintiff’s innocence, then the plaintiff fails to establish the

favorable termination element.” Id. If a plaintiff fails to

establish favorable termination, questions of probable cause and

11

malice are moot. Id. at 194 (“district courts need not reach the

probable cause element unless they first make a finding of favorable

termination . . . .”); see also Hector, 235 F.3d at 156 (“Even if

the plaintiff in malicious prosecution can show that the defendant

acted maliciously and without probable cause in instituting a

prosecution, it is always open to the defendant to escape liability

by showing in the malicious prosecution suit itself that the

plaintiff was in fact guilty of the offense with which he was

charged.” (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser

and Keeton on the Law of Torts 885 (5th ed. 1984))).

Here, Officer Rigby argues that Mr. Russell is guilty of the

offenses for which he was charged. Thus, if Mr. Russell’s criminal

proceedings did not end in a way that indicates that he was innocent

of the conduct underlying the offenses, Mr. Russell cannot show

that the criminal proceedings terminated in his favor. The Court

therefore considers the circumstances surrounding the dismissal of

the charges, including the offenses themselves and the alleged

misconduct. Given the undisputed underlying facts and the reason

for the dismissal, the Court concludes that Mr. Russell has not

satisfied the favorable termination element.5

5 Although the parties’ papers and positions at oral argument focus

heavily on probable cause for the traffic stop and the license

plate, the question of whether Officer Rigby had probable cause to

stop Mr. Russell based on the plate is not the central issue in

12

The Dismissal of the Charges

The Court first addresses the charge on which Mr. Russell was

indicted, N.J. STAT. ANN. 2C:40-26. Neither the motion to dismiss

the indictment nor the order granting same indicate Mr. Russell’s

innocence with respect to the charge brought under the indictment.

The indictment charged Mr. Russell with the violation of N.J. STAT.

ANN. 2C:40-26 for Operating a Motor Vehicle During a Period of

Suspension for DUI. (Pl.’s Ex. D). Sometime after Mr. Russell’s

Motion to Suppress was granted, the County Prosecutor moved to

dismiss the indictment. (Id.) The Prosecutor stated the reason

for the Motion to Dismiss as follows:

On February 25, 2012 [sic], a plenary hearing on the

Defendant's Motion to Suppress Evidence based on the

Illegal Stop of Defendant was held before Judge

Garofolo. Following testimony by Officer Rigby, of the

Hammonton Police Department, the Motion was Granted.

Therefore, the State cannot pursue the prosecution of

the defendant for charges that stemmed from the initial

stop of the defendant.

(Id.) On March 6, 2013, the Superior Court granted the Prosecutor’s

Motion and dismissed the indictment “without prejudice.” (Id.)

These circumstances do not indicate Mr. Russell’s innocence.

The charge was dismissed based on the suppression of evidence and

this case, which no longer includes a claim for false arrest.

Rather, favorable termination is the predominant issue.

Consequently, Rigby’s less than candid reasons for stopping Mr.

Russell do not provide this Court with a basis upon which to allow

this case to proceed.

13

the Prosecutor’s resulting inability to proceed on charges arising

from an illegal traffic stop. Nothing in the Motion or the order

indicates that Mr. Russell was actually innocent of the conduct

alleged in the indictment. See Arnold v. New Jersey, Civ. No. 03-

3997, 2009 WL 10728026, at *7 (D.N.J. June 10, 2009) (holding that

plaintiff failed to establish favorable termination where

indictment was dismissed based upon motion to suppress due to racial

profiling, which did not indicate plaintiffs’ innocence, and

collecting cases finding same); see also Woodyard v. Cty. of Essex,

514 F. App'x 177, 183 (3d Cir. 2013) (noting absence of favorable

termination where “the decision to dismiss did not reflect

[plaintiff’s] innocence, but rather was a result of the suppression

of evidence”). Absent any such indication, Mr. Russell fails to

establish the favorable termination element with respect to the

indictable offense.

The record is even less clear with respect to the four

Municipal Court summonses that Officer Rigby issued to Mr. Russell.

During his deposition, Mr. Russell testified that after his June

2012 arrest on the indictable offense, he was scheduled to appear

in Superior Court on June 26, 2012, which coincided with an already

scheduled appearance in Municipal Court regarding the summonses.

(Pl.’s Ex. E, Dep. Of Kerry Russell, Mar. 19, 2019 (“Pl.’s Dep.”)

110:17-24.) He testified that he went to Municipal Court on that

14

day and was told that the Municipal Court matter was “going to be

postponed till [he] take[s] care of the thing in Mays Landing”

(i.e., Superior court). (Id. 116:22—117:7.) The Superior Court

matter proceeded and the following February, Mr. Russell attended

the suppression hearing, after which he received another court date.

When he appeared, he was told the case had been dismissed and he

then “picked up the dismissal papers.” (Id. 131:14-19.) After

the Superior Court matter was dismissed, Mr. Russell “never made it

back” to Municipal Court for the summonses and testified that

“everything just went nowhere. It was just dismissed. I don’t

know.” (Id. 132:4-14.)

The record before the Court does not contain any documentation

regarding the dismissal or failure to prosecute the summonses that

Officer Rigby issued on February 5, 2012. At the hearing on the

present Motion, Mr. Russell’s counsel stated his belief that the

summonses were dismissed as part of the Superior Court dismissal.

There is no indication, however, that the Municipal Court charges

were transferred to or made part of the Superior Court proceedings.

Indeed, Mr. Russell testified that those matters were postponed

pending the separate Superior Court proceedings. Tellingly, the

Motion to Dismiss the indictment and the order granting the

dismissal refer specifically only to the indictment. There is thus

no evidence in the record regarding the termination of the Municipal

15

Court proceedings.6 The Court therefore cannot conclude that the

proceedings terminated in Mr. Russell’s favor where there is nothing

to establish how they terminated in the first instance.

The Underlying Facts and Offenses

The Court next looks to the offenses charged and the underlying

facts. Kossler, 564 F.3d at 188. The Court first addresses the

charge that gave rise to Mr. Russell’s indictment, N.J. STAT. ANN. §

2C:40-26, and the traffic summons issued under N.J. STAT. ANN. §

39:3-40 for driving with a suspended or revoked license. The former

statute states:

a. It shall be a crime of the fourth degree to

operate a motor vehicle during the period of

license suspension in violation of R.S.39:3-40, if

the actor's license was suspended or revoked for a

first violation of R.S.39:4-50 [Driving While

Intoxicated] or section 2 of P.L.1981, c. 512

(C.39:4-50.4a) and the actor had previously been

convicted of violating R.S.39:3-40 while under

suspension for that first offense. A person

convicted of an offense under this subsection shall

be sentenced by the court to a term of imprisonment.

b. It shall be a crime of the fourth degree to

operate a motor vehicle during the period of

6 Even assuming arguendo that the summonses were resolved as part

and parcel to the Superior Court proceedings, Mr. Russell still

fails to establish favorable termination for the same reason that

the dismissal of the indictment fails to do so: that dismissal does

not indicate Mr. Russell’s innocence. In any event, Mr. Russell’s

counsel’s belief or any assumptions as to the resolution of the

proceedings are not enough to withstand a motion for summary

judgment. Mr. Russell must cite to specific facts and actual

evidence demonstrating that the charges he claims were maliciously

brought against him terminated in a manner indicating his innocence.

Here, Mr. Russell has not done so.

16

license suspension in violation of R.S.39:3-40, if

the actor's license was suspended or revoked for a

second or subsequent violation of R.S.39:4-50 or

section 2 of P.L.1981, c. 512 (C.39:4-50.4a). A

person convicted of an offense under this

subsection shall be sentenced by the court to a

term of imprisonment.

N.J. STAT. ANN. § 2C:40-26. The statute concerning driving with a

suspended license states as follows:

No person to whom a driver's license has been

refused or whose driver's license or reciprocity

privilege has been suspended or revoked, or who has

been prohibited from obtaining a driver's license,

shall personally operate a motor vehicle during the

period of refusal, suspension, revocation, or

prohibition.

N.J. STAT. ANN. § 39:3-40.

The conclusion that the dismissal of the indictment does not

indicate Mr. Russell’s innocence on these charges aligns with the

underlying facts of the case. It is undisputed that Mr. Russell

was driving while his license was suspended on February 5, 2012 –

most notably because Mr. Russell’s interaction with Officer Rigby

began with a traffic stop. Mr. Russell admits that he did not have

a valid driver’s license at the time. (Pl.’s Dep. 45:1-5.) Mr.

Russell further admits that he had prior DWI convictions and also

had prior convictions for driving while his license was suspended.

(Id. at 118:2-8.) In support of the 2C:40-26 charge, Officer Rigby

submits an Abstract of Mr. Russell’s Driver History Record. (Def.’s

17

Ex. G.) Indeed, Mr. Russell does not argue that he is actually

innocent of these charges and presents no evidence or facts

demonstrating that to be the case. See Grendysa v. Evesham Twp.

Bd. of Educ., Civ. No. 02-1493, 2005 WL 2416983, at *10 (D.N.J.

Sept. 27, 2005) (“a plaintiff claiming malicious prosecution must

prove actual innocence as an element of his prima facie case”

(citing Hector, 235 F.3d at 156)). Thus, given these offenses and

the undisputed facts, the judgement as a whole does not reflect that

Mr. Russell was innocent of these charges. See Ramsey v. Dintino,

Civ. No. 05-5492, 2007 WL 979845, at *11 (D.N.J. Mar. 30, 2007)

(dismissing malicious prosecution claim where “the facts adduced

affirm[ed] [plaintiff’s] guilt rather than establish his innocence

of the underlying charges”).

The Court next considers the citations for driving while

intoxicated, N.J. STAT. ANN. § 39:4-50, and reckless driving, N.J.

STAT. ANN. § 39:4-96. Pursuant to § 39:4-50, “a person who . . .

operates a motor vehicle with a blood alcohol concentration of 0.08%

or more by weight of alcohol in the defendant’s blood” is guilty of

the offense. N.J. STAT. ANN. § 39:4-50. Pursuant to § 39:4-96,

A person who drives a vehicle heedlessly, in

willful or wanton disregard of the rights or safety

of others, in a manner so as to endanger, or be

likely to endanger, a person or property, shall be

guilty of reckless driving . . . .

18

N.J. STAT. ANN. § 39:4-96. A finding that a defendant was driving

while intoxicated may support a conviction for reckless driving.

State v. Ebert, 871 A.2d 664, 671 (N.J. Sup. Ct. App. Div. 2005).

Officer Rigby submits the results of the Breath Test

administered to Mr. Russell on February 5, 2012. (Def.’s Ex. B at

9.) The results list two “Breath Tests” and reports a result of

0.08%. Id. This blood alcohol concentration (“BAC”) satisfies §

39:4-50’s requirement for driving while intoxicated. Mr. Russell

contends that the test result is invalid “because Defendant

conducted the test 3 times rather than 2 times as called for in the

breathalyzer protocol.” (Pl.’s Resp. to Def.’s Statement of

Undisputed Facts (“Pl.’s Statement”), [Dkt. No. 72-1], at 20.) He

further contends that “[i]f Mr. Russell only had 2 beers earlier

that day as he has testified then a BAC reading of .08 percent” is

not possible for someone Mr. Russell’s size. (Id. at 21.)

Moreover, Mr. Russell contends that Rigby admitted that Mr. Russell

was polite, cooperative, never lost his temper or used harsh

language at any time during the stop or subsequently that day and

that such conduct is “inconsistent with Defendant’s claim that

Plaintiff was drunk.” (Id.)

Viewing the facts most favorably to Mr. Russell, the Court

concludes that Mr. Russell has not shown that he was actually

innocent of these charges. Mr. Russell offers speculative theories

19

and unsupported assertions concerning Officer Rigby’s

administration of the breath tests. Though Mr. Russell references

a “breathalyzer protocol,” he does not identify what that is or

submit it as part of the record, nor does he explain how Officer

Rigby’s purported failure to comply with the protocol led to an

invalid result. He further offers no evidence, documentation, or

expert testimony supporting his assertions that Officer Rigby’s

administration of the test was improper and could have invalidated

the test results. Similarly, Mr. Russell offers no evidentiary

support for the contention that Mr. Russell’s behavior on the day

in question was “inconsistent” with being intoxicated—or more

precisely, inconsistent with having a BAC of .08%. In addition,

Mr. Russell offers no expert testimony as to Mr. Russell’s BAC in

relation to his size, the amount of alcohol he alleges he consumed,

and the time at which he states he consumed it. Bald assertions

and unsupported theories are insufficient to overcome the evidence

on record and survive a motion for summary judgment. As such, Mr.

Russell has not established his actual innocence on the DWI or

reckless driving charges.7

7 During the hearing on Defendant’s Motion, Plaintiff’s counsel

suggested that Officer Rigby may not use evidence obtained after

the traffic stop for the same reason that the evidence was

suppressed in the criminal action, namely, under the “fruit of the

poisonous tree” theory underpinning the exclusionary rule. This

is not the case. The Supreme Court has “repeatedly declined to

20

The final summons was for the alleged unclear license plate in

violation of N.J. STAT. ANN. 39:3-33. The statute requires that

“[a]ll identification marks [license plates] shall be kept clear

and distinct and free from grease, dust or other blurring matter,

so as to be plainly visible at all times of the day and night.”

N.J. STAT. ANN. § 39:3-33. The facts surrounding this charge are

extend the exclusionary rule to proceedings other than criminal

trials.” Pennsylvan ia Bd. of Prob. & Parole v. Scott, 524 U.S.

357, 363 (1998); United States v. Janis, 428 U.S. 433, 447 (1976)

(“In the complex and turbulent history of the [exclusionary] rule,

the Court never has applied it to exclude evidence from a civil

proceeding, federal or state.”); see also Burroughs v. City of

Newark, Civ. No. 11-1685, 2013 WL 4047588, at *10-*11 (D.N.J. Aug.

9, 2013) (finding that evidence discovered as a result of an

unreasonable search and seizure that was suppressed in the criminal

proceeding need not be excluded from plaintiff’s malicious

prosecution suit). Burroughs, though not cited by either party, is

particularly persuasive. There, the plaintiff was subjected to a

Terry frisk, which was found to be an unreasonable search; the

search revealed that he was unlawfully carrying a firearm.

Burroughs, 2013 WL 4047588, at *1-*2. The court concluded that

even though the discovery of the weapon was unlawful, “plaintiff

was indeed committing a crime.” Id. at *11. The Court therefore

determined that the defendant police officers had “ample probable

cause to initiate a criminal proceeding against him.” Id. Thus,

a lack of probable cause for a seizure or search does not in and of

itself preclude a finding of probable cause to initiate charges in

a malicious prosecution action where a plaintiff was in fact

committing a criminal offense and the officers discovered evidence

thereof. Here, even if the traffic stop were unlawful, if the

evidence obtained demonstrates that Mr. Russell was in fact

committing the offenses charged, his malicious prosecution claim

cannot succeed.

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disputed and less determinative than those relating to the other

charges. Mr. Russell contends that the license plate was clear and

readable while Officer Rigby continues to maintain that it was not.

At the hearing on Mr. Russell’s Motion to Suppress based on the

initial stop, the court found that there was “not satisfactory proof

. . . to sustain the State’s burden” to establish probable cause

and granted the Motion to Suppress. (Pl.’s Ex. C at 102-03.) This

raises some question as to whether the proceedings for the alleged

violation of § 39:3-33 terminated in a manner indicating Mr.

Russell’s innocence. As discussed above, however, there is no

evidence presently in the record reflecting the course and

termination of the municipal court proceedings.

This evidentiary gap is fatal to the claim. In DiFronzo v.

Chiovero, the Third Circuit concluded that an order granting nolle

prosequi did not indicate the plaintiff’s innocence. 406 F. App'x

at 609. The Court observed that neither the order “nor any other

matter in the record” stated why the motion was filed and granted,

noting that the motion was not submitted as part of the record.

Id. Similarly here, there is no evidence in the record concerning

the termination of the municipal court charges. All that remains

is speculation that those charges ended with or because of the

dismissal of the indictment. There is no indication that those

matters were before that court. Ultimately, then, as with the other

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municipal court offenses, this lack of evidence precludes a finding

that these proceedings terminated in Mr. Russell’s favor.8

Thus, in sum, Mr. Russell has failed to establish the favorable

termination element. The evidence in the record demonstrates that

Mr. Russell committed most of the offenses charged and Mr. Russell

has not come forth with contradictory evidence that raises a genuine

issue for trial. Moreover, the only evidence regarding the

termination of Mr. Russell’s criminal proceedings does not indicate

8 The Court also notes that a malicious prosecution claim based on

the § 39:3-33 offense likely would fail to satisfy the unaddressed

fifth element of malicious prosecution, which requires a plaintiff

to show that “the plaintiff suffered deprivation of liberty

consistent with the concept of seizure as a consequence of a legal

proceeding.” Estate of Smith, 318 F.3d at 521. Mr. Russell

received the summons for the license plate offense after his arrest

for driving while intoxicated. (Pl.’s Dep. 79:9-20.) Mr. Russell

testified that he made a court appearance in municipal court the

week after the stop and then “every two weeks following up until”

June 26, 2012. (Id. at 92:6-8.) According to Mr. Russell, “every

time [he went] into court, they would postpone it to do something,

to do something else, and that was it, and so I never actually went

back to court to finish the matter.” (Id. at 92:21-24.) Mr.

Russell does not allege, and there is no evidence indicating, that

he was arraigned, posted bail, or encountered any other restrictions

in relation to the Municipal Court action. Rather, Mr. Russell was

required to attend court on some number of occasions. Attendance

at a hearing or trial does not qualify as a seizure for malicious

prosecution purposes under § 1983. DiBella v. Borough of Beachwood,

407 F.3d 599, 603 (3d Cir. 2005); see also Malcomb v. Dietz, 487 F.

App'x 683, 686 (3d Cir. 2012) (issuance of traffic citation and

order to appear in court did not constitute deprivation of liberty

consistent with the concept of seizure). For this additional

reason, Mr. Russell’s malicious prosecution claim for the license

plate offense cannot succeed.

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that Mr. Russell was innocent. Accordingly, Mr. Russell’s

malicious prosecution claim must fail.

IV. Conclusion

For the foregoing reasons, Defendant Jason Rigby’s Motion for

Summary Judgment is GRANTED. An appropriate order shall issue.

Dated: February 19, 2020 s/ Karen M. Williams

KAREN M. WILLIAMS

United States Magistrate Judge

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