The opinion
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ABDUL DAVIS,
Plaintiff, Civil Action No. 19-10620
v. OPINION
DENNIS BURKE, et al.,
Defendants.
John Michael Vazquez, U.S.D.J.
Pro se Plaintiff Abdul Davis alleges that multiple law enforcement members violated his
civil rights while executing an arrest warrant at his home. Presently before the Court is a motion
for summary judgment filed by Defendants Captain Dennis Burke, Lt. Carlo Capparruva, Lt.
Guerrant, Detective Manuel Cruz, Detective James Miller, Officer Kenneth Randazza, and Officer
Ryan Hanrahan (the “County Defendants”). D.E. 80. Plaintiff filed a letter in opposition to the
motion. The Court reviewed the parties’ submissions1 and considered the motion without oral
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below,
the County Defendants’ motion is GRANTED.
1 The County Defendants’ brief in support of the motion is filed at D.E. 80-3 (“Def. Br.”) and their
statement of undisputed material facts and accompanying exhibits is filed at D.E. 80-1 (“SUMF”).
Plaintiff filed a statement of material facts and accompanying exhibits at D.E. 69 (“Resp. SUMF”),
in response to the County Defendants’ first motion for summary judgment. Because the County
Defendants’ current SUMF is largely the same as the statement of material facts that it filed with
its earlier motion for summary judgment, the Court considers Plaintiff’s response in deciding the
instant motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court reviewed the facts set forth in the Third Amended Complaint when it considered
a prior motion to dismiss and incorporates that discussion herein.2 D.E. 49 at 2-4. On April 20,
2016, Plaintiff was indicted by a grand jury in New York County, New York. SUMF ¶ 1. A
warrant was issued for Plaintiff’s arrest. Id. ¶ 2. Plaintiff contests the validity of this warrant
because it was “not signed by a judge or magistrate” but by “a court clerk.”3 Resp. SUMF ¶ 2. On
April 22, 2016, Union County Sheriff’s Officers and New York City Police Officers4 went to
Plaintiff’s residence at 417 South Wood Avenue, Unit 2, Linden, New Jersey to serve Plaintiff
with the arrest warrant. TAC ¶ 13; SUMF ¶¶ 3-4, 6. On that day, Plaintiff, Shelita Funderberk,
Malik Rainey, and Yasmian Boyd Rainey were present at Plaintiff’s apartment. SUMF ¶ 5.
Funderberk is alleged to be Plaintiff’s “lady-friend.” TAC ¶ 14. “Upon approaching the front
door the officers noticed the mailbox had both Davis and Funderberk written on it.” SUMF ¶ 7.
Funderberk’s vehicle was also parked in the rear of the residence. Id. ¶ 8.
2 The facts are drawn from Plaintiff’s Third Amended Complaint, D.E. 51 (“TAC”); the SUMF;
and the Resp. SUMF. The TAC was initially filed at D.E. 12, and what appears to be an identical
copy was later filed at D.E. 51. The County Defendants agree that D.E. 51 is the operative
pleading. Def. Br. at 1.
3 Plaintiff’s opposition states as follows: “I am sending you this brief letter, in regards to the
Defendant asking for a summary judgment, without responding in regards to the warrant, which is
the key factor of this suit.” D.E. 82. In his initial Complaint, Plaintiff alleged that Defendants did
not have a warrant for his arrest. D.E. 1. The Court dismissed this claim and stated that the arrest
warrant appeared valid on its face. D.E. 5 at 5. Plaintiff did not replead any claims pertaining to
the validity of the arrest warrant. Thus, as it stands, Plaintiff’s reference to the warrant does not
appear to address any pertinent issues in this matter.
4 Plaintiff also asserts his claims against two New York City Police Department Defendants.
Neither New York City Police Officer Defendant, however, joins in the County Defendants’
motion for summary judgement.
“Plaintiff was handcuffed upon his answering of the door.” Id. ¶ 9. Plaintiff counters that
at this point, Defendants “crossed Plaintiff’s home’s threshold without authorization or without a
warrant and arrested plaintiff.” Resp. SUMF ¶ 9. Defendants then “removed Plaintiff from the
apartment and kept him on the outdoor porch” while they “secured” Funderberk and Malik Rainey.
SUMF ¶ 10.
The County Defendants next state that they “found Funderberk inside the home, at the top
of the stairs.” Id. ¶ 11. “Funderberk was arrested on the warrant.” Id. ¶ 12. The County
Defendants claim that “Plaintiff is unaware of what was said to Funderberk by Plaintiffs [sic] and
could not see the interaction either.” Id. ¶ 13. They note, however, that Funderberk signed a
consent to search form. Defendants maintain that the form was read to Funderberk and that she
had no questions or objections to the form. Id. ¶ 14. The County Defendants state that “[t]here is
no probative evidence provided by Plaintiff that Defendants coerced Funderberk to sign the
consent order.” SUMF ¶ 15. The form, titled “Permission to Search,” indicates that it was
executed by Funderberk on April 22, 2016. D.E. 65-2 at 39.
Plaintiff disagrees with the County Defendants’ narrative of the events leading up to
Funderberk signing the Permission to Search form. Plaintiff claims that he “refused to consent to
the search of his home.” Resp. SUMF ¶ 12. The County Defendants then “brought Funderberk
into the home dining room so that Plaintiff could not see their interaction with Funderberk.” Id.
Plaintiff further states that “Funderberk signed a form giving the [Defendants] consent to search
the home after [Defendants] had already search[ed] the home.” Id. ¶ 13 (emphasis in original). In
addition, Plaintiff states that “Funderberk[’s] trial testimony provided[] probative evidence that
[D]efendants coerced her to sign the consent form.” Id. ¶ 14. In support, Plaintiff points to
excerpts of Funderberk’s testimony from the underlying criminal trial. See D.E. 69 at 8-21.
The parties agree that the search resulted in the seizure of “various weapons and money
which were found in violation of” New Jersey state law. SUMF ¶ 16. “There was also mail found
inside the residence addressed to Funderberk at that address.” Id. ¶ 17. Plaintiff was placed in the
Union County Jail and later extradited to New York State, where he stood trial, was convicted and
is currently serving a sentence. SUMF ¶¶ 18-20.
Plaintiff filed this action on April 22, 2019, D.E. 1, alleging multiple constitutional
violations, D.E. 51. Specifically, Counts One and Two involve Plaintiff’s allegation that
Defendants coerced Funderberk to consent to search, and Count Three involves Funderberk’s
ability to consent. The Court construed the claims as arising under 42 U.S.C. § 1983 and denied
a prior motion to dismiss the TAC. D.E. 49. The present motion followed.5 Through their motion,
the County Defendants argue that they are entitled to qualified immunity for all three of Plaintiff’s
claims. D.E. 80.
I. LEGAL STANDARD
A moving party is entitled to summary judgment where “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 when it “might affect the outcome of the suit under the
governing law” and is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes
over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment.
5 The County Defendant initially filed a motion for summary judgment in February 2021. D.E.
65. This Court terminated the first motion for summary judgment because the County Defendants
failed to account for the Court’s reasoning in the prior opinion denying the County Defendants’
motion to dismiss. D.E. 73. The Court ordered that the County Defendants file a new motion for
summary judgment and statement of undisputed material facts that considers for this Court’s prior
opinion. Id. The County Defendants subsequently filed the instant motion and SUMF.
Id. “In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)); see
also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (citation omitted) (the court must
“view the facts in the light most favorable to the nonmoving party”). A court’s role in deciding a
motion for summary judgment is not to evaluate the evidence and decide the truth of the matter
but rather “to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the non-moving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
II. ANALYSIS
At the outset, the County Defendants argue that they are entitled to qualified immunity
because Plaintiff fails to satisfy either prong of the qualified immunity defense. See, e.g., Def. Br.
at 4. But “[t]he burden of establishing entitlement to qualified immunity” is on the party seeking
its protection. Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010) (citing Harlow v. Fitzgerald,
457 U.S. 800, 808 (1982)). Thus, the County Defendants, not Plaintiff, must establish that both
prongs of the inquiry demonstrate that they are entitled to qualified immunity. With this in mind,
the Court addresses the merits of the County Defendants’ qualified immunity argument.
Qualified immunity can protect a state actor from liability in a Section 1983 case. Wright
v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). “Qualified immunity shields
government officials from personal liability for civil damages ‘insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” George v. Rehiel, 738 F.3d 562, 571-72 (3d Cir. 2013) (quoting Harlow, 457 U.S.
at 818). A court must engage in the following two-part inquiry to determine whether qualified
immunity applies: (1) whether the facts show that the defendant’s conduct violated a constitutional
right; and (2) whether the constitutional right at issue was clearly established at the time of the
alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Courts may start their qualified immunity inquiry with either prong and “[a]n answer in the
negative to either prong entitles an officer to qualified immunity.” Peroza-Benitez v. Smith, 994
F.3d 157, 165 (3d Cir. 2021). Finally, a clearly established right is one that is “sufficiently clear
‘that every reasonable official would [have understood] that what he is doing violates that right.’”
Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). Thus, the second prong of the qualified immunity analysis “shields an officer from suit
when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the
law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(citing Saucier v. Katz, 533 U.S. 194, 206 (2001)).
A. Ability to Consent
The County Defendants contend that they are entitled to qualified immunity for Count
Three because Plaintiff does not allege a constitutional violation with respect to Funderberk’s
ability to consent. Def. Br. at 4-6. In Count Three, Plaintiff alleges that he refused consent to
search before Defendants obtained Funderberk’s consent. TAC ¶ 21. Plaintiff further alleges that
Funderberk did not live at Plaintiff’s apartment, such that she could not consent to a search. Id. ¶
33. Count Three involves Plaintiff’s Fourth Amendment rights.
“The Fourth Amendment prohibits unreasonable searches and seizures.” United States v.
Stabile, 633 F.3d 219, 230 (3d Cir. 2011) (citation omitted). “Warrantless searches and seizures
inside someone’s home . . . are presumptively unreasonable unless the occupants consent or
probable cause and exigent circumstances exist to justify the intrusion.” United States v. Coles,
437 F.3d 361, 365–66 (3d Cir. 2006) (citation omitted). In addition, a third party may provide
consent if she has common authority over the premises or effects that are searched. Stabile, 633
F.3d at 230. “Common authority rests . . . on [the] ‘mutual use of the property by persons generally
having joint access or control.’” Id. (quoting United States v. Matlock, 415 U.S. 164, 170 (1974)).
Whether common authority exists is an objective inquiry. United States v. Al-Salabi, No. 07-687,
2008 WL 2699429, at *10 (D.N.J. June 27, 2008) (explaining that a court must consider if “the
facts available to the officer at the moment warrant a man of reasonable caution in belief that the
consenting party had authority over the premises?” (quoting Illinois v. Rodriguez, 497 U.S. 177,
188-89 (1990))).
In the TAC, Plaintiff alleged that as Defendant Burke asked Funderberk for consent,
Rainey yelled that Funderberk did not live in the apartment. TAC ¶ 35. But the evidence shows
that Plaintiff was not present when they were asking Funderberk for consent, thus he was unaware
of what occurred during the exchange. Davis Dep. 21:11-23. Moreover, during the April 22
incident, Plaintiff and Rainey were never on the front porch together, id. at 24:14-18, and Plaintiff
could not hear conversations between Rainey and the police, id. at 33:19-22. Thus, no genuine
evidence supports the allegation that Rainey indicated that Funderberk did not live in the apartment
or that Plaintiff was even aware that the police asked Funderberk for consent to search. And
Plaintiff does not dispute that Funderberk’s name was on the mailbox and that both their vehicles
were parked in the back of the apartment when the County Defendants arrived. Consequently, the
evidence indicates that an objective inquiry demonstrates that Funderberk could consent to a search
of the apartment. Plaintiff provides no evidence raising a genuine dispute of material fact to the
contrary.
Plaintiff also maintains that there was a constitutional violation because he did not provide
consent. One co-tenant’s grant of consent to the police will not constitutionally authorize a search
as to a present and objecting co-tenant. Georgia v. Randolph, 547 U.S. 103 (2006). Plaintiff
alleges that he “refused to consent to the search of his home, and in response [D]efendants brought
Funderberk into the home dining room so that Plaintiff could not see their interaction with
Funderberk.” Resp. SUMF ¶ 12. While Plaintiff cited to “Exhibit D,” the Court sees no evidence
that Plaintiff refused consent or otherwise objected to the search. Indeed, Plaintiff testified at his
deposition that no one ever asked for his consent to search the property. D.E. 65-2 at 31 (Tr. 35:12-
14). Moreover, there is also no evidence demonstrating that Plaintiff and Funderberk were
together on the porch on April 22. Rather, the evidence demonstrates that Plaintiff was brought to
the porch after his arrest at the front door while other Defendants went upstairs to secure
Funderberk and Rainey. SUMF ¶¶ 10-11. Consequently, the fact that the County Defendants
solely relied on Funderberk’s consent to search the apartment does not amount to a constitutional
violation. Because no constitutional violation occurred, the Court need not address the second
prong of the qualified immunity for Count Three of the FAC. Summary judgment, therefore, is
granted as to Count Three.
B. Coerced Consent
Counts One and Two also involve Funderberk’s consent to search. Accordingly, these
counts also implicate Plaintiff’s Fourth Amendment rights. Again, “[w]arrantless searches and
seizures inside someone’s home . . . are presumptively unreasonable unless the occupants consent
or probable cause and exigent circumstances exist to justify the intrusion.” Coles, 437 F.3d at
365–66 (citation omitted). Whether a person’s consent to search a home is valid and of
constitutional force depends upon whether consent was freely given. See Schneckloth v.
Bustamonte, 412 U.S. 218, 222-23 (1973). “Where there is coercion, there cannot be consent[,]”
Bumper v. North Carolina, 391 U.S. 543, 550 (1968), and such supposed consent would be
“ineffective if extracted by the state under threat of force or under claim of government authority.”
Good v. Dauphin Cnty. Soc. Servs. for Child. & Youth, 891 F.2d 1087, 1093 (3d Cir. 1989). Courts
“determine the voluntariness of a consent by examining the totality of the circumstances.” United
States v. Price, 558 F.3d 270, 278 (3d Cir. 2009) (citation omitted). “[I]f under all the
circumstances it has appeared that the consent was not given voluntarily—that it was coerced by
threats of force, or granted only in submission to a claim of lawful authority—then we have found
the consent invalid and the search unreasonable.” Bustamonte, 412 U.S. at 233 (citation omitted).
Plaintiff points to Funderberk’s testimony from the underlying criminal trial to establish
that the County Defendants “coerced [Funderberk] to sign the consent form.” Resp. SUMF ¶ 14.
The only relevant testimony on this point is that Funderberk stated that “I did not know what I was
signing at the time. I was nervous and scared, I signed the paper, I didn’t know what I was signing,
but I was scared and nervous.” D.E. 69 at 17 (Tr. 2230:20-23). In the excerpts Plaintiff provided,
Funderberk does not attribute her nervous state to any actions by the Defendants. See Dauphin
Cnty., 891 F.2d at 1093 (noting that consent to search “is ineffective if extracted by the state under
threat of force or under claim of government authority” (emphasis added)). Again, Plaintiff
alleges that in presenting the consent form, Defendant Burke stated that “if she refused she would
be arrested” and that other Defendants “physically came and stood around Funderberk
aggressively, as if they were going to arrest Funderberk” and “[s]ome of the Defendants took out
their hand-cuffs and night-sticks.” TAC ¶ 19. But Plaintiff has not provided any evidence
corroborating those allegations. Plaintiff admittedly did not hear what was said to Funderberk,
and Plaintiff does not present any other evidence—from Funderberk or another witness—
supporting his contention. In addition, the County Defendants had an arrest warrant for
Funderberk, and according to the Investigation Report submitted by the County Defendants,
Funderberk was handcuffed on the stairway before she was brought upstairs. D.E. 65-2 at 52.6
6 The Court notes that Permission to Search form indicates that it was executed at 5:55 a.m. but
the time entries in the “Crime Scene Evidence Log” note that items were seized before 5:55 a.m.
D.E. 65-2 at 39. In addition, Funderberk testified that “[t]hey had already searched the apartment”
before she signed the Permission to Search form. D.E. 69 at 17 (Tr. 2230:8-15). Thus, there could
potentially be a constitutional violation based on the timing of the search and consent. But Plaintiff
did not assert a claim based on the timing of the consent in his pleading and it is not clear if he is
asserting this as a basis for a constitutional violation. Again, in his opposition brief, Plaintiff
focuses only on the purported warrant issue. D.E. 82. Because it is not clear that Plaintiff even
intends to assert such a claim, the Court will not consider the issue sua sponte. Finally, even if the
Court were to consider such a claim, it is not clear if Plaintiff was damaged by such a constitutional
violation. See Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000) (“Victims of unreasonable searches
Thus, it appears that Funderberk was already in handcuffs when Burke obtained her consent to
search. This evidence also undermines Plaintiff’s allegation that she was threatened with arrest if
she did not consent to the search. Because Plaintiff does not provide any evidence demonstrating
that Funderberk may have been coerced, there is no constitutional violation with respect to
Funderberk’s consent. Without a constitutional violation, the Court does not need to address the
second prong of the qualified immunity inquiry. And because the County Defendants demonstrate
that no constitutional violation occurred, summary judgment 1s granted for Counts One and Two.
Il. CONCLUSION
For the reasons stated above, the County Defendants’ motion for summary judgment (D.E.
80) is GRANTED. An appropriate Order accompanies this Opinion.
Dated: August 29, 2023
NO
John Michael Vazquez, U.S.D.J.
or seizures may recover damages directly related to the invasion of their privacy—including
(where appropriate) damages for physical injury, property damage, injury to reputation, etc.; but
such victims cannot be compensated for injuries that result from the discovery of incriminating
evidence and consequent criminal prosecution.” (quoting Townes v. City of New York, 176 F.3d
138, 148 (2d Cir. 1999))).
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