Dique v. New Jersey State Police

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 05-1159 & 08-2525

WALTER DIQUE,

Appellant

v.

NEW JERSEY STATE POLICE; STATE OF NEW JERSEY;

C.L. PAGANO; CARSON DUNBAR; JOHN MULVEY; G.

VONA; M. SANCHEZ; JOHN DOE 1-10

On Appeal from the United States District Court

for the District of New Jersey

(D. C. No. 2-04-cv-00563)

District Judge: Hon. Katharine S. Hayden

Argued on May 11, 2009

Before: AMBRO, ROTH and ALARCÓN*, Circuit Judges

(Opinion filed: May 6, 2010)

David Rudovsky, Esquire (Argued)

Kairys, Rudovsky, Messing and Feinberg, LLP

718 Arch Street, Suite 501 South

Philadelphia, PA 09106

Benjamin Levine, Esquire

Lesnevich & Marzano-Lesnevich

21 Main Street

Court Plaza South

Hackensack, NJ 07601

Counsel for Appellant Walter Dique

Anne Milgram

Attorney General of New Jersey

Lewis A. Scheindlin, Esquire

Assistant Attorney General

Larry R. Etzweiler, Esquire (Argued)

Senior Deputy Attorney General

Wendy A. Reek, Esquire

Richard J. Hughes Justice Complex

25 Market Street

P. O. Box 112

Trenton, NJ 08625

*Honorable Arthur L. Alarcón, Senior United States

Circuit Judge for the Ninth Circuit, sitting by designation.

2

Tamara L. Rudow, Esquire

Weber, Gallagher, Simpson, Stapleton, Fires & Newby

2000 Market Street, Suite 1300

Philadelphia, PA 19103

Counsel for Appellees New Jersey State

Police; State of New Jersey; D. L.

Pagano; Carson Dunbar

Leonard C. Leicht, Esquire (Argued)

Morgan, Melhuis, Abrutyn

651 West Mount Pleasant Avenue, Suite 200

Livingston, NJ 07039-1673

Counsel for Appellees John Mulvey and

G. Vona

OPINION

ROTH, Circuit Judge:

This appeal presents the question of when Walter Dique’s

Fourteenth Amendment selective-enforcement claim accrued.

Dique appeals the District Court’s final order, granting summary

judgment in favor of Clinton Pagano, John Mulvey, and Glen

Vona (Officers) on his claim because it was time barred. Dique

3

argues that he timely filed suit because his claim accrued in

April 2002, when his conviction was vacated; the Officers, by

contrast, argue that the claim accrued in January 1990, when the

wrongful conduct occurred.

In Gibson v. Superintendent of New Jersey Department

of Law & Public Safety—Division of State Police, 411 F.3d 427

(3d Cir. 2005), we held, relying on the rule of Heck v.

Humphrey, 512 U.S. 477 (1994), that the statute of limitations

for a selective-enforcement claim “did not begin to run until

[the] sentence was vacated.” Gibson, 411 F.3d at 441. We

believe, however, that the Supreme Court’s decision in Wallace

v. Kato, 549 U.S. 384 (2007), which clarified the Heck rule,

extends to Fourteenth Amendment selective-enforcement claims

and thus overrides our decision in Gibson.

I. BACKGROUND

A. Facts

On January 7, 1990, Walter Dique was the victim of

racial profiling.1 At about 10 p.m. that night, Dique was driving

a livery car for hire on the New Jersey Turnpike. Dique is a

native of Colombia; his two passengers were Hispanic. Mulvey,

a state trooper, drove up behind Dique and flashed his overhead

1

Because Dique appeals from an order granting summary

judgment, we view the evidence in the light most favorable to

Dique and accept his allegations as true. See, e.g., Groman v.

Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).

4

lights. Dique pulled over to the side of the road. According to

Mulvey, he stopped Dique for a speeding violation. Mulvey

then ordered Dique out of the car because the traffic noise and

Dique’s accent made it difficult for Mulvey to hear Dique’s

responses to his questions. During questioning, Mulvey noticed

that one of the passengers had a “white powdery substance in his

mustache.” This prompted Mulvey to seek Dique’s written

consent to search the car. Dique consented. Mulvey found

drugs in the car, and he and trooper Vona, who had arrived at

the scene, arrested Dique and the two passengers.2

Nine years later, in June 1999, Dique was convicted in

state court on drug-related charges, arising from the stop.3 He

was sentenced to fifteen years in prison. In April 2002,

however, the State of New Jersey moved to vacate Dique’s

conviction and dismiss the indictment because “colorable issues

of racial profiling” existed at the time of the arrest. Dique was

released from prison three days later.

2

The third appellee, Pagano, was the superintendent of the

New Jersey police department at the time of Dique’s arrest.

3

Officers contend that the nine-year gap was attributed to

Dique becoming a fugitive. This contention cannot be

confirmed by the Record. We are not, however, concerned with

ascertaining the cause of the gap because it is inconsequential

for purposes of this appeal.

5

B. District Court Proceedings

In February 2004, Dique filed suit based on the January

1990 traffic stop, alleging violations of federal law, including 42

U.S.C. §§ 1983 and 1985, and of state law. His list of

defendants included the New Jersey State Police, the State of

New Jersey, and the Officers.4 Dique alleged two section 1983

claims: the first claim’s underlying constitutional violation was

a Fourth Amendment claim for false arrest, and the second’s

was a Fourteenth Amendment claim for selective-enforcement.5

In December 2004, the District Court dismissed Dique’s

federal law claims under Federal Rule of Civil Procedure

12(b)(6) because they were time barred; the court declined to

exercise supplemental jurisdiction over his remaining state law

claims. Dique appealed. In December 2005, we, at the parties’

request, issued a limited remand to the District Court “as to

Dismissal of [Dique’s] Fourth Amendment False Arrest Claim

4

The three Officers are the only remaining are the only

remaining defendants-appellees.

5

To establish a selective-enforcement claim, a plaintiff must

demonstrate (1) that he was treated differently from other

similarly situated individuals, and (2) “that this selective

treatment was based on an ‘unjustifiable standard, such as race,

or religion, or some other arbitrary factor, . . . or to prevent the

exercise of a fundamental right.’” Hill v. City of Scranton, 411

F.3d 118, 125 (3d Cir. 2005) (quoting Holder v. City of

Allentown, 987 F.2d 188, 197 (3d Cir. 1993)).

6

and Fourteenth Amendment Selective Enforcement Claim as

Barred by the Statute of Limitations” in light of our decision in

Gibson, 411 F.3d 427. We retained jurisdiction of the appeal.

On remand, the District Court ruled that Dique’s two §

1983 claims survived in light of Gibson, and it allowed

discovery to proceed. During discovery, the Supreme Court

decided Wallace v. Kato, 549 U.S. 384 (2007). Based on

Wallace, the Officers filed summary judgment motions,

contending that the statute of limitations barred Dique’s claims.

The District Court granted the motions, holding that at no time

following Dique’s arrest in 1990 was there a bar to his bringing

a civil complaint because Dique’s claims did not “necessarily

implicate the conviction.” 6 Analyzing Dique’s selective-

enforcement claim, the court concluded that it had accrued in

January 1990, but that principles of equitable tolling delayed the

running of the statute of limitations until July 24, 2001. On that

date, Dique’s counsel had submitted a certification to a New

Jersey state court that he was aware of 90,000 pages of

documents which revealed a state-wide practice of selective

enforcement based on race. The State, after withholding the

documents for some time, had released them in April 1999 and

November 2000. Thus, the District Court concluded that by July

2001 – over two years before Dique filed suit – Dique had

information vital to his selective-enforcement claim.

6

As we noted in Gibson, a successful claim of selective-

enforcement “would have necessarily invalidated Gibson’s

conviction . . ..” Gibson, 411 F.3d at 441. Thus, success in the

selective-enforcement claim would implicate the conviction.

7

Dique appeals the District Court’s order, arguing that it

erred in holding that his selective-enforcement claim was time

barred.7 We ordered the Clerk of this Court to vacate the stay in

the earlier appeal and to consolidate it with this one.

II. DISCUSSION

We have jurisdiction over this consolidated appeal from

final orders of the District Court under 28 U.S.C. § 1291. We

review the District Court’s grant of summary judgment de novo.

E.g., DIRECTV Inc. v. Siejas, 508 F.3d 123, 125 (3d Cir. 2007).

Furthermore, we apply the same standard as the District Court

in determining whether summary judgment was appropriate.

E.g., U.S. ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88,

94 (3d Cir. 2009).

A. Dique’s Fourteenth Amendment selective-

enforcement claim

Section 1983 does not create substantive rights.

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). It, instead,

provides a federal cause of action for the violation of a federal

right. See id. State law, however, determines when the claim

accrues; state law provides the statute of limitations applicable

to a section 1983 claim. See Wallace, 549 U.S. at 387. A

section 1983 claim is characterized as a personal-injury claim

and thus is governed by the applicable state’s statute of

7

On appeal, Dique abandons his Fourth Amendment false-

arrest claim.

8

limitations for personal-injury claims. Cito v. Bridgewater Twp.

Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989). New Jersey, as

the parties agree, is the applicable state here; it mandates a two-

year statute of limitations period for personal-injury torts. N.J.

Stat. Ann. § 2A:14–2 (West 2004). Thus, a section 1983 claim

arising in New Jersey has a two-year statute of limitations. See

Montgomery v. De Simone, 159 F.3d 120, 126 n.4 (3d Cir.

1998).

State law, unless inconsistent with federal law, also

governs the concomitant issue of whether a limitations period

should be tolled. Wilson v. Garcia, 471 U.S. 261, 269 (1985),

superseded by statute on other grounds, 28 U.S.C. § 1658(a);

Ammlung v. City of Chester, 494 F.2d 811, 815 (3d Cir. 1974).

Under New Jersey law, a statute of limitations can be tolled

based upon equitable principles, including the discovery rule.

Freeman v. State, 788 A.2d 867, 878 (N.J. Super. Ct. App. Div.

2002). The discovery rule postpones a claim from accruing if a

plaintiff is reasonably unaware that he has suffered an injury or,

even though he is aware of the injury, that it was the fault of an

identifiable person. See Caravaggio v. D’Agnostini, 765 A.2d

182, 187 (N.J. 2001). As set out by the New Jersey Supreme

Court, the accrual of the claim will be postponed until the

“injured party discovers, or by exercise of reasonable diligence

and intelligence should have discovered[,] that he may have a

basis for an actionable claim.” Lopez v. Swyer, 300 A.2d 563,

565 (N.J. 1973); see Lapka v. Porter Hayden Co., 745 A.2d 525,

530 (N.J. 2000).

Federal law, on the other hand, governs the issue of what

constitutes accrual. Wallace, 549 U.S. at 388. Accrual is the

9

occurrence of damages caused by a wrongful act – “when a

plaintiff has ‘a complete and present cause of action,’ that is,

when ‘the plaintiff can file suit and obtain relief.’” Id. (quoting

Bay Area Laundry and Dry Cleaning Pension Trust Fund v.

Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). As the Court

in Wallace explained, “‘the tort cause of action accrues, and the

statute of limitations commences to run, when the wrongful act

or omission results in damages.’” Id. at 391 (quoting 1 Calvin

W. Corman, Limitation of Actions § 7.4.1 (1991)).

The parties’ dispute hinges on when Dique’s claim

accrued. What blurs the application here of the accrual rule –

that a claim accrues when the wrongful act results in damages

– is the decision in Heck v. Humphrey, 512 U.S. 477 (1994), that

a claim for malicious prosecution accrues only where “the

conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question

by a federal court’s issuance of a writ of habeas corpus.” See id.

at 486–87 (footnote omitted). The Court held that Heck’s claim

was not cognizable under section 1983 because recovery would

“necessarily imply the invalidity” of his outstanding conviction.

Id. at 486–87. The Court commented that “the hoary principle

that civil tort actions are not appropriate vehicles for challenging

the validity of outstanding criminal judgments applies to section

1983 damages actions that necessarily require the plaintiff to

prove the unlawfulness of his conviction or confinement.” Id.

at 486. Heck left open the question of whether a claim is

cognizable under section 1983 if its success would necessarily

imply the invalidity of a future conviction.

10

Following up on this open question, in Smith v. Holtz, 87

F.3d 108 (3d Cir. 1996), we approved the application of Heck to

future convictions in holding “that a claim that, if successful,

would necessarily imply the invalidity of a conviction on a

pending criminal charge is not cognizable under § 1983.” Id. at

113.8 We reasoned that, “[i]n terms of the conflicts which Heck

sought to avoid, there is no difference between a conviction

which is outstanding at the time the civil rights action is

instituted and a potential conviction on a pending charge that

may be entered at some point thereafter.” Id.

Then in Gibson, we applied Heck to defer accrual of a §

1983 selective-enforcement claim in which, at the time the

8

Sister courts of appeal have also extended Heck to

preconviction situations in which a § 1983 claim, if successful,

would necessarily imply the invalidity of a potential or future

conviction. See, e.g., Fox v. DeSoto, 489 F.3d 227, 234 (6th Cir.

2007) (“This court, drawing on the reasoning in Heck . . . ,

joined other courts in extending application of Heck . . . to

certain pre-conviction circumstances. As a result, we held that

when a § 1983 claim would imply the invalidity of a future

conviction, the statute of limitations would not begin to run until

the criminal charges have been dismissed” (alteration in

original) (footnote omitted)); Harvey v. Waldron, 210 F.3d

1008, 1014 (9th Cir. 2000); Beck v. City of Muskogee Police

Dept., 195 F.3d 553 (10th Cir. 1999); Covington v. City of N.Y.,

171 F.3d 117, 124 (2d Cir. 1999); Uboh v. Reno, 141 F.3d 1000,

1006–07 (11th Cir. 1998); Washington v. Summerville, 127 F.3d

552, 556 (7th Cir. 1997).

11

wrongful act resulted in damages, there was no outstanding

conviction but only the prospect of a future conviction. See

Gibson, 411 F.3d at 431–33, 441. Gibson brought a § 1983

action in which he asserted, inter alia, a Fourth Amendment

false arrest claim and a Fourteenth Amendment selective-

enforcement claim. See Gibson, 411 F.3d at 432. The facts in

Gibson mirror those in this case. In 1992, Gibson, an African-

American, was arrested after the car in which he was a

passenger was pulled over on the New Jersey Turnpike. The

New Jersey police officers found drugs and arrested Gibson and

the other occupants of the car. Gibson was then convicted of

state drug-related offenses in 1994. In 2002, however, Gibson’s

conviction was vacated because of colorable racial-profiling

issues. Id. at 432. Gibson filed suit in 2002.9 The District

Court dismissed Gibson’s claims because they were barred by

the statute of limitations. Id. at 431.

We reversed, allowing Gibson to proceed with his § 1983

claims because we concluded that they accrued when his

conviction was vacated in 2002. Id. at 441, 446. Analyzing the

selective-enforcement claim, we reasoned that “[b]ecause a

successful claim of selective enforcement under the Fourteenth

Amendment Equal Protection Clause would have necessarily

invalidated Gibson’s conviction, under the Heck deferred

accrual rule the statute of limitations did not begin to run until

9

Gibson was also, like Dique, aware of the documents

revealing a state-wide practice of selective enforcement based

on race that the State released in April 1999 and November

2000. See Gibson, 411 F.3d at 445.

12

his sentence was vacated and this claim is not untimely.” Id. at

441.

Dique argues that Gibson is binding precedent that we

must follow. The Officers, by contrast, argue that the

Supreme’s Court 2007 decision in Wallace repudiates Gibson

and mandates accrual when the wrongful conduct occurred.

Because an intervening Supreme Court decision is a “sufficient

basis for us to overrule a prior panel’s opinion,” we are able to

bypass our general rule of not overruling a prior panel’s opinion

without referring the case to the full Court. E.g., Lebanon

Farms Disposal, Inc. v. County of Lebanon, 538 F.3d 241, 250

n.16 (3d Cir. 2008).

In Wallace, the Court refused to extend Heck to a § 1983

claim for false arrest in which there was no outstanding

conviction at the time of the accrual, i.e., the arrest. See

Wallace, 549 U.S. at 393. The Court held that “the statute of

limitations upon a § 1983 claim seeking damages for a false

arrest in violation of the Fourth Amendment, where the arrest is

followed by criminal proceedings, begins to run at the time the

claimant becomes detained pursuant to legal process.” Id. at

397. The Court also clarified that the Heck bar is applicable

only when, at the time the § 1983 suit would normally accrue,

there is an existing criminal conviction:

“[T]he Heck rule for deferred accrual is called

into play only when there exists a conviction or

sentence that has not been . . . invalidated, that is

to say, an outstanding criminal judgment. It

13

delays what would otherwise be the accrual date

of a tort action until the setting aside of an extant

conviction which success in that tort action would

impugn.”

Id. at 393 (internal quotation marks omitted). The Court

clarified that it was not holding that “an action which would

impugn an anticipated future conviction cannot be brought until

that conviction occurs and is set aside.” Id.

The impracticality of such a rule should be

obvious. In an action for false arrest it would

require the plaintiff (and if he brings suit

promptly, the court) to speculate about whether a

prosecution will be brought, whether it will result

in conviction, and whether the pending civil

action will impugn that verdict, all this at a time

when it can hardly be known what evidence the

prosecution has in its possession. And what if the

plaintiff (or the court) guesses wrong, and the

anticipated future conviction never occurs,

because of acquittal or dismissal? Does that event

(instead of the Heck-required setting aside of the

extant conviction) trigger accrual of the cause of

action? Or what if prosecution never

occurs—what will the trigger be then?

Id. (citations omitted). Following Wallace, we will not embrace

this “bizarre extension of Heck,” and, accordingly, we hold that

14

Gibson’s (and Smith’s) interpretation of Heck is now supplanted

by Wallace. Henceforth, in a case of selective-enforcement we

will no longer require that the complainant have been convicted

and have had that conviction reversed, expunged or invalidated.

If we were to do so, we would be putting the complainant in the

“bizarre extension of Heck” where the cause of action might

never accrue if there were no prosecution or if there were a

dismissal or an acquittal.

Under Wallace then, the statute of limitations “beg[an] to

run at the time [Dique] bec[ame] detained pursuant to legal

process.” See Wallace, 549 U.S. at 397. When Dique was

stopped on the New Jersey Turnpike, as the Court in Wallace

stated, “there was in existence no criminal conviction that the [§

1983] cause of action would impugn; indeed, there may not even

have been an indictment.” 549 U.S. at 393. Nor, at that time,

could one determine if there would ever be an indictment or a

conviction – this is an important distinction from a Heck-type

case in which malicious prosecution involves the indictment and

trial process, along with the conviction.

Although, as we just noted, a Fourteenth Amendment

selective-enforcement claim will accrue at the time that the

wrongful act resulting in damages occurs, Dique’s claim did not

accrue until July 2001 because the discovery rule postponed

accrual. In 1990 he was reasonably unaware of his injury

because Mulvey purported to stop his car for a speeding

violation. It was not until July 2001, when his attorney became

aware of the extensive documents describing the State’s

15

pervasive selective-enforcement practices, that Dique

discovered, or by exercise of reasonable diligence should have

discovered, that he might have a basis for an actionable claim.

His claim accrued at that time. Because he asserted his

selective-enforcement claim over two years later, the statute of

limitations bars it.10

B. Dique’s remaining arguments

Dique also argues that the District Court erred in its

December 2004 order in dismissing his 42 U.S.C. § 1985

conspiracy claim under Federal Rule of Civil Procedure

12(b)(6). We review the District Court’s decision to dismiss

10

Throughout his briefing, Dique refers interchangeably to a

Fourteenth Amendment selective-prosecution claim, likely

because a selective-prosecution claim could possibly benefit

from the Heck bar. But the two are different Fourteenth

Amendment claims. Compare Hill, 411 F.3d at 125 (stating the

elements of a selective-enforcement claim), with Gov’t of Virgin

Islands v. Harrigan, 791 F.2d 34, 36 (3d Cir. 1986) (stating the

elements of a selective-prosecution claim). Dique failed to raise

a selective-prosecution claim in his pleadings or motions before

the District Court. As such, it is waived on appeal. E.g.,

DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 n.1 (3d Cir. 2007)

(“It is well established that arguments not raised before the

District Court are waived on appeal.”); Huber v. Taylor, 469

F.3d 67, 74 (3d Cir. 2006).

16

under Rule 12(b)(6) de novo. E.g., Phillips v. County of

Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).

Dique’s argument fails for two reasons. First, he waived

this argument by not raising it before the District Court. His

complaint merely lists 42 U.S.C. § 1985 in a list of statutes

conferring jurisdiction. He, however, did not provide the

elements of the claim in any of the seven counts (nor, for that

matter, anywhere else in the complaint). See Ammlung, 494

F.2d at 814 (holding that Ammlung’s complaint failed to plead

a conspiracy claim because she neglected to assert any facts

related to the claim’s elements). Second, even if we found the

argument had been preserved, the statute of limitations had

expired. A section 1985 claim accrues when a plaintiff knew or

should have known of the alleged conspiracy. Bougher v. Univ.

of Pitts., 882 F.2d 74, 80 (3d Cir. 1989). The New Jersey two-

year statute of limitations applies to section 1985 claims and

runs from the date of each overt act causing damage to a

plaintiff. See Cito, 892 F.2d at 25; Bougher, 882 F.2d at 80.

Because Dique was reasonably unaware of his injury based on

the Officers’ alleged conspiracy, the discovery rule postponed

accrual until July 2001. Due to the fact, however, that he filed

his conspiracy claim more than two years later, it, like his

selective-enforcement claim, is time barred.11

11

Dique’s final argument is incoherent. He simply states that

Pagano “is properly named as a party because of his direct

involvement in the constitutional violations.” But the District

Court never even intimated otherwise. Moreover, whether

17

III. CONCLUSION

For the reasons explained above, we conclude that the

two-year statute of limitations bars Dique’s 42 U.S.C. §§ 1983

and 1985 claims. We will thus affirm the District Court’s order

granting summary judgment for the Officers.

Pagano is properly joined in this suit is immaterial since the

statute of limitations bars disposition on the merits.

18