Dique v. New Jersey State Police

• Decision Date: 06 May 2010
• Docket Number: 08-2525.,No. 05-1159,05-1159
• Citation: 603 F.3d 181
• Parties: 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.
• Court: U.S. Court of Appeals — Third Circuit

603 F.3d 181

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.

Nos. 05-1159, 08-2525.

United States Court of Appeals, Third Circuit.

Argued on May 11, 2009.

Opinion filed: May 6, 2010.

David Rudovsky, Esquire (Argued), Kairys, Rudovsky, Messing and Feinberg, LLP, Philadelphia, PA, Benjamin Levine, Esquire, Lesnevich & Marzano-Lesnevich, Hackensack, NJ, 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, Trenton, NJ, Tamara L. Rudow, Esquire, Weber, Gallagher, Simpson, Stapleton, Fires & Newby, Philadelphia, PA, for Appellees

New Jersey State Police; State of New Jersey; D.L. Pagano; Carson Dunbar.

Leonard C. Leicht, Esquire (Argued), Morgan, Melhuis, Abrutyn, Livingston, NJ, for Appellees John Mulvey and G. Vona.

Before: AMBRO, ROTH and ALARCÓN^*, Circuit Judges.

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 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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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, 127 S.Ct. 1091, 166 L.Ed.2d 973 (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 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.

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 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, 127 S.Ct. 1091, 166 L.Ed.2d 973 (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.

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. Seijas, 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, 105 S.Ct. 2427, 85 L.Ed.2d 791 (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, 127 S.Ct. 1091. A section 1983 claim is characterized as a personal-injury claim and thus is governed by the applicable state's statute of 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, 105 S.Ct. 1938, 85 L.Ed.2d 254 (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, 347 N.J.Super. 11, 788 A.2d 867, 878 (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'Agostini, 166 N.J. 237, 765 A.2d 182, 187 (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, 62 N.J. 267, 300 A.2d 563, 565 (1973); see Lapka v. Porter Hayden Co., 162 N.J. 545, 745 A.2d 525, 530 (2000).

Federal law, on the other hand, governs the issue of what constitutes accrual. Wallace, 549 U.S. at 388, 127 S.Ct. 1091. Accrual is the 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, 118 S.Ct. 542, 139 L.Ed.2d 553 (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, 127 S.Ct. 1091 (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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), that a claim for...