Montgomery v. De Simone

• Decision Date: 16 October 1998
• Docket Number: No. 97-5179,97-5179
• Citation: 159 F.3d 120
• Parties: Rosemary MONTGOMERY, Appellant, v. Jeffrey DE SIMONE, PTL. a/k/a Joseph De Simone, PTL; Township of Brick; County of Ocean; Brick Township Police Department; John Doe, Individually and as an employee of the Brick Township Police Department.
• Court: U.S. Court of Appeals — Third Circuit

Page 120

159 F.3d 120

Rosemary MONTGOMERY, Appellant, v. Jeffrey DE SIMONE, PTL. a/k/a Joseph De Simone, PTL;

Township of Brick; County of Ocean; Brick Township Police

Department; John Doe, Individually and as an employee of

the Brick Township Police Department.

No. 97-5179.

United States Court of Appeals, Third Circuit.

Argued March 24, 1998.

Decided Oct. 16, 1998.

William J. Farley, Jr. (Argued), Manasquan, NJ, for Appellant.

Michael E. Wilbert (Argued), Ben A. Montenegro, Wilbert & Montenegro, Brick Town, NJ, for Appellee Joseph De Simone.

Steven N. Cucci, Cucci & McCarthy, Brick, NJ, for Appellee Township of Brick and Brick Township Police Department.

Before: MANSMANN, ROTH and McKEE, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Rosemary Montgomery appeals from the entry of summary judgment against her in her suit brought pursuant to 42 U.S.C. § 1983 which arises out of the events surrounding her arrest on September 30, 1992. Montgomery alleges that Officer Jeffrey De Simone did not have probable cause to stop and arrest her for speeding and drunk driving. She accordingly brought several section 1983 claims against Officer De Simone, including a claim based on malicious prosecution.

In this appeal, we are asked to determine whether Montgomery's convictions, which were overturned upon de novo review, conclusively establish probable cause and necessarily negate any possibility that Montgomery could establish her section 1983 malicious prosecution claim. We hold that they do not. Accordingly, because we find that Montgomery has raised a genuine issue of material fact as to probable cause, we will reverse the district court's grant of summary judgment in favor of Officer De Simone on Montgomery's section 1983 malicious prosecution claim and will remand this case for further proceedings.

In addition, we find that, as a matter of law, the two year limitations period for Montgomery's section 1983 false arrest and false imprisonment claims began to run on the night of Montgomery's arrest and that her claims against the municipal defendants fail because Montgomery's allegations are insufficient to establish municipal liability. Accordingly, we will affirm the district court's order dismissing those claims.

I.

On September 30, 1992, Officer Jeffrey De Simone stopped Rosemary Montgomery, arrested her and charged her with speeding, driving while intoxicated, and refusing to take a breathalyzer test. At Montgomery's municipal hearing, Officer De Simone testified that he stopped Montgomery because she was traveling at approximately 55 m.p.h. in a 40 m.p.h. zone. De Simone testified that he estimated Montgomery's speed prior to the stop based on his own observation and a radar reading. According to De Simone, when he stopped Montgomery he detected a strong odor of alcohol on her breath. De Simone testified that Montgomery had difficulty locating her license in her wallet, could not open the glove box and became frustrated when De Simone opened the glove box with ease. According to De Simone, Montgomery could not recite the alphabet when asked to do so and failed two field sobriety tests. De Simone stated that Montgomery's eyes were "watery," her speech was "slightly slurred," and that "she was swaying and staggering" when standing and walking.

De Simone further testified that during the stop, a second car pulled up to ask directions. De Simone then instructed Montgomery to drive her car across the road to a vacant parking lot so that he might attend to the second car. He subsequently drove to where she was parked and took her to the police station. At the police station De Simone advised Montgomery for the first time that she was under arrest, read her her Miranda rights, and asked her to take a breathalyzer test. Montgomery refused the test.

Montgomery's testimony at her municipal trial painted a dramatically different picture of the events surrounding her arrest. According to Montgomery, she had just returned from a transcontinental flight and had met a friend for dinner. She testified, and her friend corroborated, that she did not have any alcoholic beverages with dinner. She further testified, and her friend corroborated, that she ordered one Irish coffee after dinner and that the bartender had refilled her same cup with regular coffee after she finished most of the Irish coffee. Montgomery's friend further testified that Montgomery did not appear to be intoxicated and that they parted company at approximately 11:20 p.m.

Montgomery testified that after leaving her friend's house, she had been stopped at a red light which was located less than one tenth of a mile from the intersection where De Simone testified she was traveling at 55 m.p.h. In her deposition in this case, Montgomery further testified that she could not have been exceeding the speed limit in that short distance in her Hyundai and that she knows she was not speeding. She also testified that De Simone lied at her municipal trial.

At her municipal trial, Montgomery testified that she did have trouble finding her license for De Simone because it was mixed in with receipts from her overseas trip. She also testified that she had trouble opening the glove compartment because it always sticks but that she eventually opened it herself without the help of De Simone. According to Montgomery, she recited the alphabet correctly when asked but De Simone never asked her to leave her vehicle for sobriety tests.

Montgomery testified that at one point during the stop De Simone stated "I shouldn't be doing this but would you pull across to behind Wall Street and wait for me?" Montgomery testified that she was unaware of anyone stopping and asking for directions. After she waited in the parking lot for about five to ten minutes, De Simone pulled up behind her with no overhead lights on. De Simone got out of the car and his demeanor changed. De Simone asked Montgomery if she liked policemen and if she dated them. Montgomery testified that she was very uncomfortable and tried to change the subject and that De Simone then offered her a ride home. She told De Simone that he would have to leave his jurisdiction to give her a ride and he then offered to take her to the station to make a phone call. Montgomery testified that De Simone's demeanor again changed and he became sullen. When they arrived at the station, De Simone advised Montgomery for the first time that she was under arrest and read her her rights. Another of Montgomery's friends picked her up at the police station around 2:00 a.m. and testified that Montgomery did not appear drunk and that Montgomery told her that she had only had two Irish coffees that night.

The municipal court judge found that there was probable cause for the stop and the arrest for drunk driving based entirely upon De Simone's testimony. In addition, after hearing all the testimony offered, the municipal judge found Montgomery guilty of speeding, drunk driving, and refusing to take a breathalyzer test. Montgomery appealed her convictions.

On February 4, 1994, a trial de novo was held in the Superior Court of New Jersey. The court reversed Montgomery's convictions entering not guilty verdicts on all charges. The Superior Court judge expressed doubt as to whether Montgomery was speeding, given her testimony that she had been stopped at a light just a short distance from where De Simone claimed she was exceeding the speed limit. In addition, the judge expressed doubt as to whether De Simone actually thought Montgomery was drunk given that De Simone ordered her to drive her car across four lanes of traffic to a vacant parking lot after she allegedly failed several sobriety tests.

On February 1, 1995, Montgomery filed a complaint in the District Court of New Jersey alleging a section 1983 claim for malicious prosecution, section 1983 false arrest and false imprisonment claims arising out of her arrest and temporary detention on September 30, 1992, section 1983 claims against the township and police department (collectively the "municipal defendants") based on De Simone's actions, and several state law claims relating to her arrest. On March 11, 1997, the district court filed an order holding that (1) Montgomery's section 1983 claim for malicious prosecution failed as a matter of law because the municipal judge had reasonably determined that probable cause existed for the arrest; (2) the two year statute of limitations for Montgomery's section 1983 false arrest and false imprisonment claims began to run on the date of her arrest and those claims were therefore time barred; and (3) Montgomery's section 1983 claims against the municipal defendants should be dismissed because Montgomery failed to produce evidence that would raise a genuine issue of material fact on those claims. ¹ Montgomery timely filed this appeal. ²

II.

In order to prevail on her section 1983 malicious prosecution claim, Montgomery must establish, among other things, an absence of probable cause for the initiation of the proceedings against her. See Rose v. Bartle, 871 F.2d 331, 349 (3d Cir.1989)(citing Lee v. Mihalich, 847 F.2d 66, 69-70 (3d Cir.1988)). The district court granted summary judgment on Montgomery's section 1983 malicious prosecution claim based upon the premise that the municipal judge's finding of probable cause for her arrest negated any possibility that Montgomery could establish an absence of probable cause for purposes of her section 1983 malicious prosecution claim.

We have held that the question of probable cause in a section 1983 damage suit is one for the jury. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir.1978). Summary judgment on Montgomery's malicious prosecution claim therefore is only appropriate if taking all of Montgomery's allegations as true and resolving all inferences in her favor, a reasonable jury could not find a lack of probable cause for Montgomery's stop and arrest. Deary v. Three Un-Named Police...