Derrick Gilliam v. Stephen Cavallaro ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1458
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DERRICK D. GILLIAM,
Appellant
v.
STEPHEN E. CAVALLARO, Individually and in his Official Capacity;
NICHOLAS J. RUSSO, Individually and in his Official Capacity;
JACK MANNING, Individually and in his Official Capacity;
BOROUGH OF GLASSBORO; COUNTY OF GLOUCESTER;
RAYMOND D. GIORDANO, Individually and in his Official Capacity;
STATE OF NEW JERSEY
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-21-cv-16844)
District Judge: Honorable Noel L. Hillman
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 9, 2023
Before: AMBRO*, KRAUSE, and SCIRICA, Circuit Judges
(Opinion filed: February 23, 2023)
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OPINION**
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*
Judge Ambro assumed senior status on February 6, 2023
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Derrick Gilliam appeals pro se from an order of the United States District Court
for the District Court of New Jersey sua sponte dismissing his second amended complaint
brought under 42 U.S.C. § 1983. For the following reasons, we will affirm in part, vacate
in part, and remand to the District Court for further proceedings.
I.
Gilliam alleges in his second amended complaint that, on April 12, 2013, he struck
a pedestrian with his vehicle, and the pedestrian later died from his injuries. On the
scene, defendant Jack Manning, a police officer, smelled alcohol on Gilliam’s breath and
observed an open container of vodka in his vehicle. Another officer, defendant Stephen
Cavallaro, overheard Gilliam tell bystanders that he had consumed one alcoholic drink.
Defendant Raymond Giordano then transported Gilliam to police headquarters, where
Gilliam refused to perform a field sobriety test. The officers did not administer a
breathalyzer test. Cavallaro arrested Gilliam for obstruction of justice and transported
him to a hospital to obtain a blood sample. Gilliam further alleges that he would not
consent to a blood draw, and the officers did not attempt to obtain a search warrant to
compel the same. Instead, Cavallaro told Gilliam that he was required to provide a blood
sample, and that if he refused, they would use a reasonable degree of force to obtain the
sample. When Gilliam expressed further hesitation due to his fear of needles, the officers
allegedly warned him that they would hold him down and take his blood if he did not
consent. Gilliam then consented and had his blood drawn.
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Gilliam avers that he was subsequently released from custody, and on April 25,
2013, he was arrested in his home for first-degree reckless vehicular homicide. In his
state criminal proceedings, the trial court denied his motion to suppress his blood test
results in 2017; Gilliam ultimately pleaded guilty to second-degree reckless vehicular
homicide and was sentenced to a five-year prison term. The obstruction charge was
dismissed. Gilliam alleges that in January 2021, the Appellate Division of the New
Jersey Superior Court determined that the warrantless blood draw was an unreasonable
search of his person, vacated his plea, and remanded for trial. See State v. Gilliam, 2021
WL 79181, at *5-8 (N.J. Super. Ct. 2021) (per curiam). Gilliam was released from the
State’s custody and is currently incarcerated in federal prison pursuant to an unrelated
conviction.
On September 13, 2021, Gilliam filed a pro se complaint against the arresting
officers, the Borough of Glassboro, and Gloucester County. After Gilliam amended the
complaint once, he requested leave to file a second amended complaint to add the State of
New Jersey as a defendant and bring additional claims. In addition to his original claims
under 42 U.S.C. §§ 1983, 1985 relating to unreasonable search and seizure, excessive
force, civil conspiracy, failure to train the officers, and intentional infliction of emotional
distress, Gilliam sought to add constitutional claims for false arrest, malicious
prosecution, abuse of procedural due process, and assault and battery. The District Court
granted leave to amend the complaint but, upon screening the second amended complaint
pursuant to 28 U.S.C. § 1915A(a), dismissed his claims either as time barred or for
failure to state a claim upon which relief could be granted. Gilliam appealed.
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II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we exercise plenary review
over a District Court’s sua sponte dismissal of a complaint pursuant to § 1915A. Dooley
v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). Under § 1915A, district courts must review
“a complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.” See 28 U.S.C. § 1915A(a). If
the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be
granted,” the Court must dismiss it. See id. § 1915A(b)(1). As a pro se litigant, Gilliam
is entitled to liberal construction of his complaint. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam).
III.
First, Gilliam argues on appeal that the District Court erred in concluding that the
State of New Jersey is immune from suit under the Eleventh Amendment because he is a
citizen of the State of New Jersey. That contention is without merit. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (stating that “an unconsenting State
is immune from suits brought in federal courts by her own citizens as well as by citizens
of another state”) (citation omitted).
Gilliam further argues that the District Court should not have dismissed his claims
as time barred because he did not know that the officers lacked authority to compel a
warrantless blood draw until his conviction was vacated in 2021. But the statute of
limitations begins to run when a claimant is aware of the harm underlying his claims, not
the illegality of the harm. See Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769
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F.3d 850, 861 (3d Cir. 2014). As explained by the District Court, all of the time-barred
claims arose from the blood draw or Gilliam’s arrest, both of which occurred in 2013,
and the two-year statute of limitations expired in 2015. Further, even if Gilliam were
entitled to equitable tolling insofar as he was unaware of the illegality of the blood draw
because he was misled by the officers, his claims would nevertheless be time barred
because he moved to suppress the blood draw results no later than October 2017, and was
therefore aware of the potential illegality of the warrantless search over two years before
he filed the instant action. See Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.
2010).
Additionally, we find meritless Gilliam’s contention that, pursuant to Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), his claims did not accrue until his conviction
was vacated. Accrual is deferred under Heck only where “at the time the § 1983 suit
would normally accrue, there is an existing criminal conviction.” Dique, 603 F.3d at 187(discussing Wallace v. Kato, 549 U.S. 384 (2007)). Thus, Heck did not defer accrual of
Gilliam’s claims based on the warrantless blood draw and his arrest because these claims
accrued in 2013 prior to his conviction. See Smith v. Travelpiece, 31 F.4th 878, 888 (4th
Cir. 2022) (rejecting argument that illegal search claims were subject to deferred accrual
under Heck).
Regarding Gilliam’s claims of a civil conspiracy to violate his right to equal
protection, the District Court concluded that Gilliam did not allege facts from which it
could be inferred that defendants were motivated by discriminatory animus against an
identifiable class. On appeal, Gilliam contends that the officers were racially motivated
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because he was a black man who was suspected of killing a white man. Notwithstanding
whether Gilliam sufficiently pleaded his conspiracy claims, we conclude that the District
Court properly dismissed those claims because they were untimely. See Bougher v.
Univ. of Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989) (explaining that causes under §1983
and §1985(3) are subject to the same statute of limitations period). For civil conspiracy
claims, the statute of limitations begins to run on “the date of each overt act causing
damage to plaintiff,” id. at 80, and all of the officers’ acts detailed in the second amended
complaint occurred in 2013 when Gilliam was arrested and his blood was drawn. See
Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam) (explaining that this
Court may affirm a district court’s decision on any basis supported by the record).
We also construe Gilliam’s brief as challenging the District Court’s dismissal of
his malicious prosecution claim. See ECF No. 18 at 3-B, 5. To state a malicious
prosecution claim, Gilliam needed to allege that, inter alia, “the criminal proceeding
ended in [his] favor.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). The
District Court dismissed Gilliam’s malicious prosecution claim against the officers
primarily based on its conclusion that the criminal proceeding did not end in Gilliam’s
favor because the case was not “disposed of in a way that indicates the innocence of the
accused.” ECF No. 14 at 19, citing Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009).
That interpretation of the “favorable termination” requirement, however, has
subsequently been rejected by the Supreme Court, which held in Thompson v. Clark that
favorable termination means only “that the criminal prosecution ended without a
conviction.” See 142 S. Ct. 1332, 1341 (2022). Because Gilliam alleges, and the state
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court decision reflects, that his plea was vacated and his case was remanded for trial in
2021, sua sponte dismissal was not warranted absent a determination as to the status of
the prosecution.
Additionally, the District Court stated that it found “no facts from which [it] could
reasonably infer that Defendants acted maliciously or for a purpose other than bringing
[Gilliam] to justice,” as an alternative basis for dismissing the claim. ECF No. 14 at 20.
It is not clear from that brief explanation, however, that the District Court applied a
proper interpretation of “malice,” which under New Jersey law means “the intentional
doing of a wrongful act without just cause or excuse.” See Brunson v. Affinity Fed.
Credit Union, 972 A.2d 1112, 1120 (N.J. 2009); see also Lippay v. Christos, 996 F.2d
1490, 1503 (3d Cir. 1993) (looking to state law to interpret malice requirement). Proof of
malice does not require proof that defendants acted with spite or ill will toward the
plaintiff. See Epperson v. Wal-Mart Stores, Inc., 862 A.2d 1156, 1162 (N.J. Super. Ct.
App. Div. 2004). In addition, lack of probable cause is relevant to, though not
necessarily determinative of, the malice inquiry. See Lind v. Schmid, 337 A.2d. 365, 368
(N.J. 1975). Gilliam appears to allege that the officers caused his arrest by intentionally
and wrongfully obtaining his blood sample without a warrant. And on appeal he claims
that the officers’ actions were racially motivated and taken in response to his voicing his
belief of discriminatory treatment. Thus, we will also remand for further consideration of
this issue.
Finally, Gilliam contends that the District Court improperly resolved the above
issues during the screening stage, and that the court’s rulings are indicative of its bias
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against him. As noted above, the District Court was entitled to screen the complaint and
determine such issues because Gilliam sought redress from a governmental entity and
officers of a governmental entity. See 28 U.S.C. § 1915A(a); Fogle v. Pierson, 435 F.3d
1252, 1258 (10th Cir. 2006) (explaining that a complaint may be dismissed sua
sponte under § 1915 based on an affirmative defense where the defense is obvious from
the face of the complaint). Additionally, to the extent that Gilliam seeks the District
Judge’s recusal, “a party’s displeasure with legal rulings does not form an adequate basis
for recusal.” Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.
2000). Gilliam’s contention that the District Court’s opinion reflects racial bias is
without merit.
For the foregoing reasons, we will vacate the District Court’s judgment in part,
affirm in part, and remand for further proceedings consistent with this opinion.
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