Odise Carr v. City of Camden ( 2013 )

NOT PRECDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-3960
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ODISE CARR,
Appellant
v.
CITY OF CAMDEN;
CITY OF CAMDEN POLICE DEPARTMENT;
JOHN SOSINAVAGE; SCOTT THOMSON;
MARIO ORTIZ; JOHN DOES 1-10
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 1-09-cv-04717)
District Judge: Honorable Noel L. Hillman
Submitted under Third Circuit LAR 34.1(a)
on November 7, 2013
Before: GREENAWAY, Jr., VANASKIE and ROTH, Circuit Judges
(Opinion filed: December 13, 2013)
OPINION
ROTH, Circuit Judge:
1
Odise Carr appeals the District Court‟s order granting summary judgment to the
defendants, the City of Camden, the City of Camden Police Department, John
Sosinavage, Scott Thomson, and Mario Ortiz, on Carr‟s claim of First Amendment
retaliation pursuant to 42 U.S.C. § 1983. For the reasons set forth below, we will affirm.1
On July 29, 2008, Carr testified under oath at a disciplinary proceeding in support
of two other officers. In his complaint, Carr alleges that the defendants retaliated against
him, in violation of the First Amendment, for the content of this testimony by launching
an investigation into his role in a 2005 arrest of a minor. At the conclusion of this
investigation, Carr was administratively charged with “conduct unbecoming an employee
in the public service” for his role in the 2005 arrest and was eventually terminated from
his position with the police department. Approximately one year after his dismissal, a
New Jersey administrative law judge ordered that Carr be reinstated with full back pay
and seniority because the police department had not met its burden of proving that Carr
had engaged in unbecoming conduct.
The District Court had subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1367, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The sole
issue on appeal is whether Carr submitted sufficient evidence of causation to preclude
summary judgment on his retaliation claims. We hold that he did not.
1
The parties stipulated to the dismissal of Carr‟s appeal with respect to the municipal
entities, which we granted. As a result, we review the District Court‟s decision only
insofar as it relates to claims against the individual defendants: Sosinavage, Thomson,
and Ortiz.
2
We employ “a de novo standard of review to grants of summary judgment,
„applying the same standard as the District Court.‟” Montone v. City of Jersey City, 709
F.3d 181, 189 (3d Cir. 2013) (quoting Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d
Cir. 1995)). Under this standard, a court must “view the underlying facts and all
reasonable inferences there from in the light most favorable to the party opposing the
motion.” Id. (internal quotation marks omitted). A court “shall grant summary judgment
if 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).
Carr submitted no evidence in response to defendants‟ motion for summary
judgment that would even arguably link the decision to investigate the 2005 arrest with
his 2008 testimony. With respect to Thomson and Ortiz, Carr failed to submit any non-
speculative evidence that either defendant was personally involved in the alleged
retaliatory conduct. See Argueta v. U.S. Immigration and Customs Enforcement, 643
F.3d 60, 72 (3d Cir. 2011). Although Carr argues that Thomson was the chief of the
Camden Police Department at the time of the investigation, § 1983 “liability cannot be
predicated solely on the operation of respondent superior.” Evancho v. Fisher, 423 F.3d
347, 353 (3d Cir. 2005). Similarly, Carr‟s argument that certain statements made by
Ortiz are evidence of an intent to retaliate does not raise a genuine issue of material fact
because there is no evidence in the record to suggest that Ortiz played any role in the
decision to investigate the 2005 arrest.
Although it is undisputed that Sosinavage made the decision to investigate Carr‟s
role in the 2005 arrest—which ultimately resulted in his termination—Carr again fails to
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point to any evidence that would causally link this decision to his 2008 testimony.
Instead, Carr argues that the mere temporal proximity of the investigation to his
testimony raises an inference of retaliation that is sufficient to defeat summary judgment.
See LeBoon v. Lancaster Jewish Cmty. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). We
disagree.
As the District Court noted, the only evidence in the record indicates that
Sosinavage made the decision to conduct a further investigation into the 2005 arrest
weeks before Carr‟s testimony. The Camden Police Department was prohibited from
administratively investigating the 2005 arrest prior to this time because it was operating
under a stay requested by the Camden prosecutors‟ office while it pursued a criminal case
against certain of the officers involved in the incident. Based on this timeline, there is
nothing “unusually suggestive” about the timing of the Internal Affairs‟ investigation into
Carr‟s role in the 2005 arrest. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d
Cir. 2000). In addition, the nearly three month gap between Carr‟s testimony and his
termination is not itself unusually suggestive. LeBoon, 503 F.3d at 233.
As a plaintiff opposing summary judgment, Carr had the burden to “produce
evidence that, when considered in light of [his] burden of proof at trial, could be the basis
for a jury finding in” his favor. SEC v. Hughes Capital Corp., 124 F.3d 449, 452 (3d Cir.
1997) (citing Kline v. First Western Gov’t Sec., 24 F.3d 480, 485 (3d Cir. 1994)) (internal
quotation marks omitted). Because he failed to produce any evidence of causation, Carr
has failed to meet his burden. For this reason, we will affirm the District Court‟s order
granting summary judgment to the defendants.
4