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Brown v. Grabowski

filed: December 31, 1990; As Corrected January 24, 1991.


On Appeal From the United States District Court for the District of New Jersey; D.C. Civil No. 86-4895.

Becker, Greenberg and Nygaard, Circuit Judges.

Author: Becker


BECKER, Circuit Judge

Deborah Evans was found frozen to death in the trunk of her car in February of 1985 in a motel parking lot in Iselin, New Jersey. Clifton McKenzie, Evans' former live-in boyfriend, had abducted her and imprisoned her there. In a separate episode, which occurred shortly before this fatal abduction, McKenzie had held Evans hostage for a period of three days, during which he repeatedly threatened and sexually assaulted her. During the weekend following this preliminary reign of terror, members of Evans' family and Evans herself related these events to Patrolman William Schwartz and Detective Felix Grabowski of the Police Department of Roselle Borough, where Evans lived and where most of the events took place. Despite the entreaties of Evans and her family, however, no criminal charges against McKenzie were filed.

These cross-appeals are from the district court's summary judgment rulings in a civil rights case that Evans' personal representative brought against the Borough and employees of its police department. This action is based upon allegations that, but for the sloth and callousness of the department in general and of Detective Grabowski in particular, Evans' death would not have occurred. Plaintiff asserts that the defendants, discriminatorily and through willful neglect, denied Evans her constitutional rights to due process and of access to the civil and criminal courts. Plaintiff further alleges that the Roselle Police Department had a long-standing policy of inaction in domestic violence cases, motivated by discrimination against women, leading to a violation of Evans' equal protection rights.

Because of the absence of finality, we lack appellate jurisdiction over several of the district court's orders granting or denying summary judgment with respect to plaintiff's federal claims. Deciding a question of first impression in this circuit, and influenced by New Jersey's inhospitability to interlocutory appeals, we conclude that the doctrine of Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), does not provide us with jurisdiction to entertain the appeals by the defendant police officers from the denial of their motions for summary judgment, on grounds of qualified immunity, with respect to plaintiff's state law claims. Under Mitchell, however, we plainly have appellate jurisdiction over the appeals of Detective Grabowski, Officer Schwartz, and Roselle Police Chief Vincent Trolan (in his individual capacity) from the district court's denials of their motions for summary judgment invoking qualified immunity as a defense to several of plaintiff's federal claims.

Our qualified immunity inquiry presents a novel question concerning the scope of review of the district court's decisions denying defendants' claims of qualified immunity. We conclude that, in determining whether the district court properly denied defendants' claims of immunity, we may consider not only whether the rights that defendants are claimed to have violated were clearly established at the time of their contact with Evans, but also whether they were established at all. In addition, we construe Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), and our own precedents to require that we engage in an analysis of the facts adduced concerning defendants' conduct -- and not only the pleadings -- in determining whether they are entitled to qualified official immunity.

On the merits, plaintiff's claim of denial of access to the civil courts presents us with some difficulty. In framing this cause of action, plaintiff relies on a New Jersey statute that expands avenues of recourse for victims of domestic violence, requiring that police inform these victims of their right to obtain a restraining order against an attacker in the civil courts. In light of this statute and the egregious inaction of Detective Grabowski, plaintiff presents an appealing case for relief. Ultimately, however, plaintiff's theory that defendants violated Evans' right of access to the civil courts by failing to provide her with the assistance required by New Jersey law is not constitutionally cognizable. The constitutional right of access to the civil courts simply is not expansive enough to encompass the state statutory rights that defendants are claimed to have violated. Plaintiff's theory also runs afoul of the Supreme Court's holding in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), that a state's failure to take affirmative action to protect a victim from the actions of a third person will not, in the absence of a custodial relationship between the state and the victim, support a civil rights claim. DeShaney compels the additional conclusion that plaintiff's civil court access claim does not present a genuine issue of material fact. Consequently, from both a legal and a factual perspective, a reasonable police officer could not have known that by failing to facilitate Evans' access to the civil courts, he was in any way violating her constitutional rights. Accordingly, we must reverse the district court's denial of defendants' motion for summary judgment on plaintiff's civil court access claim.

The propriety of the district court's refusal to grant summary judgment for defendants on plaintiff's equal protection claim turns on the degree to which the principles set forth in Hynson v. City of Chester, 864 F.2d 1026 (3d Cir. 1988), were clearly established at the time of the events in question. Hynson holds that the equal protection clause is implicated when (1) the policy or custom of the police is to provide less protection to victims of domestic violence than to other victims of violence; (2) discrimination against women is a motivating factor; and (3) the plaintiff has been injured by this custom. Although plaintiff might survive defendants' motion for summary judgment had the events in question occurred after Hynson, we read that case as announcing a new principle of law in this circuit. We conclude that the right to equal protection that plaintiff asserts was not clearly established in 1985. Because a reasonable police officer would not have known that he was violating Evans' right to equal protection, Grabowski's and Schwartz's motions for summary judgment based on qualified immunity should have been granted. Further, because there is no evidence of his personal involvement in the actions or matters in question, we must also reverse the district court's denial of summary judgment for Chief Trolan, sued in his individual capacity.


The facts of this case, which are essentially uncontested, chronicle with numbing detail the disturbing inaction on the part of Roselle's Police Department that led to this tragedy.

Deborah Evans' ordeal began early in January of 1985, when Clifton McKenzie, without permission, left the drug rehabilitation center into which he had been paroled following a conviction on forgery and drug charges. According to McKenzie, he began using heroin and related drugs within four days of leaving his treatment program. Immediately after leaving the center, McKenzie, who previously had lived with Evans, took up residence in her apartment. Evans objected to McKenzie's presence there and told him that she wanted nothing else to do with him, unless he returned to his rehabilitation program.

Several days after McKenzie took up residence with her, Evans left her apartment and asked a friend, Jan Parker, to retrieve her apartment keys from McKenzie. When Parker arrived at Evans' apartment, McKenzie beat her until she lost consciousness. McKenzie then abducted Parker and drove her to New York City in her car. Once in New York, Parker managed to escape, contacted the New York City Housing Authority Police, and was taken to a hospital.

The Housing Authority Police immediately reported the incident to the Roselle Police Department, where the investigation of the assault and kidnapping of Jan Parker fell to Detective Felix Grabowski, now a defendant in this case. Based on his conversations with a Housing Authority patrolman, the doctor who treated Parker, and Parker herself, Grabowski determined that there was probable cause to believe that McKenzie had committed aggravated assault, kidnapping, and car theft. Grabowski did not seek to obtain a warrant for McKenzie's arrest, however, and merely advised Parker to come to Roselle Police Headquarters upon her release from the hospital to give a formal statement that would support the issuance of a criminal complaint.

On the same day that he assaulted and abducted Jan Parker, McKenzie returned to Roselle for Deborah Evans, who would receive even less help than did Parker from the local police. McKenzie asked Evans to drive him back to the drug rehabilitation center, but instead abducted her. After forcing Evans to let him drive, McKenzie made her get out of the vehicle in the middle of the Pulaski Skyway, assaulted her, and then threatened to throw her from the top of the Skyway bridge. That night, McKenzie drove Evans back to her apartment. Except for taking Evans on an excursion to withdraw money from her bank account for a drug purchase, McKenzie held her there against her will for the next three days, constantly monitoring her actions and refusing even to permit her to answer her telephone. During this time, McKenzie sexually assaulted Evans twice. In addition to slapping Evans a number of times, McKenzie also threatened her with a butcher knife, indicated that he soon would kill her, forced his fingers into her mouth, and, placing his hands over her mouth, pinned her to her couch. Evans' three-day ordeal came to an end only when, against McKenzie's instructions, she opened her apartment door to her brother and sister and McKenzie fled through the bathroom window of her apartment, taking her purse with him.

Evans' brother and sister, who had contacted the Roselle Police Department a total of five times during the three days of Evans' disappearance, accompanied her to the Roselle Police Station. There, Evans briefly recounted her story to defendant Patrolman William Schwartz. Schwartz made a preliminary report and referred the matter to Grabowski, who, with a second detective, interviewed Evans. The two detectives then met with the Borough's assistant prosecutor, William Daniel, who instructed Grabowski to elicit a formal statement from Evans to support the filing of a criminal complaint against McKenzie.*fn1

In the course of providing her formal statement, Evans, in addition to relating what had befallen her during the previous three days, informed Grabowski that she had, in the past, lived intimately with McKenzie. Grabowski concluded that this prior relationship between the two undermined Evans' assertion that McKenzie had kidnapped and sexually assaulted her. In response to questioning from the detectives in the immediate aftermath of her trauma, Evans also stated that she believed she could have escaped from McKenzie on several occasions, but that she had remained with him because she wanted her keys back. Although he believed that McKenzie had held Evans for three days, often at knife point, Grabowski evidently concluded that Evans' responses further undermined possible kidnapping and sexual assault charges against McKenzie. Because Evans reported that she had showered before arriving at the police station, Grabowski also concluded that it would be difficult to establish sexual assault charges.

Unable to reach Assistant Prosecutor Daniel for advice on whether to lodge kidnapping and sexual assault charges against McKenzie, Grabowski told Evans to return to the police station on the Monday two days hence to file charges, the nature of which he did not specify. There is conflicting testimony as to whether Grabowski ever intended to lodge these charges. It is clear, however, that he did not inform Evans of her rights under New Jersey's Prevention of Domestic Violence Act, in particular, her right, as a victim of domestic violence, to obtain a restraining order against McKenzie from the Juvenile and Domestic Relations court, even on a weekend.*fn2

After Evans had left the police station, Grabowski succeeded in reaching Assistant Prosecutor Daniel. Grabowski told Daniel that kidnapping and sexual assault charges against McKenzie would be difficult to prove. Grabowski did not, however, actually read Evans' statement to Daniel. Based upon Grabowski's characterization of the case, Daniel agreed that there was no probable cause to charge McKenzie. Daniel later concluded that, had Grabowski read Evans' entire statement to him, he would have authorized the filing of the kidnapping and sexual assault charges.

Grabowski testified that the Roselle police made an effort to find McKenzie during the weekend, but conceded that they made no attempts to arrest him. Although Grabowski further testified that protection would have been forthcoming had Evans requested it, he also testified that no patrol units were assigned to protect her.

On the Monday following the weekend, Evans left her mother's house, where she had stayed for the weekend, to renew her efforts to file a complaint against McKenzie. She did not reach the police station, however, and was never again seen alive. McKenzie once more abducted Evans and ultimately placed her, unconscious, in the trunk of her car, where she froze to death. Evans' body was discovered nearly a month later, still in the trunk of her car, which was parked outside of a motel where McKenzie had overdosed on drugs. McKenzie, whose testimony revealed remorse and suggested that he may have experienced drug-induced rages and "black-out" periods during the time he terrorized Evans and Parker, subsequently was convicted of kidnapping and first degree murder.

This incident constituted one of the factors that prompted an investigation of the Roselle Police Department's Detective Bureau by the Union County Prosecutor's Office. Vincent Trolan, the Roselle Police Chief, resigned within a year of the mishandling of Evans' case. The prosecutor's investigation report stated that the Roselle Police Department's Detective Bureau was "completely unsupervised." In response to this investigation, Chief Trolan had prepared reports detailing the activities of the Department's detective division. The Prosecutor's Office concluded that it was "obvious that the accomplishments cited . . . for each month varied greatly from the amount of work actually performed by the bureau." Filed reports, moreover, were available for only 31 of the 747 cases assigned to the Roselle Detective Bureau as a whole. The Prosecutor's investigation also produced evidence of a long-standing failure to follow up on reports of domestic violence. Indeed, the Department had no records whatsoever of crimes involving domestic violence. Grabowski later stated that he never had filed a domestic violence report and could not recall informing specific victims of domestic violence of their rights under the Domestic Violence Act.

Following Evans' death, her sister and personal representative, Regina Brown, brought this five-count civil rights action. The first four counts, bottomed on 42 U.S.C. ยง 1983, allege that defendants, including Detective Grabowski, Patrolman Schwartz, Chief Trolan (in both individual and official capacities), the Roselle Police Department, and the Borough of Roselle, violated Evans' constitutional rights. The first count alleges that Grabowski and Schwartz, through failing either to file criminal charges against McKenzie or to assist Evans in obtaining the restraining order available to her under the New Jersey Domestic Violence Act, unlawfully interfered with and denied Evans her constitutional right of access to the judicial system. The second count alleges that Grabowski and Schwartz, by breaching an affirmative duty of protection that arose from a special relationship with Evans, violated her constitutional right to due process. The third count alleges that Grabowski and Schwartz afforded Evans inadequate protection because she was a victim of domestic violence and thereby violated her constitutional right to equal protection. The fourth count, which names as defendants Chief Trolan, in both his individual and official capacities, the Roselle Police Department, and the Borough of Roselle, alleges that these defendants, through deliberate indifference to the consequences of failing to train and supervise their officers adequately, violated Evans' right of access to the judicial system, as well as her other due process and equal protection rights. The fifth count asserts pendent tort claims under New Jersey common law.

After a period of discovery, Grabowski and Schwartz moved for summary judgment on all five counts of plaintiff's complaint. The district court held that these defendants were entitled to summary judgment on count two of the complaint based upon DeShaney, 109 S. Ct. at 998. Under DeShaney, the state has a "special relationship" with an individual, creating a constitutionally enforceable duty of protection, only when it has deprived that individual of liberty and, thus, the freedom to act on his or her own behalf. The court concluded that no such special relationship existed with respect to Evans. Plaintiff appeals the grant of summary judgment for defendants on this claim.

The district court dealt with the court access claim in count one of the complaint in two separate proceedings. In an early proceeding on defendants' motions to dismiss various claims, the district court drew a distinction between Evans' alleged constitutional right to bring criminal charges and her asserted constitutional right, arising from state legislation coupled with the right to due process, to receive assistance in bringing a civil action. The district court dismissed the component of count one alleging that Grabowski and Schwartz denied Evans' right of access to the criminal courts, emphasizing that, under Linda R.S. v. Richard D., 410 U.S. 614, 619, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973), a private citizen clearly lacks a judicially cognizable interest in the criminal prosecution of another. The court held, however, that plaintiff stated a cognizable claim that Evans was denied her constitutional right of access to the civil courts and therefore did not dismiss count one in its entirety.

In the proceeding on the motions for summary judgment, the district court denied defendants' claim of qualified immunity with respect to the civil court access claim. The district court held that New Jersey's Prevention of Domestic Violence Act, in tandem with the due process clause of the fourteenth amendment, creates a constitutional right on the part of victims of domestic violence to receive police assistance in gaining civil court access and that Evans' situation clearly fell within the ambit of the Domestic Violence Act. The court further held that Grabowski's and Schwartz's knowledge of Evans' danger, in conjunction with general publicity about the plight of victims of domestic violence, was sufficient to put these defendants on notice that they had a constitutional duty to assist Evans in gaining access to the civil courts. The court concluded that this notice barred them from obtaining summary judgment on qualified immunity grounds.

The district court also held that plaintiff had adduced sufficient evidence of a pattern of deliberate indifference or a discriminatory policy or custom directed toward victims of domestic violence to survive defendants' motion for summary judgment on her equal protection claim. Additionally, the district court ruled against defendants on their motion for summary judgment raising the defense of qualified immunity to this claim, concluding that plaintiff's allegations of a pattern of discrimination on the part of Grabowski and Schwartz against victims of domestic violence could permit an inference of their intent to discriminate.

The court next considered whether summary judgment should be granted on plaintiff's claim that the Roselle Police Department, the Borough of Roselle, and Chief Trolan, in both his individual and official capacities, ultimately are liable for the deprivation of Evans' constitutional rights. The court concluded that because plaintiff had sufficiently substantiated her allegation that the misconduct of Schwartz and Grabowski was both causally connected to Evans' death and attributable to a municipal plan or policy evincing deliberate indifference to the constitutional rights of domestic violence victims, defendants were not entitled to summary judgment on this claim.

Finally, the district court held that summary judgment should not be granted for defendants on plaintiff's pendent state claim that Chief Trolan, the Roselle Police Department, and the Borough of Roselle caused Evans' death through a negligent and wanton disregard for her safety that amounted to a breach of their duty to protect her. The court concluded that defendants' investigative and protective duties to Evans were of a ministerial type not shielded by New Jersey's Tort Claims Act. The court further concluded that, notwithstanding sections of the Tort Claims Act shielding discretionary decisions concerning arrests and the provision of police protection, the Domestic Violence Act subjected defendants to potential liability for failure to ...

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