Ralph Baker v. Michael Wittevrongel

CLD-287 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2174
___________
RALPH BAKER,
Appellant
v.
MICHAEL WITTEVRONGEL; UNION POLICE DEPT.;
DETECTIVE EDWARD CHABEK; EDISON POLICE DEPARTMENT;
SGT. JOSEPH SHANNON; GREENBROOK POLICE DEPARTMENT;
SGT. RANDY STRATTON; JENNIFER F. BANAAG;
WAYNE FORREST, Prosecutor Somerset County;
JAMES LANKFORD, Asst. Prosecutor Somerset County;
THEODORE J. ROMANKOW, Prosecutor Union County;
NATALIE S. CANDELA, Asst. Prosecutor, Union County;
BRUCE KAPLAN, Prosecutor Middlesex County;
MARTHA B. MCKINNEY, Assistant Prosecutor Middlesex County;
YVONNE SMITH SEGARS, Public Defender of New Jersey;
ANNE MILGRAM, Attorney General
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 08-cv-00301)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 13, 2009
Before: RENDELL, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: January 29, 2010)

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Baker was also found guilty and convicted of another weapons offense under a1
separate indictment, for which he received a seventeen year sentence. The Superior Court
reversed and remanded the conviction. It appears that the indictment was dismissed
sometime thereafter.
It appears that Baker has not successfully filed a direct appeal of his conviction2
and life sentence. The last Superior Court order entered with respect to the Middlesex
2
_________
OPINION
_________
PER CURIAM
Ralph Baker, a prisoner, appeals from the order of the United States District Court
for the District of New Jersey dismissing his civil rights complaint.
In July 2002, Baker was arrested and charged with committing four armed
robberies and related offenses in Union, Middlesex, and Somerset Counties. He was
acquitted of armed robbery after a jury trial in Union County in March 2004 and was
found guilty of the lesser included offense of theft and related gun charges; he was
sentenced to seven and one-half years in prison. The New Jersey Superior Court
Appellate Division (“Superior Court”) affirmed the convictions in February 2007.1
In Middlesex County, Baker was tried by a jury and convicted in 2005 of two
counts of armed robbery and related offenses and was sentenced to life imprisonment on
one count of armed robbery and to lesser terms on the remaining charges. In October
2006, the Superior Court denied his appeal without prejudice to his filing a motion for
leave to file an appeal nunc pro tunc.2

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County case is the order entered in March 2008, denying his appeal nunc pro tunc (of his
conviction and of the denial of his new trial motions) without prejudice. The order
advised Baker that he could file an appeal and a motion for leave to file an appeal nunc
pro tunc in which he should explain the causes for the delay in filing a direct appeal.
There appears to be no appeal currently pending in the Superior Court.
Baker attempted to amend his complaint twice. He did not serve the first3
amended complaint on the defendants. Baker requested that the District Court return the
first amended complaint because he filed it by mistake. See D. Ct. Dkt. No. 13. As for
the second amended complaint, which added a claim for damages, the District Court
denied Baker’s request to amend the complaint as futile because the amendment would
not change the result.
In May 2006, Union County voluntarily dismissed an indictment charging Baker4
with a second armed robbery and related offenses because the frail elderly victim could
not travel from his home in Florida. (See brief in support of summary judgment,
“Declaration of D. Schwartz,” Exh. “J”). Baker claims that the Somerset County
indictment, charging Baker with armed robbery and related offenses, was dismissed
voluntarily on April 3, 2008, because of the DNA testing results.
3
In January 2008, Baker filed a civil rights complaint pursuant to 42 U.S.C. §§
1983, 1985, and 1986, against the police officers, police departments, county prosecutors,
the public defender, and the Attorney General of New Jersey for claims arising out of the
indictment in Somerset County and his convictions in Union and Middlesex Counties for
theft and armed robbery. According to Baker, he filed separate motions for new trials in3
Union County and Middlesex County in December 2007, alleging that DNA tests
conducted in 2006 by the New Jersey State Police at the request of Baker’s attorney in the
Somerset County case linked a black ski cap used in the robberies to another suspect,
Malik Johnson. In response, the prosecutor defendants filed allegedly false affidavits4
attesting that, statistically, Baker could not be ruled out as a suspect. In August and

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The District Court did not err in denying Baker’s request for relief as it lacks5
authority to order a such an investigation.
Heck v. Humphrey, 512 U.S. 477 (1994); Rooker v. Fidelity Trust Co., 263 U.S.6
413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Younger v. Harris, 401 U.S. 37 (1971).
4
September 2007, the trial courts in both Middlesex County and Union County denied his
motions for new trials. As we have already noted, Baker’s appeal of the denial of his new
trial motions was denied. The New Jersey Supreme Court denied certification in October
2008.
In his § 1983 complaint, Baker claimed he was subjected to false arrest and false
imprisonment and that the defendants engaged in malicious prosecution and conspiracy to
maliciously prosecute him. He sought an order from the District Court enjoining Union,
Middlesex, and Somerset Counties and the individual defendants from presenting
allegedly false DNA evidence and using constitutionally infirm photographic lineup
identifications in the Superior Court and New Jersey Supreme Court and in the trial court
in Somerset County where the charges were still pending. He demanded that the District
Court order a federal investigation into the matter. He did not request damages.5
Detective Edward Chabek filed a motion for summary judgment, and the
remaining defendants (except Sergeant Joseph Shannon) filed motions to dismiss,
claiming, among other things, that the complaint was barred by Heck v. Humphrey, the
Rooker-Feldman doctrine and the Younger abstention doctrine. The District Court6
denied Baker’s motion to amend his complaint, granted the defendants’ dispositive

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By dismissing the complaint “in its entirety,” the District Court dismissed all7
claims against Middlesex County Defendant Sergeant Joseph Shannon. The parties had
stipulated to the dismissal of all claims against the public defender, Yvonne Smith Segars.
5
motions, and dismissed the complaint in its entirety as to all defendants. Baker filed this7
timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Baker has been granted leave
to proceed in forma pauperis on appeal. Because his appeal lacks arguable merit, we will
dismiss it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000).
The District Court properly dismissed Baker’s claims for injunctive relief. We
agree with the District Court that, because the complaint implies the invalidity of his
convictions in Middlesex and Union Counties, his sole remedy for contesting his
convictions and/or sentences was through a petition for a writ of habeas corpus. See
Nelson v. Campbell, 541 U.S. 637, 643, 646 (2004); see also Heck, 512 U.S. at 485-86.
The Somerset County armed robbery charge was pending trial at the time Baker filed his
complaint. The trial court’s dismissal of the Somerset County indictment in April 2008
renders moot Baker’s request for an injunction barring the Somerset County defendants
from using certain evidence at his criminal trial. To the extent that he also requested a
broad injunction barring the use of the evidence at any future trial, his claim is too
speculative to sustain.

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6
The District Court did not err in dismissing Baker’s motion to amend the
complaint. Amendment might have been required under Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002), absent any equitable considerations or the
futility of the amendment. Here, granting leave to amend would have been futile because
the proposed amended complaint (adding a claims for damages) would fail to state a
claim upon which relief could be granted. With the exception of the Somerset County
defendants, Baker’s damages claims for malicious prosecution and conspiracy against the
defendants are barred by the favorable termination rule announced in Heck because the
unlawfulness of the defendants’ alleged actions imply the invalidity of the Union and
Middlesex County convictions and Baker cannot show that these convictions have been
reversed or otherwise invalidated. Heck v. Humphrey, 512 U.S. at 486-87. Baker’s
acquittal by a jury on the armed robbery charge in Union County did not constitute a
“favorable termination” because he was convicted of the lesser-included offense of theft
in the same criminal proceeding for the same criminal act. See e.g., Kossler v. Crisanti,
564 F.3d 181, 188 (3d Cir. 2009) (concluding that the criminal judgment as a whole must
indicate the plaintiff’s innocence of the alleged misconduct charged).
As for the Somerset County defendants, the trial court’s dismissal of the Somerset
County indictment at the prosecutor’s request satisfies Heck’s favorable termination rule.
See Kossler, 564 F.3d at 187 (listing the ways in which a plaintiff may demonstrate
favorable termination, including “the formal abandonment of the proceedings by the

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7
public prosecutor”). The Somerset County prosecutors, Wayne Forrest and James
Lankford, however, are absolutely immune from suit for their actions in presenting
evidence in response to Baker’s new trial motion. See Imbler v. Pachtman, 424 U.S. 409,
431 (1976) (holding that prosecutor was absolutely immune from a suit for damages
because his alleged actions were within the scope of the function of “initiating a
prosecution and presenting the State’s case”). As for Somerset County defendants
Sergeant Randy Stratton and defense counsel, Jack Venturi, the amended § 1983
malicious prosecution and conspiracy claims require that Baker demonstrate, among other
things, that Somerset County initiated criminal proceedings against him without probable
cause. See Estate of Smith v. Marasco, 318 F.3d 497, 521-22 (3d Cir. 2003). Baker’s
arrest was based in part on the victim’s independent photographic identification of him,
which is sufficient to establish probable cause to initiate criminal proceedings against
him. See Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (“probable cause to arrest
exists when the facts and circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to believe that an offense has been
or is being committed by the person arrested”) (citation omitted). Notably, the DNA
testing results at issue in this case were conducted in 2005 and the results reported in
2006, well after Baker was arrested and indicted. Thus, we conclude that amendment of
Baker’s § 1983 malicious prosecution claims against the Somerset County defendants
would be futile.

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8
Although the rule in Heck does not apply to Baker’s false arrest/imprisonment
claims, see Wallace v. Kato, 549 U.S. 384, 393-394 (2007), his claims are barred by the
applicable statute of limitations. See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d
Cir. 1998). We have held that New Jersey’s two-year limitations period on personal
injury actions, N.J.S.A. 2A:14-2, applies to civil rights claims under § 1983. Cito v.
Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989). Because Heck’s
deferred accrual rule does not apply, Baker’s Fourth Amendment claim accrued when he
appeared before a magistrate and was bound over for trial or arraigned on charges. See
Wallace, 549 U.S. at 389-392. His imprisonment does not toll the running of the statute
of limitations. See Hughes v. Smith, 264 F. Supp. 767, 769 (D.N.J. 1967), aff’d, 389 F.2d
42 (3d Cir. 1968). Baker alleges that he was arrested on July 16, 2002. The date that he
was arraigned or otherwise bound over for trial is not in the record. It is certain, however,
that he was arraigned before his trial in Union County began in March 2004. Assuming
in Baker’s favor that he was arraigned on the first day of trial, under New Jersey’s two
year statute of limitations, he had until March 2006, to file a timely complaint. His
complaint was filed in January 2008, well after the limitations period had expired.
Our independent review reveals that there is no arguable basis to challenge the
District Court’s dismissal order on appeal. Accordingly, Baker’s appeal will be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B). His motion for transcripts is denied.

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