Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2007

Cundiff v. Berreman
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3504




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Recommended Citation
"Cundiff v. Berreman" (2007). 2007 Decisions. Paper 615.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/615


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-3504




                                WARREN CUNDIFF,

                                                   Appellant

                                          v.

                 RONALD BERREMAN; ANTHONY GOYDEN;
                MR. GONZALEZ, #18; LEONARD DOMANSKI;
             STEVEN TALLARD; DEPARTMENT OF CORRECTIONS,




                    On Appeal from the United States District Court
                             for the District of New Jersey
                                (D.C. No. 04-cv-02996)
                      District Judge: Honorable Jose L. Linares


                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                   April 24, 2007

      Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN,* Circuit Judges.

                                (Filed: August 6, 2007)




      *
         The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                               OPINION OF THE COURT


FUENTES, Circuit Judge.

       In September 2001, Warren Cundiff, a convicted sex offender, agreed to undergo

random drug and alcohol testing as a condition of his release from prison.1 In June 2002,

Cundiff tested positive for drug use in preliminary testing at his parole office,2 and was

consequently arrested and imprisoned for violating N.J. Stat. § 2C:43-6.4(d).3 Cundiff

remained in prison pending confirmation of the positive results by an independent

laboratory. Two weeks after the preliminary positives, the parole office received negative

results from the laboratory, and Cundiff was released.

       In October 2004, Cundiff filed a complaint in federal court against various state

defendants, alleging, inter alia, false arrest, false imprisonment, malicious prosecution,



       1
         Under N.J. Stat. § 2C:43-6.4(a), a person convicted of certain sexual offenses
must be sentenced to “parole supervision for life,” and is thereby subject to various
conditions of release, supervised by the Division of Parole of the State Parole Board.
Pursuant to this provision, Cundiff agreed “to submit to drug or alcohol testing at any
time as directed by the assigned parole officer.” (App. 42a.) He also agreed “to refrain
from the purchase, use, possession, distribution, or administration of any narcotic or
controlled dangerous substance . . . except as prescribed by a physician.” (Id.)
       2
         The urine sample provided by Cundiff was tested twice—each test returned a
positive result.
       3
         Under that provision, “[a] person who violates a condition of a special sentence
imposed pursuant to this section without good cause is guilty of a crime of the fourth
degree.”

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and abuse of process. In a thorough and well-reasoned opinion, the District Court granted

the defendants’ motion for summary judgment on all of Cundiff’s claims.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court’s grant of summary judgment. Mortellite v. Novartis Crop

Protection, Inc., 

, 488 n.3 (3d Cir. 2006). Having carefully reviewed

Cundiff’s arguments on appeal, we will affirm for substantially the reasons set forth in the

District Court’s opinion. In doing so, we note that Cundiff challenges the parole office’s

use of a “preliminary” drug test in deciding to arrest him for violating the conditions of

his release. Cundiff does not, however, take issue with the test’s reliability, and instead

asserts that a variety of additional factors should have alerted the parole office that he was

not using drugs. For example, Cundiff claims that he had no history of illegal drug use,

that he adamantly denied using drugs, and that he did not appear to be on drugs when he

tested positive. In spite of these considerations, we agree with the District Court that the

two reliable, objective tests for drug use gave the parole office probable cause to arrest

Cundiff.




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