Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-2008

Andros v. Gross
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2259




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                                                      NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 07-2259
                                  ___________

JAMES L. ANDROS, III, individually and as Father and Natural Guardian on behalf of
           Meghan Elizabeth Andros and Elizabeth Andros, minors,

                                                        Appellant

                                         v.

  M.D. ELLIOT M. GROSS; BRUCE K. DESHIELDS, SGT.; ELADIO ORTIZ, LT.;
 JEFFREY S. BLITZ, ESQUIRE; MURRAY TALASNIK, ESQUIRE; M.D. HYDOW
PARK; BARBARA FENTON; COUNTY OF ATLANTIC; STATE OF NEW JERSEY;
    JOHN DOE, INVESTIGATORS 1-50, individually, jointly, severally and in the
                alternative; CHRISTOPHER WELLMAN, CPT.
                                ___________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                           (D.C. Civil No. 03-cv-01775)
                  District Judge: Honorable Jerome B. Simandle
                                   ___________

                   Submitted Under Third Circuit L.A.R. 34.1(a),
                               September 11, 2008

         Before: SLOVITER, FUENTES, and ALDISERT, Circuit Judges.

                       (Opinion Filed: September 22, 2008)


                           OPINION OF THE COURT




                                        -1-
FUENTES, Circuit Judge:

       In April 2001, Appellant James Andros (“Andros”), a former Atlantic County

police officer, was arrested by officers from the Atlantic County Prosecutor’s Office for

murdering his wife, Ellen Andros. He was indicted on that charge by grand jury in June

2001, and lost both his job and custody of his two daughters. In late 2002, a follow-up

medical exam revealed that Ellen Andros had not died from asphyxiation, as the county’s

medical examiner had originally concluded, but rather from a spontaneously dissecting

coronary artery, an extremely rare form of heart attack. The charge against Andros was

immediately dismissed.

       In April 2003, Andros filed suit against employees of the Atlantic County Medical

Examiner’s Office, along with county prosecutors and police officers and the State of

New Jersey, asserting a number of federal and state law claims related to his allegedly

illegitimate arrest. Andros now challenges the District Court’s award of summary

judgment in favor of certain prosecutor and police officer defendants—attorneys Jeffrey

Blitz and Murray Talasnik, Sergeant Bruce DeShields, and Lieutenant Eladio Ortiz—and

the dismissal of his claims for unconstitutional interference with familial relations. For

the reasons that follow, we will affirm the District Court’s rulings.

                                              I.

       The District Court held that the prosecutors, Talasnik and Blitz, were acting in a

prosecutorial role in deciding to charge Andros with murder and thus had absolute


                                             -2-
immunity to any charges related to their conduct at that point. Secondly, the Court found

that the appellees had probable cause to arrest Andros and thus were entitled to qualified

immunity from most of the federal claims. Finally, the Court dismissed without prejudice

the counts relating to alleged unconstitutional interference with family relations for failure

to plead those claims with sufficient specificity. On a motion for partial reconsideration of

the summary judgment order, the District Court extended its qualified immunity ruling to

dismiss a number of the state law claims against appellees.

       We have plenary review over the District Court’s award of summary judgment.

Johnson v. Knorr, 

, 81 (3d Cir. 2007). We construe all disputed facts in favor

of Andros, the non-moving party, and will affirm the district court’s grant of summary

judgment only if there is “‘no genuine issue as to any material fact and . . . the movant is

entitled to judgment as a matter of law.’” Kopec v. Tate, 

, 775 (3d Cir. 2004)

(quoting Fed. R. Civ. P. 56(c)). We also have plenary review of the dismissal of the

familial interference claims. Wilkerson v. New Media Tech. Charter Sch. Inc., 

, 318 (3d Cir. 2008).

                                             II.

       Because we write exclusively for the parties, we discuss only the facts necessary for

our analysis below. The primary basis for Andros’s claims was his charge that the

defendants investigated and indicted him for his wife’s murder despite their knowledge

that he was at a local bar, the Beach Bar and Grill (“the Beach Bar”), twenty minutes from


                                             -3-
his home, at the time of Ellen’s death.

                                              A.

       Prosecutors Talasnik and Blitz are entitled to absolute immunity from Andros’s

claims to the extent they rest on the prosecutors’ decision to charge Andros with murder.

A prosecutor has absolute immunity for conduct “‘intimately associated with the judicial

phase of the criminal process,’” as part of his or her role as an advocate, but not for

investigative acts. Buckley v. Fitzsimmons, 

, 270 (1993) (quoting Imbler v.

Pachtman, 

, 430 (1976)). The Supreme Court has expressly held that a

prosecutor’s decision to initiate a prosecution is the action of an advocate participating in

the judicial process. 

. Therefore, in that role a prosecutor has

absolute immunity from suit under § 1983. 

immunity to prosecutor

who prosecuted individual despite presence of allegedly exonerating evidence); see also

Kulwicki v. Dawson, 

, 1464 (3d Cir. 1992) (citing Imbler). Although the

Supreme Court has stated that “[a] prosecutor neither is, nor should consider himself to

be, an advocate before he has probable cause to have anyone arrested,” we hold below

that probable cause existed to arrest Andros, making that consideration irrelevant to our

analysis. 

.

       Similarly, any misconduct by Talasnik or DeShields in their presentation to the

grand jury falls within the protection of absolute immunity. As to Talasnik, the Third

Circuit has stated that “soliciting false testimony from witnesses in grand jury proceedings


                                             -4-
and probable cause hearings is absolutely protected.” Kulwicki v. Dawson, 

, 1465 (3d Cir. 1992). With respect to DeShields, he is subject to absolute immunity

from civil suit as a witness. See 

n.16 (clarifying that witness immunity extends

to investigators testifying in a grand jury proceeding); see also Williams v. Hepting, 

, 141 (3d Cir. 1988).

                                             B.

       We will also affirm the District Court’s ruling that the defendants had probable

cause to arrest Andros. Probable cause 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 to be

arrested.” Orsatti v. N.J. State Police, 

, 483 (3d Cir. 1995) (citations omitted).

This standard requires “more than mere suspicion,” but not “evidence sufficient to prove

guilt beyond a reasonable doubt.” 

In gauging probable cause, “‘[a]n officer

contemplating an arrest is not free to disregard plainly exculpatory evidence, even if

substantial inculpatory evidence (standing by itself) suggests that probable cause exists.’”

Wilson v. Russo, 

, 790 (3d Cir. 2000) (quoting Kuehl v. Burtis, 

, 650 (8th Cir. 1999)).

       In this case, the defendants reasonably thought Andros had murdered his wife.

Contrary to Andros’s allegations, they need not have ignored the available alibi and time

of death evidence in order to believe him guilty. Rather, they simply gave that evidence a


                                             -5-
different construction, one that was reasonable at the time. Compare Kuehl v. Burtis, 

, 651 (8th Cir. 1999) (concluding no probable cause existed where police officer

refused to even listen to witness’s and suspect’s alternative account of events); Baptiste v.

J. C. Penney Co., 

, 1256 (10th Cir. 1998) (finding no probable cause where

officer ignored videotape clearly depicting conduct in question in favor of second-hand

account of security guards as to their observations of alleged shoplifter). Nor is this a case

where further reasonable investigation would have revealed Andros’s innocence; the

defendants fully explored Andros’s potential alibi and available information regarding

Ellen’s time of death. Compare Bevier v. Hucal, 

, 128 (7th Cir. 1986)

(holding that police had unreasonably disregarded possible clarifying evidence by

refusing to question easily available witnesses to suspected child neglect); Bigford v.

Taylor, 

, 1219 (5th Cir. 1988) (reversing district court’s ruling that seizure

of truck was reasonable where “minimal further investigation” would have shown it was

not stolen).

       Andros’s alibi was not flawless. Witness accounts as to when he left the Beach Bar

varied widely enough that the arresting officers might reasonably have thought Andros

arrived home as early as 3:45 or 4 a.m.1 Meanwhile, the time of death evidence available


       1
         The District Court rested its ruling on the lack of definitive evidence confirming
that Andros had not left the Beach Bar for the forty-five minutes it would have taken him
to get home before 4 a.m., murder his wife, and return. Although the defendants did not
proffer the theory that Andros left and returned to the bar, our inquiry into probable
cause is an objective one, independent of what the investigators subjectively believed.

                                             -6-
at the time also was not as conclusive as Andros would have us believe. The medical

examiner’s statement to investigators that Ellen Andros must have died between 1:45 and

2:15 a.m. was in part predicated on their report that she was automatically signed off her

internet account around 2:20 a.m., information that was thrown into serious doubt by

America Online’s later verification that Ellen had actively logged off. Even the medical

examiner’s less specific estimate that Ellen Andros died between two and five hours after

her last meal at 10 p.m., and thus was “highly unlikely” to have died at 4 a.m., did not

render it logically impossible that she was killed by Andros when he arrived home around

that time. Moreover, personnel from the county medical examiner’s office had made

conflicting observations as to some of the other physical evidence, such as the body’s

level of rigor.

       Given the defendants’ foundational beliefs—that Ellen Andros was the victim of a

homicide, that the murderer was able to enter the house without breaking in, that Ellen did

not struggle even enough to wake up her daughters in the same room, and that Andros had

in the past treated Ellen abusively and even threatened her life—it was reasonable for

them to rely on the possibility that the medical examiner’s time of death estimate was not

perfect and conclude that Andros murdered Ellen when he returned home around 4 a.m.



See Blaylock v. City of Philadelphia, 

, 411 (3d Cir. 2007). Still, since we
find the defendants’ own theory that Andros murdered Ellen upon returning home from
the bar at 4 a.m. to be reasonable in light of the evidence available at the time, we need
not address this alternative scenario.


                                            -7-
Though witness accounts and medical evidence made this scenario unlikely, it was not

impossible. In hindsight, with the knowledge that Ellen’s death was accidental, the

defendants’ theory may seem unconvincing, but at the time it provided the only

reasonable explanation of Ellen Andros’s death. See Graham v. Connor, 

,

396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.”); Gilles v. Davis, 

, 207 (3d Cir. 2005) (“The reasonableness of

the officer's belief should be judged from that on-scene perspective, not with the perfect

vision of hindsight.”).

       Finally, Andros contends that the police unreasonably failed to pursue the

possibility that Calvin Gadd, Ellen’s “secret boyfriend,” (Appellees’ Br. at 12) might have

committed the murder. Gadd told the police that he had been home with his son that night

and that no one could verify his whereabouts, a statement that was accepted without

further investigation. However, “the law does not require that a prosecutor explore every

potentially exculpatory lead before filing a criminal complaint or initiating a prosecution.”

Trabal v. Wells Fargo Armored Serv. Corp., 

, 251 (3d Cir. 2001).

Additionally, in light of our knowledge that Ellen died of natural causes, it is clear that

even the most thorough follow-up on Gadd’s story would not have revealed that he

committed the murder instead of Andros.

       Overall, we are satisfied with the District Court’s conclusion that a reasonable jury


                                             -8-
could not find that the above circumstances were insufficient to support a reasonable

belief that Andros had murdered his wife. See Sherwood v. Mulvihill, 

, 401

(3d Cir. 1997) (“The district court may conclude in the appropriate case . . . that probable

cause did exist as a matter of law if the evidence, viewed most favorably to Plaintiff,

reasonably would not support a contrary factual finding.”). The defendants’ conclusion

was a reasonable one based on the facts available at the time, even if it would later prove

incorrect.

                                             C.

       The District Court ruled that Andros’s complaint failed Rule 8(a)(2)’s notice

pleading standard with respect to his federal and state claims of deprivation of due

process through interference with the family relationship. In so doing, the District Court

did not impose a heightened pleading standard on the plaintiff. Andros’s allegations

regarding the roles of Blitz, Talasnik, and DeShields in his child custody proceedings,

themselves relatively vague, fail to take the necessary step of pleading a core element of

his claims: how the defendants’ actions, right or wrong, subverted the due process

afforded to Andros in the form of a procedurally proper custody hearing. Without

information on that key aspect of the familial interference claims, the defendants’ ability

to assert any relevant defenses, such as qualified immunity or failure to state a claim, was




                                             -9-
compromised.2 In re Tower Air, Inc., 

, 237 (3d Cir. 2005) (“A plaintiff

should plead basic facts, such as they are, for those are ‘the grounds’ upon which the

plaintiff's claim rests. Even at the pleading stage, a defendant deserves fair notice of the

general factual background for the plaintiff's claims.”).

                                             III.

       For the foregoing reasons, we affirm the judgment of the District Court




       2
         Notably, Andros did not take advantage of his opportunity to amend these claims
to include more specific factual allegations as to this issue.

                                             -10-