NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-2945
                                     ___________

                                PHILIP WOODYARD,
                                            Appellant

                                           v.

      COUNTY OF ESSEX, Its Directors, Officers, Servants, Agents, Assignees,
Delegates, and/or Employees; ESSEX COUNTY PROSECUTOR‟S OFFICE (ECPO),
  Its Directors, Officers, Servants, Agents, Assignees, Delegates, and/or Employees;
  DETECTIVE DAVID RUBIN (ECPO); DETECTIVE GUY TROGANI (ECPO);
    DETECTIVE RICHARD CUNNIGHAM (ECPO); LIEUTENANT MICHAEL
DEMAIO; COUNTY OF ESSEX ECPO SUPERVISORS/EMPLOYEES; JOHN/JANE
    DOE/S 1-10; CITY OF IRVINGTON, Its Directors, Officers, Servants, Agents,
  Assignees, Delegates and/or Employees; IRVINGTON POLICE DEPARTMENT;
HAROLD WALLACE, Irvington Police Detective; ABC CORPORATION/S AND/OR
  LAW ENFORCEMENT AGENCY/AGENCIES 1-5, (Fictitious name intending to
 designate the Entity or entities responsible for causing Plaintiff‟s cause of action and
    injuries); STATE OF NEW JERSEY, Office of Attorney General (OAG); ABC
 CORPORATION AND/OR LAW ENFORCEMENT AGENCY, Agencies, Directors,
           Officers, Servants, Agents and/or Employees John/Jane Doe/s 1-10
                      ____________________________________

                   On Appeal from the United States District Court
                             for the District of New Jersey
                       (D.C. Civil Action No. 2:10-cv-04506)
                    District Judge: Honorable Stanley R. Chesler
                    ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 March 1, 2013
      Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: March 5, 2013)
                                       ___________

                                        OPINION
                                       ___________

PER CURIAM

       Philip Woodyard, proceeding pro se, appeals from an order of the United States

District Court for the District of New Jersey granting Appellees‟ motions for summary

judgment. For the following reasons, we will affirm.

                                             I.

       On August 14, 2007, Woodyard was arrested by detectives from the Essex County

Prosecutor‟s Office (“ECPO”) for the murder of Regina Grace and related weapons

charges. He was arraigned on August 17, 2007. Approximately six months later, the

State presented its case to a grand jury, and Woodyard was indicted on charges of first

degree murder, fourth degree unlawful possession of a weapon, and third degree

possession of a weapon for an unlawful purpose.

       Woodyard‟s public defender filed pretrial motions challenging the out-of-court

identifications of Woodyard made by Lavina Caldwell, Felisa Hardy, and Anita Mayhew.

After his trial commenced on September 15, 2009, the trial court suppressed Caldwell

and Mayhew‟s pretrial identifications, and the prosecution voluntarily withdrew Hardy‟s

identification. The prosecution then filed a Recommendation of Dismissal, noting that

although there was probable cause for Woodyard‟s arrest and indictment, it would not be

able to meet its standard of proof. The trial court granted this motion for dismissal on

October 1, 2009.


                                             2
       On February 25, 2010, Woodyard filed a complaint pursuant to 42 U.S.C. § 1983

in the New Jersey Superior Court for Essex County, alleging claims of false arrest,

malicious prosecution, and false imprisonment. He did not properly serve Appellees with

the complaint, and Appellees timely removed Woodyard‟s action to the District Court on

September 2, 2010.1 After conducting discovery, Appellees Township of Irvington,

Township of Irvington Police Department, and Harold Wallace (collectively, the

“Municipal Appellees”) filed a motion for summary judgment, and Appellees the ECPO,

David Rubin, Guy Trogani, Richard Cunningham, and Michael DeMaio (collectively, the

“State Appellees”) filed a motion for summary judgment. Woodyard filed a brief

opposing both motions; however, on June 7, 2012, the District Court granted Appellees‟

motions. Woodyard then timely filed this appeal.

                                            II.

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

over the District Court‟s order granting summary judgment. See Giles v. Kearney, 

, 322 (3d Cir. 2009). Summary judgment is appropriate only when the record

“shows that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The moving party has

the burden of demonstrating that there is no genuine issue as to any material fact, and

summary judgment is to be entered if the evidence is such that a reasonable fact finder



1
  An exhibit attached to Appellees‟ notice of removal shows that Woodyard sought leave
to file an Amended Complaint in the Superior Court. However, this Amended Complaint
was apparently never filed or properly served upon Appellees.
                                             3
could find only for the moving party.” Watson v. Eastman Kodak Co., 

, 854

(3d Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 

, 248 (1986)).

                                             III.

       On appeal, Woodyard asserts that the District Court erred by (1) disregarding his

profession of innocence; (2) improperly relying on statements made by allegedly

unreliable witnesses; (3) ignoring that the trial court judge suppressed the testimony of

several state witnesses before trial; (4) failing to consider his allegation that the New

Jersey Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup

Identification Procedures were violated during the investigation; and (5) failing to

consider that he passed polygraph tests, DNA testing, and fingerprinting tests.

                                             IV.

       Section 1983 provides private citizens with a means to redress violations of federal

law committed by state individuals. See 42 U.S.C. § 1983. To establish a claim under §

1983, a plaintiff “must establish that []he was deprived of a federal constitutional or

statutory right by a state actor.” Kach v. Hose, 

, 646 (3d Cir. 2009).

A.     Woodyard’s Claims Against the Municipal Appellees

       As an initial matter, Woodyard named both the Township of Irvington and the

Irvington Police Department as defendants in his § 1983 suit. However, a municipal

police department is not an entity separate from the municipality, see N.J. Stat. Ann. §

40A:14-118, and, therefore, the District Court properly dismissed Woodyard‟s claims as

to the police department. See Bonenberger v. Plymouth Twp., 

, 25 n.4 (3d



                                              4
Cir. 1997) (observing that “we treat the municipality and its police department as a single

entity for purposes of section 1983 liability”).

       In his complaint, Woodyard alleges that Detective Wallace violated his

constitutional rights by failing to follow the guidelines set forth by the Attorney General

with respect to the identification procedure he utilized in his interview of Nina Nunez, by

manipulating and suppressing evidence that Woodyard never knew the victim and was

not a drug addict, and by failing to expose the other defendants‟ alleged unlawful acts by

not exposing the inconsistencies in Nina Nunez‟s testimony. According to Woodyard,

Detective Wallace‟s unconstitutional conduct led to his arrest and the initiation of

criminal proceedings without probable cause.

       “[Section] 1983 liability can extend beyond the arresting officer to other officials

whose intentional actions set the arresting officer in motion.” Berg v. Cnty. of

Allegheny, 

, 271-72 (3d Cir. 2000). Here, the record is clear that Detective

Wallace used a computerized “mugbook” during his interview of Nina Nunez and that

New Jersey‟s guidelines for identification procedures only apply to photographic arrays

or live line-ups. See State v. Jankowski, 

, 232-35 (N.J. Super. Ct. App. Div.

2005) (noting that “mugbooks” are not designed to confirm or eliminate suspects, but to

see if a suspect can be found). Furthermore, nothing suggests that Detective Wallace

coerced Nina Nunez‟s statements or knew that her second statement regarding her

physical proximity to the murder was false in any way. Accordingly, Woodyard has

failed to demonstrate that Detective Wallace made any false statements leading to his

arrest and prosecution. See Reed v. City of Chicago, 

, 1053 (7th Cir. 2000).

                                              5
       Finally, we agree with the District Court that the Township of Irvington cannot be

held liable under § 1983. Municipal liability under § 1983 only arises if the plaintiff

demonstrates that “„execution of a government‟s policy or custom, whether made by its

lawmakers or by those whose edits or acts may fairly be said to represent official policy,

inflicts the injury.‟” Andrews v. City of Phila., 

, 1480 (3d Cir. 1990)

(quoting Monell v. Dep‟t of Soc. Serv., 

, 690-91 (1978)). A municipal

policy encompasses a “statement, ordinance, regulation, or decision officially adopted

and promulgated by that body‟s officers.” Brown v. Muhlenberg Twp., 

,

215 (3d Cir. 2001) (quoting Monell, 436 U.S. at 690). A custom, on the other hand, need

not have received formal approval through official decision-making channels, but it

“must have the force of law by virtue of the persistent practices” of municipal officials.

Id. (quoting Adickes v. S.H. Kress & Co., 

, 167 (1970)). Furthermore, a

municipality cannot be constitutionally liable under the doctrine of respondeat superior.

See City of Canton v. Harris, 

, 385 (1989).

       Woodyard has failed to provide any evidence that the Township of Irvington

engaged in a pattern of behavior, or had in place a policy directing such behavior, that

violated his constitutional rights. Nothing in the record supports Woodyard‟s assertion

that the Township had a policy or custom leading to the suppression and manipulation of

exculpatory evidence related to his case that led to his arrest and prosecution. He bases

his claims against the Township on Detective Wallace‟s behavior; however, as discussed

above, Wallace‟s conduct did not violate Woodyard‟s constitutional rights, and even if he



                                             6
had, the Township cannot be held vicariously liable as his employer. Accordingly, the

District Court properly granted summary judgment to the Municipal Appellees.

B.     Woodyard’s Claims Against the State Appellees

       Woodyard has named the ECPO as a defendant based upon alleged unlawful acts

committed by its higher-level employees. However, we agree with the District Court that

that the ECPO, to the extent that it is a governmental entity which can be sued under §

1983, is entitled to Eleventh Amendment immunity. Under the Eleventh Amendment,

“an unconsenting State is immune from suits brought in federal courts by her own

citizens.” Edelman v. Jordan, 

, 663 (1974). This immunity protects both

states and state agencies “as long as the state is the real party in interest.” Fitchik v. N.J.

Transit Rail Operations, 

, 659 (3d Cir. 1989) (en banc). To determine

whether the immunity applies, a court considers: “(1) the source of the money that would

pay for the judgment; (2) the status of the entity under state law; and (3) the entity‟s

degree of autonomy.” Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 

,

198 (3d Cir. 2008) (citing Fitchik, 873 F.2d at 659). We have previously concluded that

“[w]hen [New Jersey] county prosecutors engage in classic law enforcement and

investigative functions, they act as officers of the State.” Coleman v. Kaye, 

, 1505 (3d Cir. 1996). Eleventh Amendment immunity may not apply when

prosecutorial defendants “perform administrative tasks unrelated to their strictly

prosecutorial functions, such as . . . personnel decisions.” Id.

       Here, Woodyard alleges that the ECPO violated his Fourth Amendment rights by

arresting and detaining him maliciously and without probable cause. He alleges that the

                                               7
ECPO engaged in this conduct after obtaining evidence against him while investigating

Regina Grace‟s murder and presenting that evidence to a grand jury. However, because

these actions are clearly law enforcement functions, the ECPO is entitled to Eleventh

Amendment immunity. Accordingly, the District Court properly granted summary

judgment to the ECPO.

       With regard to the individual State Appellees, Woodyard argues that they violated

his Fourth Amendment rights by initiating criminal proceedings against him without

probable cause. To prevail on a § 1983 malicious prosecution claim, a plaintiff must

demonstrate that:

       (1) the defendants initiated a criminal proceeding; (2) the criminal
       proceeding ended in the plaintiff‟s favor; (3) the proceeding was initiated
       without probable cause; (4) the defendants acted maliciously or for a
       purpose other than bringing the plaintiff to justice; and (5) the plaintiff
       suffered deprivation of liberty consistent with the concept of seizure as a
       consequence of a legal proceeding.

McKenna v. City of Phila., 

, 461 (3d Cir. 2009) (citing Estate of Smith v.

Marasco, 

, 521 (3d Cir. 2003)).

       “[P]robable cause to arrest exists when the facts and circumstances within the

arresting officer‟s knowledge [at the moment the arrest was made] 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, 

, 482

(3d Cir. 1995). When an arrest is made pursuant to a warrant, a plaintiff must establish a

lack of probable cause “by a preponderance of the evidence: (1) that the police officer

knowingly and deliberately, or with a reckless disregard for the truth, made false


                                             8
statements or omissions that create a falsehood in applying for a warrant;” and (2) that

“such statements or omissions are material, or necessary, to the finding of probable

cause.” Wilson v. Russo, 

, 786-87 (3d Cir. 2000). While usually “the

question of probable cause in a section 1983 damage suit is one for the jury,”

Montgomery v. De Simone, 

, 124 (3d Cir. 1998), a district court can

determine that probable cause exists as a matter of law and grant summary judgment

when the evidence cannot reasonably support a contrary finding, see Sherwood v.

Mulvihill, 

, 401 (3d Cir. 1997).

       Here, there is no evidence that officers deliberately withheld exculpatory evidence

from the issuing judge or coerced Nina Nunez to obtain her statements. Instead, the

judge who issued the arrest warrant reviewed the ECPO‟s entire file and found that

Nunez‟s statements supported probable cause for Woodyard‟s arrest. See Merkle v.

Upper Dublin Sch. Dist., 

, 790 (3d Cir. 2000) (noting that the statement of a

single eyewitness may be sufficient to establish probable cause). Specifically, the judge

determined that her statement and identification were sufficiently reliable even after

being presented with her inconsistent statements about her distance from the scene.

       Woodyard‟s argument that probable cause no longer existed by the time his case

was presented to the grand jury is likewise without merit. A “grand jury indictment or

presentment constitutes prima facie evidence of probable cause to prosecute”; this

presumption will only be overcome “by evidence that the presentment was procured by

fraud, perjury or other corrupt means.” Rose v. Bartle, 

, 353 (3d Cir. 1989).

Both Nina Nunez and Lavina Caldwell testified before the grand jury. Woodyard appears

                                             9
to believe that because Caldwell‟s out-of-court identification was ultimately suppressed,

the grand jury lacked probable cause to indict him. However, Nunez‟s statements alone

were sufficient for the grand jury to find probable cause, and Woodyard has not shown

any evidence that the indictment was procured through fraud or perjury. The trial court‟s

later suppression of certain witnesses‟ out-of-court identifications is irrelevant to a

determination of whether probable cause supported the arrest warrant and the indictment.

Accordingly, the District Court properly granted summary judgment to the State

Appellees on Woodyard‟s malicious prosecution claim.2

       Finally, Woodyard asserts that the State Appellees violated his Fourth Amendment

rights by arresting and detaining him without probable cause. A complaint pursuant to §

1983 is “characterized as a personal injury claim and thus is governed by the applicable

state‟s statute of limitations for personal-injury claims.” Dique v. N.J. State Police, 

, 185 (3d Cir. 2010) (citing Cito v. Bridgewater Twp. Police Dep‟t, 

,

25 (3d Cir. 1989)); see also Wilson v. Garcia, 

, 276 (1985). In New Jersey,

§ 1983 claims are subject to New Jersey‟s two-year statute of limitations on personal


2
  We agree with the District Court that the record indicates that Woodyard likely cannot
satisfy the favorable termination element of his malicious prosecution claim. This
element requires the final disposition to indicate a plaintiff‟s innocence. Donahue v.
Gavin, 

, 383 (3d Cir. 2002); see also Hector v. Watt, 

, 156 (3d
Cir. 2000) (“[A] plaintiff claiming malicious prosecution must be innocent of the crime
charged in the underlying prosecution.”). Here, the prosecution sought to dismiss the
charges against Woodyard because it believed it could not meet its burden of proof after
two witness identifications of Woodyard were suppressed by the trial court. Specifically,
the prosecution explained that it did not wish to proceed to trial with just Nina Nunez‟s
testimony because of double jeopardy attaching if Woodyard was acquitted. Therefore, it
appears that the decision to dismiss did not reflect Woodyard‟s innocence, but rather was
a result of the suppression of evidence.
                                              10
injury actions. See Dique, 603 F.3d at 185; see also N.J. Stat. Ann. § 2A:14-2.

Accordingly, Woodyard‟s claims are subject to this two-year period.

       While state law governs the applicable statute of limitations, federal law controls

when a § 1983 claim accrues. Wallace v. Kato, 

, 388 (2007). Accrual

occurs “when the plaintiff has a complete and present cause of action.” Id. (citations

omitted) (internal quotation marks omitted). Here, the limitations period for Woodyard‟s

false arrest and imprisonment claims began when he became “detained pursuant to legal

process.” Id. at 397; see also Dique, 603 F.3d at 185-86 (determining that the cause of

action accrues when the complainant indisputably knows about the faults of the search);

Montgomery v. De Simone, 

, 126 (3d Cir. 1998). Woodyard was arraigned

on August 17, 2007; accordingly, his false arrest and imprisonment claims accrued upon

that date. However, he did not file his complaint in state court until February 2010, well

more than two years after his arraignment. Accordingly, the District Court properly

granted summary judgment to the State Appellees as to these claims.3

                                            V.

       For the foregoing reasons, we will affirm the District Court‟s order granting

Appellees‟ motions for summary judgment.



3
  Nevertheless, we note that Woodyard‟s false arrest and imprisonment claims are
meritless. As with a claim alleging malicious prosecution, a plaintiff asserting a false
arrest claim must demonstrate that probable cause was lacking during the arrest. Wright
v. City of Phila., 

, 604 (3d Cir. 2005). As discussed above, Woodyard‟s
malicious prosecution claim is meritless because probable cause supported both the arrest
warrant and the indictment issued against him. Therefore, Woodyard cannot succeed on
the merits of his false arrest and imprisonment claims.
                                            11