2007 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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.

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 The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals *

for the Ninth Circuit, sitting by designation.

NOT PRECEDENTIAL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)
 Under N.J. Stat. § 2C:43-6.4(a), a person convicted of certain sexual offenses 1

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.)

 The urine sample provided by Cundiff was tested twice—each test returned a 2

positive result.

 Under that provision, “[a] person who violates a condition of a special sentence 3

imposed pursuant to this section without good cause is guilty of a crime of the fourth

degree.”

-2-

 

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. In June 2002, 1

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

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

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,
-3-

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., 460 F.3d 483, 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.