Mary Primrose v. Trent Mellott

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3927

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MARY K. PRIMROSE,

Appellant

v.

TRENT MELLOTT; TOWNSHIP OF UPPER ALLEN

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No. 12-4037

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MARY K. PRIMROSE

v.

TRENT MELLOTT; TOWNSHIP OF UPPER ALLEN,

Appellants

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 1-11-cv-00835)

District Judge: Honorable Yvette Kane

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Submitted Under Third Circuit LAR 34.1(a)

July 12, 2013

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Before: GREENAWAY, JR., SHWARTZ and BARRY, Circuit Judges

(Opinion Filed: July 24, 2013)

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OPINION

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BARRY, Circuit Judge.

Mary Primrose instituted a civil rights action against Trent Mellott, pursuant to 42

U.S.C. § 1983, alleging that Mellott, a police officer employed by the Township of Upper

Allen, violated her First and Fourth Amendment rights by instructing her to remain in her

apartment and issuing her a summons for disorderly conduct following a confrontation

with her neighbor, Dixie Anderson. Mellott won following a jury trial, and the District

Court entered judgment in his favor and against Primrose. Primrose appeals, arguing that

the Court erred in not entering judgment as a matter of law on her First Amendment

claim and erroneously charged the jury on the elements of both of her claims. We will

affirm.

I.

This action arises out of a May 4, 2009 dispute over parking between Primrose

and Anderson, residents of the same apartment complex, a dispute that occurred in front

of Tammy Zechman, an employee of the apartment complex. At some point during the

dispute, Primrose called Anderson either a “noisy bitch” or a “nosy bitch.” Anderson

called the police, and, a short time thereafter, Mellott arrived and took statements from

Primrose, Anderson, and Zechman. Mellott eventually issued Primrose a summons for

disorderly conduct, in violation of 18 Pa. Cons. Stat. Ann. § 5503(a)(3), which makes it a

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crime to “use[] obscene language, or make[] an obscene gesture” with the “intent to cause

public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.”

Primrose was found not guilty following a trial before a magistrate judge, who found

reasonable doubt as to whether Primrose used the word “bitch” or the word “bitty.” A.

330-31.

Primrose filed this action alleging that Mellott falsely arrested her without

probable cause in violation of the Fourth Amendment and that his actions violated her

First Amendment free speech rights. The case was tried before a jury. Primrose testified

that she had received a ticket for parking in a handicap spot outside of her apartment

complex. At the office of the complex, Primrose confronted Anderson and asked her

whether she had reported Primrose to the police. According to Primrose, Anderson

became agitated, screaming and yelling, before Primrose called her a “nosey old biddy.”

A. 64. Anderson then threatened to call the police and Primrose returned to her

apartment. At some point, Mellott arrived on the scene, took Primrose’s statement, and

told her to wait in her apartment while he completed his investigation. Mellott later

returned and issued her a summons for disorderly conduct.

Anderson and Zechman told a different story. Anderson testified that Primrose

came into the apartment complex office “screaming,” called Anderson a “nosey bitch,”

pointed her finger in Anderson’s face, and came very close to Anderson’s face. Despite

being asked to leave by Anderson and Zechman, Primrose continued to “rant.” Zechman

testified that Primrose threatened Anderson by angrily swearing and “g[etting] in

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[Anderson’s] face.” Zechman also testified that she felt threatened. Both Anderson and

Zechman related their stories to Mellott. Mellott testified that he took statements from

Primrose, Anderson and Zechman, which largely comported with their respective

testimony at trial. He stated that he believed he had probable cause to charge Primrose

with violating several sections of the disorderly conduct statute, but found it sufficient to

issue her a summons for using obscene language in violation of § 5503(a)(3).

At the close of evidence, Mellott filed a motion for judgment as a matter of law

pursuant to Fed. R. Civ. P. 50(a), which the District Court denied. Primrose moved for a

directed verdict on her First Amendment count which the Court also denied. The jury

returned a verdict in favor of Mellott on both counts. Primrose now appeals.1

II.

Primrose argues, first, that the District Court erred in failing to enter judgment as a

matter of law in her favor with respect to her claim that Mellott violated her First

Amendment rights by issuing her a summons because she called her neighbor a “bitch.”

She contends that Mellott’s admission at trial that he issued her the summons because of

her use of obscene language entitled her to relief as a matter of law. While Primrose filed

a motion for a directed verdict following the close of evidence, she failed to renew her

motion for judgment pursuant to Rule 50(b). Because she failed to renew her Rule 50(b)

motion, she has forfeited this claim on appeal. See Unitherm Food Sys., Inc. v. Swift-

Eckrich, Inc., 546 U.S. 394, 404 (2006) (noting that Supreme Court precedents

1

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we have appellate

jurisdiction pursuant to 18 U.S.C. § 1291.

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“unequivocally establish that the precise subject matter of a party’s Rule 50(a) motion—

namely, its entitlement to judgment as a matter of law—cannot be appealed unless that

motion is renewed pursuant to Rule 50(b)”).2

Primrose also contends that the District Court erroneously instructed the jury with

respect to her First and Fourth Amendment claims. The Court charged as follows:

To prevail on [a First Amendment retaliation claim], Mary K. Primrose

must prove . . . : First, that plaintiff engaged in constitutionally protected

conduct; second, plaintiff was subjected to retaliatory action sufficient to

deter a person of ordinary firmness from exercising her constitutional rights

by Defendant Mellott; and, third, that there was a causal connection

between defendant’s alleged retaliatory activity and plaintiff’s

constitutionally protected conduct.

A. 32. The Court went on to explain that Primrose’s speech during her encounter with

Anderson “was protected under the First Amendment,” and that to establish causation,

Primrose must “prove that her protected speech was a substantial or motivating factor in

the alleged retaliatory action [issuing the summons] by defendant.” Id. These

2

In any event, the jury found that the Mellott’s action was supported by probable cause.

In Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court held that a First

Amendment retaliatory prosecution claim could not stand when probable cause

supporting the underlying criminal charge has been found. Id. at 252. The Court

considered but declined to reach whether Hartman’s logic also applied to First

Amendment retaliatory arrest claims in Reichle v. Howards, 132 S. Ct. 2088 (2012). The

Court did, however, hold that it was not clearly established that “an arrest supported by

probable cause could give rise to a First Amendment violation,” and that the defendant

police officers were therefore entitled to qualified immunity—despite pre-Hartman Tenth

Circuit precedent that probable cause did not foreclose a retaliatory arrest claim. Id. at

2097. We have not decided whether the logic of Hartman applies to retaliatory arrest

claims, and so it appears that Mellott would be entitled to qualified immunity on the First

Amendment claim. See Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (holding that

qualified immunity applies where the violated right is not clearly established at an

appropriate level of specificity).

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instructions comport with well-established case law on First Amendment retaliation

claims. See, e.g., Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003).

Primrose argues, however, that it was error for the District Court to use the word

“retaliate” and frame the action as a “retaliation claim,” because her cause of action

alleges a “direct violation” of her First Amendment rights. She claims that she was

arrested based on her protected speech uttered to Anderson, not to Mellott, and that

Mellott cannot “retaliate” for conduct directed at Anderson. Primrose, however, fails to

cite any authority recognizing a “direct violation” First Amendment arrest claim rather

than a “retaliatory arrest” claim. See generally Reichle v. Howards, 132 S. Ct. 2088

(2012) (analyzing First Amendment claim under retaliatory arrest framework where

plaintiff alleged officers arrested plaintiff because plaintiff criticized the Vice President).

More importantly, Primrose fails to establish that use of the word “retaliatory” constitutes

reversible error because it failed to “fairly and adequately present the issues in the case

without confusing or misleading the jury.” Donlin v. Philips Lighting N. Am. Corp., 581

F.3d 73, 79 (3d Cir. 2009) (internal quotation marks omitted). During the charge

conference, Primrose requested that the second element of her First Amendment claim

state that “Defendant Mellott’s conduct must be sufficient to deter a person of ordinary

firmness from exercising her constitutional rights,” S.A. 59, tracking essentially the same

language as the instruction given by the Court. Use of the single word “retaliation,”

particularly in light of the further explanation by the Court, could not have “confus[ed] or

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misle[d] the jury.”3 Donlin, 581 F.3d at 79.

The District Court’s instructions on the Fourth Amendment claim were also

proper. As an initial matter, Primrose requested the same jury instructions that were

given by the Court. A. 257-62; S.A. 58-60. We therefore review for plain error. See

Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 339 (3d Cir. 2005).

Primrose suggests that the Court should have directed the jury to find that there was no

probable cause to arrest Primrose, because, she contends, under Pennsylvania law, a

police officer does not have authority to arrest a person for a “summary offense” that

takes place out of the presence of a police officer. Of course, that is not the test we apply

for finding probable cause under the Fourth Amendment when evaluating a false arrest

claim. “A significant body of caselaw makes clear . . . why a Fourth Amendment

determination cannot turn on the exigencies of the law of a particular state or territory . . .

.” United States v. Laville, 480 F.3d 187, 193 (3d Cir. 2007); see also Virginia v. Moore,

553 U.S. 164, 176 (2008) (observing in context of warrantless arrests for crimes

committed in the presence of an arresting officer that “while States are free to regulate

such arrests however they desire, state restrictions do not alter the Fourth Amendment’s

protections”). Moreover, the test for probable cause is an objective one and “need only

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For the first time on appeal, Primrose also raises several errors in the instructions

regarding her First Amendment claim—that the jury should have been directed to find

that Primrose was in fact “deterred,” that the Court erred in permitting the jury to

consider Mellott’s antagonism or change in demeanor, and that the instructions

misrepresented the facts of the case. When a party fails to object or submit competing

instructions, we review for plain error. Fed. R. Civ. P. 51(d)(2). The disputed jury

instructions comported with the current state of the law, and, in any event, did not affect

Primrose’s substantial rights.

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exist as to any offense that could be charged under the circumstances.” Barna v. City of

Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994). Accordingly, the Court’s instructions

with respect to Primrose’s Fourth Amendment claim were proper. 4

III.

For the reasons set forth above, we will affirm the order of the District Court.

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Mellott cross-appeals the denials of his motion for summary judgment and his motion

for a directed verdict. Because we will affirm the final order in his favor, we need not

reach the issue of whether he was entitled to prevail as a matter of law at an earlier point.

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