Abbott v. Latshaw

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

12-11-1998

Abbott v. Latshaw

Precedential or Non-Precedential:

Docket 97-3460

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Recommended Citation

"Abbott v. Latshaw" (1998). 1998 Decisions. Paper 276.

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Filed December 11, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3460

MARK ABBOTT,

Appellant

v.

LAURIE J. LATSHAW, ALBERT DIEHL, DENNIS GEORGE,

ROBERT STAFFORD and DONALD SARSFIELD

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 96-803)

Argued Under Third Circuit LAR 34.1(a)

June 11, 1998

Before: STAPLETON, COWEN, AND RENDELL,

Circuit Judges

(Opinion Filed: December 11, 1998)

David J. Millstein (ARGUED)

Jacquelyn A. Knupp

Millstein & Knupp

P.O. Box 467

Youngwood, PA 15697-0467

Attorneys for Appellant

Christopher K. McNally (ARGUED)

Murphy Taylor, P.C.

326 Third Avenue

Pittsburgh, PA 15222

Attorney for Appellees,

Dennis George, Robert Stafford

and Donald Sarsfield

John K. Greiner (ARGUED)

Belden, Belden, Persin & Johnston

117 North Main Street

Greensburg, PA 15601

Attorney for Appellee,

Albert Diehl

OPINION OF THE COURT

RENDELL, Circuit Judge:

On the evening of April 23, 1996, Laurie Latshaw

telephoned Constable Albert Diehl and enlisted his aid in

her plan to take a van from her former husband, Mark

Abbott, the next day. Although Latshaw recovered the van,

her plan was less than successful in that Abbott then filed

an action under 42 U.S.C. S 1983 against her, Diehl, and

three Greensburg, Pennsylvania, police officers who arrived

on the scene to assist the constable, for violation of his

Fourteenth Amendment right to procedural due process.

The district court granted summary judgment and

dismissed Abbott's claim against all of the defendants,

determining that the law enforcement officers were entitled

to qualified immunity, and that both the pleadings and the

evidence failed to implicate Latshaw in any state action.

Abbott appeals the district court's dismissal of hisS 1983

claim against all of the defendants, as well as its denial of

his motion to add a claim alleging a violation of the Fourth

Amendment. We will affirm summary judgment in favor of

Officer Sarsfield and Officer Stafford of the Greensburg

police department on qualified immunity grounds, but will

reverse dismissal of Abbott's S 1983 claim against Diehl,

Lieutenant George of the Greensburg police, and Latshaw.

2

We will also reverse the district court's denial of leave to

amend the complaint.

I. BACKGROUND

Mark Abbott and Laurie Latshaw were married from 1983

until 1993. Latshaw's father, Dale Feather, purchased a

van with "GMAC" financing in 1989, and received a

Commonwealth of Pennsylvania certificate of title issued in

his name. On November 18, 1991, Feather and Abbott

signed a Bill of Sale in which Feather agreed to"grant[ ],

sell[ ], convey[ ] and deliver[ ]" the van to Abbott "free and

clear of all liens and encumbrances . . . subject to the

Purchaser paying all of the loans and encumbrances levied

against" it. Thereafter, Abbott and Latshaw used the van,

but its title and registration remained in Feather's name.

Abbott retained sole possession of the van after he and

Latshaw were divorced in 1993. He had completely paid off

the GMAC loan on February 25, 1994, but chose not to

transfer the van's title and registration to his own name

because by doing so he would have forfeited the van's non-

transferable warranty.

On April 23, 1996, Feather assigned the van's title to his

daughter by writing her name and address on the reverse

side of the Certificate of Title alongside his notarized

signature. The next day, Latshaw took the document to

Greensburg where a title service reissued the van's

registration in her name. She then telephoned Albert Diehl,

a Westmoreland County constable, and informed him"that

[she had] the title to the car, it is signed over to [her] and

that [she] needed help in retrieving it from Mark Abbott."

She expected the constable to "tell Mark that, yes, the [van]

was [hers] and [she] could take it and that was it." Latshaw

admits that she contacted Diehl in his capacity as a

constable. She also testified that she paid him for his

services.1

_________________________________________________________________

1. The transcript of Latshaw's deposition reads as follows:

Q. Now, when you contacted Al Diehl, you were cont acting him as

a constable; is that correct?

3

On April 25, 1996, Latshaw and Diehl met outside

Abbott's chiropractic office in Greensburg. Neither of them

had notified Abbott of the impending seizure. As proof that

she owned the van, Latshaw showed the constable the

Pennsylvania certificate of title issued in her father's name

and bearing a notarized assignment to her, a temporary

registration issued in her name, temporary license plates,

and an insurance card indicating that the van was insured

by a policy issued to James P. Latshaw, presumably her

husband.

Convinced that Latshaw was entitled to immediate

possession of the van, Diehl approached Abbott, identified

himself as a constable, and asked him if he would give

Latshaw the keys to the van. Abbott refused. He insisted

that he had paid for the van, had driven it for seven years,

and had a bill of sale at home establishing that he owned

it. Abbott asked if he could drive the van home to get the

proof of ownership, but Diehl threatened to arrest Abbott if

he drove off in "her vehicle." Abbott then telephoned David

Harr, the attorney who had represented him in the sale

transaction with Feather. Harr told Diehl that the bill of

sale existed, and warned the constable that he would be

held liable if he helped Latshaw take the van.

Shortly thereafter, Diehl telephoned the Greensburg

police and requested that an officer come to the scene to

review Latshaw's documentation. Lieutenant Dennis

George, Officer Robert Stafford, and Officer Donald

Sarsfield of the Greensburg police arrived on the scene in

response to the call. They reviewed Latshaw's paperwork

and confirmed by radio that the van was in fact registered

_________________________________________________________________

A. Yes, I was.

Q. And did you pay him for his services?

A. Yes, I did.

Q. How much did you pay him?

A. $ 40.

(Latshaw Dep. at 13-14).

4

to Dale Feather. One of them told Latshaw she was entitled

to immediate possession of the van.

David J. Millstein, Abbott's current counsel, arrived at

the scene at about this time. He spoke briefly to Diehl, and

then entered into a heated discussion with Lt. George in

which he vehemently opposed the seizure. When words

proved ineffective, Millstein took action. By then, a

locksmith whom Diehl had recommended to Latshaw had

cut a key to the van. Millstein boxed the van into its

parking space with his car in order to prevent Latshaw from

driving it out of the parking lot. According to the police

report submitted by Stafford, Lt. George then threatened to

arrest Millstein if he did not make way for the van. When

Millstein refused to do so, Lt. George told him that he was

under arrest. The Greensburg police officers then issued

him a summary citation for disorderly conduct and briefly

detained him in a police car. Meanwhile, Latshaw managed

to maneuver the van around Millstein's car and drove off.

Abbott commenced a 42 U.S.C. S 1983 action against

Diehl, the Greensburg police officers, and Latshaw,

claiming that they deprived him of property under color of

state law without due process. The district court had

jurisdiction pursuant to 28 U.S.C. SS 1331 and 1343(a)(3),

and 42 U.S.C. S 1983. Abbott now appeals from the July

21, 1997, final order of the district court granting summary

judgment on qualified immunity grounds in favor of Diehl

and the Greensburg police officers, dismissing hisS 1983

claim against Latshaw for lack of state action, and denying

him leave to amend his complaint to include an alleged

violation of the Fourth Amendment.

We have jurisdiction to review the final order of the

district court under 28 U.S.C. S 1291. In reviewing an order

of summary judgment predicated on qualified immunity

grounds, we exercise plenary review over the district court's

legal conclusions. See Kornegay v. Cottingham , 120 F.3d

392, 395 (3d Cir. 1997). We will affirm summary judgment

if, after drawing all reasonable inferences from the

underlying facts in the light most favorable to the non-

moving party, we conclude that there is no genuine issue of

material fact to be resolved at trial, and that the moving

party is entitled to judgment as a matter of law. See id.

5

II. DISCUSSION

The district court held that although Abbott asserted a

property interest upon which a S 1983 claim for violation of

procedural due process may be predicated, qualified

immunity shields the officers from potential liability for

their role in the seizure. We agree with the finding that the

officers were state actors and effected a constitutional

deprivation, but part company with the district court on the

issue of qualified immunity.

A. 42 U.S.C. S 1983

Section 1983 provides a cause of action for violations of

federally secured statutory or constitutional rights"under

color of state law." 42 U.S.C. S 1983. See West v. Atkins,

487 U.S. 42, 48 (1988). Abbott alleges in his S 1983 claim

that Constable Diehl and the Greensburg police officers

violated his Fourteenth Amendment right to procedural due

process by using the authority vested in Pennsylvania law

enforcement officers to deprive him of property without

prior notice and an opportunity to be heard. If their

conduct satisfies the state action requirement of the Due

Process Clause, then it also qualifies as action"under color

of state law" for S 1983 purposes. See Lugar v. Edmondson

Oil Co., 457 U.S. 922, 935 n.18 (1982).

1. Constable Diehl and the Greensburg Police Officers

Where, as here, defendants have successfully raised the

shield of qualified immunity in a S 1983 action, an

appellant trying to reverse summary judgment bears the

initial burden of showing that the defendants violated a

clearly established statutory or constitutional right. See

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)

(citing In re City of Phila. Litig., 49 F.3d 945, 961 (3d Cir.

1995)). In particular, Abbott must establish that the officers

were acting as state actors when they deprived him of a

property interest to which he had a legitimate claim of

entitlement without the process he deserved.

a. State Action

State action is a threshold issue in a Fourteenth

Amendment claim. "[T]he deprivation must be caused by

6

the exercise of some right or privilege created by the State

. . . or by a person for whom the state is responsible," and

"the party charged with the deprivation must be a person

who may fairly be said to be a state actor." Lugar, 457 U.S.

at 937. The traditional definition of action under color of

state law is similar, and requires that one liable under

S 1983 "have exercised power `possessed by virtue of state

law and made possible only because the wrongdoer is

clothed with the authority of state law.' " West, 487 U.S. at

49 (quoting United States v. Classic, 313 U.S. 299, 326

(1941)).

We need not dwell on whether Diehl and the Greensburg

police officers were state actors. They were clearly invested

with the power and authority of the state when they

assisted Latshaw, and "state employment is generally

sufficient to render the defendant a state actor." Lugar, 457

U.S. at 935 n.18. In Pennsylvania, constables are elected

public officials with prescribed duties and liabilities, see 13

Pa. Cons. Stat. Ann. SS 1, 41, 45 (1998), and we likewise

consider police officers to be a "set of state actors."

Michigan v. Jackson, 475 U.S. 625, 634 (1986). Diehl

admits that he acted as a constable, and identified himself

as such to Abbott. The other officers arrived on the scene

in response to Diehl's call for assistance, and were on duty.

All four law enforcement officers were clearly state actors.

b. Deprivation of a Constitutional Right

It is elementary that procedural due process is implicated

only where someone has claimed that there has been a

taking or deprivation of a legally protected liberty or

property interest. See Board of Regents v. Roth , 408 U.S.

564, 569 (1972). It is also well established that possessory

interests in property invoke procedural due process

protections. See Fuentes v. Shevin, 407 U.S. 67, 87 (1972).

In Fuentes, the Supreme Court struck down as

unconstitutional Florida and Pennsylvania prejudgment

replevin procedures used by creditors to recover household

goods purchased under conditional sales contracts and on

which payments were allegedly overdue. "Clearly their

possessory interest in the goods, dearly bought and

protected by contract, was sufficient to invoke the

7

protection of the Due Process Clause." Id. at 86-87 (footnote

omitted).2 It is equally clear that Abbott's possessory

interest in the van he had driven for seven years invoked

the protection of the Due Process Clause.

At the core of procedural due process jurisprudence is

the right to advance notice of significant deprivations of

liberty or property and to a meaningful opportunity to be

heard. See LaChance v. Erickson, ___ U.S. ___, 118 S. Ct.

753, 756 (1998); Boddie v. Connecticut, 401 U.S. 371, 379

(1971). Prior notice is not, however, absolutely necessary so

long as other procedures guarantee protection against

erroneous or arbitrary seizures. See Mitchell v. W. T. Grant

Co., 416 U.S. 600, 605-606 (1974); Finberg v. Sullivan, 634

F.2d 50, 58 (3d Cir. 1980) (en banc). In Mitchell, the Court

upheld a Louisiana statute requiring creditors to obtain

judicial approval, post a bond, and submit a verified

petition or affidavit before they sequestered property

without notice from debtors entitled to seek immediate

dissolution of the writ or to regain possession of the

sequestered goods by filing a bond. Comparable procedures

did not protect Abbott here. The Court has also found prior

notice unnecessary in rare cases where (1) a seizure was

directly necessary to secure an important governmental or

general public interest, (2) there was a special need for very

prompt action, and (3) "the State has kept strict control

over its monopoly of legitimate force: the person initiating

the seizure has been a government official responsible for

determining, under the standards of a narrowly drawn

statute, that it was necessary and justified in a particular

instance." Fuentes, 407 U.S. at 91. This rare exception to

the general requirement of providing notice before state

action deprives an individual of a protected property

interest is also inapplicable here.

_________________________________________________________________

2. The defendants argue that Abbott had no property interest in the van

because he did not list it among his assets in a prior bankruptcy

proceeding, and is therefore judicially estopped from claiming he owns it.

They also contend that his ownership of the van was uncertain because

it was not explicitly awarded to him in the divorce proceedings. Because

deprivation of a possessory interest alone invokes the right to procedural

due process, we need not consider these arguments as to who owned the

van.

8

Abbott has a strong claim against Diehl for violating his

right to procedural due process by failing to give him

advance notice and an opportunity to be heard prior to

Latshaw's seizure of the van. The constable played a

principal role in the seizure. Latshaw enlisted him, and

paid for his help because she believed that she could not

take the van from Abbott without it. According to Abbott,

"Mr. Diehl walked into my office and identified himself as a

constable and told me that he was [there to take my

vehicle," and that "we're going [to] take the vehicle one way

or another." The constable threatened to arrest Abbott for

driving "her vehicle" if he tried to drive the van home.

Viewing the record in the light most favorable to Abbott, we

find that a reasonable jury could conclude that Diehl used

his public authority to help Latshaw take possession of the

van, and as such was obligated to notify Abbott of the

seizure in advance and to provide him with a meaningful

opportunity to be heard.

The Greensburg police officers were called to the scene to

check Latshaw's documentation, which they did. There is

no evidence that two of the officers -- Sarsfield and Stafford

-- did any more than this. The mere presence of police at

the scene of a private repossession does not, alone,

constitute state action causing a deprivation of a protected

property interest. In Menchaca v. Chrysler Credit Corp., 613

F.2d 507 (5th Cir. 1980), the Fifth Circuit Court of Appeals

declined to find state action on the part of police officers

who arrived at the scene of a self-help repossession in

response to a report regarding a disturbance, maintained

the peace, but did not take sides or assist the private

repossessor in any way. Id. at 511-13. Officers Sarsfield

and Stafford confined their conduct to the routine police

procedures of checking the vehicle registration, and cannot

be said to have used state action to deprive Abbott of his

due process rights. See United States v. Coleman , 628 F.2d

961, 964 (6th Cir. 1980) (acquiescence by police does not

transform private acts into state action; police presence is

not necessarily encouragement). However, Lieutenant

George did not remain neutral, but advised Latshaw that

she had a right to immediate possession of the van.

Lt. George also ignored Millstein's ardent protest of the

seizure, and threatened to arrest Millstein if he did not

9

move his car to make way for Latshaw. Although he was

not the instigator, a jury could find that Lt. George, by his

conduct, joined forces with Diehl in the unconstitutional

deprivation, going beyond the permissible conduct outlined

in Menchaca. See, e.g., Booker v. City of Atlanta, 776 F.2d

272, 274 (11th Cir. 1985) (plaintiff can withstand summary

judgment if jury could find that police involvement

constitutes intervention and aid). This affirmative

intervention and aid constitutes a sufficient basis for a

reasonable trier of fact to find that Lt. George played a role

in the seizure and resulting violation of Abbott's

constitutional rights. Sarsfield and Stafford are therefore

entitled to dismissal of the claims against them, but

Lt. George is implicated in the constitutional violation.

2. Laurie Latshaw

Although not an agent of the state, a private party who

willfully participates in a joint conspiracy with state officials

to deprive a person of a constitutional right acts"under

color of state law" for purposes of S 1983. See Dennis v.

Sparks, 449 U.S. 24, 27-28 (1980); Adickes v. S. H. Kress

& Co., 398 U.S. 144, 152 (1970); McKeesport Hosp. v.

Accreditation Council for Graduate Med. Educ., 24 F.3d 519,

524 (3d Cir. 1994) ("State action may be found if the private

party has acted with the help of or in concert with state

officials."). The district court dismissed Abbott's S 1983

claim against Latshaw sua sponte because it found that his

complaint failed to allege a conspiracy between Latshaw

and Diehl, and that "the record reveal[ed] no basis to infer

that any such allegation could withstand scrutiny." Abbott

had alleged in his complaint that Diehl acted "at the

instance and request of Defendant Latshaw" and that

Latshaw was thus "acting under color of state law" for

purposes of the lawsuit. Further, the complaint depicted

joint action by Latshaw and Diehl in effectuating the

recovery of the van. This is not a case in which the

complaint contains conclusory allegations of concerted

action but is devoid of facts actually reflecting joint action.

See, e.g., Fries v. Helsper, 146 F.3d 452, 458 (7th Cir.

1998), cert. denied, 67 U.S.L.W. 3106, 3151 (U.S. Oct. 13,

1998) (No. 98-219). Rather, the complaint easily satisfied

10

the standards of notice pleading; no more is required of a

plaintiff in S 1983 cases. See Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163,

168-69 (1993). The district court's dismissal sua sponte

was improper because the pleading contained sufficient

allegations to withstand a motion to dismiss. Further, we

find the court's conclusion that the record contained no

facts which could support a conspiracy allegation to have

been premature -- since no motion for summary judgment

had been filed -- but also curious in light of the facts borne

out by the evidence, including Latshaw's statement under

oath that she contacted Diehl and that she paid him to

help her take possession of the van. (See Latshaw Dep. at

14). We will therefore reverse the district court's sua sponte

dismissal of Abbott's S 1983 claim against Latshaw.

B. Qualified Immunity

Qualified immunity shields public officials performing

discretionary functions from S 1983 and Fourteenth

Amendment liability "insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). Our qualified

immunity inquiry thus proceeds in two steps. See Sharrar

v. Felsing, 128 F.3d 810, 828 (3d Cir. 1997). First, we must

determine whether the defendants violated "clearly

established" rights. Second, we must decide whether, in

light of the concrete, clearly established, and particular law

applicable on April 25, 1996, and the information then

available, a reasonable officer would have believed that the

conduct of Diehl and/or the Greensburg police officers

deprived Abbott of his right to procedural due process. See

Anderson v. Creighton, 483 U.S. 635, 640-41 (1987); Reitz

v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997).

It is readily apparent that the applicable law regarding

procedural due process was "clearly established" at the

time of the alleged violation of Abbott's rights. As we noted

earlier, the Supreme Court's 1972 decision in Fuentes held

that due process protects possessory interests in property.

407 U.S. at 87. Thus, the law in this area was clear for at

11

least twenty-four years prior to the incident involving

Abbott and the defendants.

However, resolution of the second element of the qualified

immunity test is more complex. The district court

determined that an objectively reasonable officer in the

same situation would not have realized that the defendants

were violating Abbott's rights, and ruled that Diehl and the

Greensburg police officers were thus immune fromS 1983

liability for helping Latshaw. The court held that an officer

who had reviewed Latshaw's documentation would

reasonably have concluded that she was entitled to

immediate possession of the van. Therefore, it found, Diehl

and the Greensburg police officers could not have believed

they were denying Abbott due process of law. We disagree.

The district court and the defendants rely heavily on the

fact that under Pennsylvania law certificates of title

represent "prima facie evidence of the facts appearing on

the certificate." 75 Pa. Cons. Stat. Ann. S 1106(c) (1998).

However, the district court and the parties have overstated

the importance of Latshaw's documentation, while ignoring

the established precedent of Fuentes as well as the overall

context of the seizure.

At the heart of Fuentes is the principle that it is not for

law enforcement officers to decide who is entitled to

possession of property. Rather, it is the domain of the

courts, and citizens are to have a meaningful opportunity to

be heard as to their rights before they are finally deprived

of possession of property. Diehl's curbside courtroom, in

which he decided who was entitled to possession, is

precisely the situation and deprivation of rights to be

avoided. Diehl knew that Abbott had once been married to

Latshaw and had been driving the van for seven years.

Moreover, he had reason to believe -- based on the

statements of Abbott, Harr, and Millstein -- that Abbott

had a bill of sale at home to support his ownership of the

vehicle. In his single-minded reliance on Latshaw's

documentation, Diehl rode roughshod over Fuentes and

ignored the broader context of the seizure which militated

against the legality and reasonableness of his hasty

conclusion that Latshaw, not Abbott, was entitled to

immediate possession of the van. An official familiar with

12

the facts then known and the law then applicable would

have reasonably believed that his conduct was violating

clearly established law. As such, we conclude that the

district court erred when it granted summary judgment in

favor of Diehl on qualified immunity grounds.

We also conclude that an objectively reasonable officer

would have realized the illegality of Lt. George's conduct.

Reasonable police officers should know from the

established precedent of Fuentes that their role is not to be

participants in property deprivations without notice and an

opportunity to be heard. There came a point during this

incident when Lt. George's role changed from the protector

of the peace to the enforcer. The Greensburg Police

Department Supplemental Report indicates that Lt. George

told Millstein that he would be arrested if he did not move

his van, and states that, when Millstein refused to

cooperate, Lt. George "grabbed" him by the arm and "told

[him] that he was under arrest." (App. at 541). In light of

Fuentes, we believe that a reasonable officer in Lt. George's

position would have known that such behavior crossed the

line of permissible conduct. We will thus reverse summary

judgment on qualified immunity grounds as to Lt. George

as well.

III. MOTION FOR LEAVE TO AMEND THE COMPLAINT

The district court denied Abbott leave to amend his

complaint to include an alleged Fourth Amendment

violation based on its findings that the defendants did not

"seize" Abbott's van, and that a Fourth Amendment claim

"would be futile in light of the defendant officers' right to

qualified immunity under the circumstances." We review

the district court's denial of leave to amend a complaint for

abuse of discretion. See Lewis v. Curtis, 671 F.2d 779, 783

(3d Cir. 1982). However, we also recognize that"[i]f a

district court concludes that an amendment is futile based

upon its erroneous view of the law, it abuses its discretion."

R.M. Smith v. National Collegiate Athletic Ass'n, 139 F.3d

180, 190 (3d Cir. 1998). Here, we find fault with both of the

district court's rationales, and we conclude that the court

abused its discretion in denying Abbott leave to amend.

13

First, in light of the Supreme Court's expansive view of

the concept of "seizure" under the Fourth Amendment, as

set forth in Soldal v. Cook County, Ill., 506 U.S. 56, 61-65

(1992) (a Fourth Amendment "seizure" of property "occurs

when `there is some meaningful interference with an

individual's possessory interests in that property,' " (citation

omitted)), it is possible that plaintiff could in fact state a

constitutional claim. Further, the district court's ruling as

to qualified immunity, based as it is on the immunity issue

relating to a due process violation, is not well-founded. The

court opined that because qualified immunity applied to

Abbott's due process claim, it necessarily would apply to

his Fourth Amendment claim as well.3 Yet whether the

defendants are entitled to qualified immunity from a claim

under the Fourteenth Amendment is a wholly different

inquiry from whether the defendants are entitled to

qualified immunity from a Fourth Amendment claim

involving the seizure of personal property. The latter inquiry

involves whether, in light of clearly established Fourth

Amendment law applicable on April 25, 1996, a reasonable

officer in the position of Diehl and Lt. George would have

believed that their conduct violated Abbott's Fourth

Amendment rights. This issue has not even been raised, let

alone analyzed. Leave to amend the complaint should have

been granted.

IV. CONCLUSION

For the foregoing reasons, we will affirm the district

court's order of summary judgment in favor of Officers

Sarsfield and Stafford, but will reverse the grant of

summary judgment as to Constable Diehl and Lt. George.

We will also reverse the district court's dismissal of Abbott's

S 1983 claim against Latshaw, and its denial of leave to

amend the complaint, and we will remand to the district

court for further proceedings consistent with this opinion.

_________________________________________________________________

3. The district court made this determination without the benefit of any

briefing by the parties. In opposing Abbott's motion for leave to amend,

none of the defendants had argued that the amendment was futile

because of the availability of a qualified immunity defense.

14

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15