Cheryl James v. Wilkes Barre City

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3345

___________

CHERYL JAMES; WARREN JAMES; NICOLE JAMES

v.

THE CITY OF WILKES-BARRE; WRIGHT TOWNSHIP;

WILKES-BARRE HOSPITAL COMPANY, LLC,

doing business as WILKES-BARRE GENERAL HOSPITAL;

THE WYOMING VALLEY HEALTH CARE SYSTEM;

THE WILKES-BARRE CITY POLICE DEPARTMENT;

THE WRIGHT TOWNSHIP POLICE DEPARTMENT;

DR. RUSSELL ELMER JAMES;

DR. NOEL PACLEB ESTIOKO; AMY LYNN CRAIG;

BETH ANN NOBLE; LORA DENISE PAULUKONIS;

BRIAN THOMAS MORAN; TANYA LYNN OSTOPICK;

RYAN RUSSELL SELTZER; CAROLE FLEMING PIROW;

DENNIS MONK; BRIAN STOUT;

MICHAEL MARSHALL; CHARLIE CASEY;

KATHY PICKARSKI VIDUMSKI; JASON FRANK KILLIAN

DR. MAUREEN M. LITCHMAN

Michael Marshall,

Appellant

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 10-cv-01534)

District Judge: Honorable James M. Munley

___________

Argued October 23, 2012

Before: HARDIMAN, GREENAWAY, JR., and

VANASKIE, Circuit Judges.

(Filed: November 29, 2012)

Rufus A. Jennings

John P. Morgenstern [Argued]

Deasey, Mahoney, Valentini & North

1601 Market Street

Suite 3400

Philadelphia, PA 19103-0000

Attorneys for Michael Marshall, Defendant-Appellant

James A. Brando [Argued]

William L. Higgs

Law Offices of William L. Higgs

386 South Mountain Boulevard

Mountain Top, PA 18707

Attorneys for Plaintiff-Appellees

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OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

2

This appeal requires us to decide whether the District

Court erred when it denied a police officer‘s motion to

dismiss a civil rights action.

I

On the evening of September 28, 2009, fifteen-year-

old Nicole James sent a text message to a friend stating that

she planned to commit suicide by ingesting ibuprofen pills.

The friend called 911 and soon thereafter Officer Michael

Marshall of the Wright Township Police Department arrived

at the James residence. Officer Marshall was accompanied

by two other police officers and emergency medical

personnel.

When questioned by her parents, Warren and Cheryl

James, Nicole admitted that she had planned to commit

suicide, but said that she had changed her mind and had not

ingested any pills. Nevertheless, Officer Marshall stated that

Nicole had to go to the hospital for an evaluation. Nicole‘s

parents disagreed, insisting that they wanted to handle the

matter themselves. Officer Marshall then ―informed Warren

and Cheryl that [he] would charge [them] with assisted

manslaughter if something happened to Nicole because they

did not send Nicole to the hospital with the emergency

medical services personnel.‖ Compl. ¶ 50. Mr. and Mrs.

James relented and gave permission for their daughter to be

taken to the hospital.

Officer Marshall then informed Mr. and Mrs. James

that one of them would need to accompany Nicole. They

initially refused, stating that they felt unable to travel because

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they had taken prescription medication earlier that evening.1

Officer Marshall persisted, however, and Mrs. James agreed

to go to the hospital with her daughter.

Cheryl James later brought suit against Officer

Marshall for false arrest and false imprisonment pursuant to

42 U.S.C. § 1983 in the Court of Common Pleas of Luzerne

County, Pennsylvania.2 Officer Marshall then removed the

case to the United States District Court for the Middle District

of Pennsylvania, and filed a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(6). In the alternative, Officer Marshall

argued that he was entitled to qualified immunity. The matter

was referred to Magistrate Judge Mildred E. Methvin, who

recommended that the claims be dismissed for failure to state

a claim. In light of this recommendation, the issue of

qualified immunity was not addressed.

After the Jameses filed objections, the District Court

rejected Magistrate Judge Methvin‘s Report and

Recommendation to the extent that it dismissed Mrs. James‘s

§ 1983 claims for false arrest and false imprisonment, and

1

Mrs. James had taken anti-depression medication and

had consumed numerous alcoholic beverages. She alleges

that the medication left her feeling extremely drowsy. Mr.

James had taken heart medication, which had the same side

effect.

2

The Complaint pleaded nineteen counts against

twenty-one defendants. Only the claims against Officer

Marshall for false arrest and false imprisonment are at issue

in this appeal. We have limited our recitation of the facts and

procedural history accordingly.

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denied Officer Marshall‘s motion to dismiss. James v. City of

Wilkes-Barre, 2011 WL 3584775, at *6 (M.D. Pa. Aug. 15,

2011). Officer Marshall appealed to this Court, arguing that

he was entitled to qualified immunity.

Because the District Court did not address the issue of

qualified immunity in its opinion, we summarily remanded

the matter for an explanation as to why it denied qualified

immunity to Officer Marshall. Two days later, the District

Court filed a supplemental memorandum opinion. James v.

City of Wilkes-Barre, 2012 WL 425236, at *1 (M.D. Pa. Feb.

9, 2012). The case is now ripe for disposition.

II

The District Court exercised jurisdiction under 28

U.S.C. §§ 1331 and 1343(a)(3). We have appellate

jurisdiction under 28 U.S.C. § 1291 and the collateral order

doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);

see also Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (―[T]he

applicability of the [collateral order] doctrine in the context of

qualified-immunity claims is well established; and this Court

has been careful to say that a district court‘s order rejecting

qualified immunity at the motion-to-dismiss stage of a

proceeding is a ‗final decision‘ within the meaning of §

1291.‖ (citing Behrens v. Pelletier, 516 U.S. 299, 307

(1996))).

Because this case comes to us upon a Rule 12(b)(6)

motion to dismiss, we accept the factual allegations contained

in the Complaint as true, but we disregard rote recitals of the

elements of a cause of action, legal conclusions, and mere

conclusory statements. See Iqbal, 556 U.S. at 678–79; Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007);

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220–21 (3d

Cir. 2011). We exercise de novo review of a district court‘s

denial of a motion to dismiss on qualified immunity grounds

as it involves a pure question of law. McLaughlin v. Watson,

271 F.3d 566, 570 (3d Cir. 2001) (citing Acierno v Cloutier,

40 F.3d 597, 609 (3d Cir. 1994)).

III

The doctrine of qualified immunity insulates

government officials who are performing discretionary

functions ―from liability for civil damages 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).

The Supreme Court has established a two-part analysis that

governs whether an official is entitled to qualified immunity.

Saucier v. Katz, 533 U.S. 194, 201 (2001). We ask: (1)

whether the facts alleged by the plaintiff show the violation of

a constitutional right; and (2) whether the right at issue was

clearly established at the time of the alleged misconduct. Id.;

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.

2010). Courts may address the two Saucier prongs in any

order, at their discretion. Pearson v. Callahan, 555 U.S. 223,

236 (2009). If the plaintiff fails to satisfy either prong, the

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

232.

A

The first question of the Saucier analysis is whether a

constitutional violation occurred. This ―is not a question of

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immunity, but whether there is any wrong to address.‖ Ray v.

Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010) (citing

Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007)). Here, the

Complaint alleges that Officer Marshall falsely arrested and

imprisoned Mrs. James when he insisted that she accompany

her daughter to the hospital in an ambulance.

B

To state a claim for false arrest under the Fourth

Amendment, a plaintiff must establish: (1) that there was an

arrest; and (2) that the arrest was made without probable

cause. See Groman v. Twp. of Manalapan, 47 F.3d 628, 634

(3d Cir. 1995); Dowling v. City of Phila., 855 F.2d 136, 141

(3d Cir. 1988). The Complaint at issue in this appeal fails to

allege facts that give rise to a seizure under the Fourth

Amendment. Accordingly, Officer Marshall is entitled to

qualified immunity on this claim.

―Only when the officer, by means of physical force or

show of authority, has in some way restrained the liberty of a

citizen may we conclude that a seizure has occurred.‖

Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry

v. Ohio, 392 U.S. 1, 19 n.16 (1968)) (internal quotation marks

omitted); see also Berg v. Cnty. of Allegheny, 219 F.3d 261,

269 (3d Cir. 2000) (―A person is seized for Fourth

Amendment purposes only if he is detained by means

intentionally applied to terminate his freedom of

movement.‖). When a person claims that her liberty is

restrained by an officer‘s ―show of authority,‖ a seizure does

not occur unless she yields to that show of authority.

California v. Hodari D., 499 U.S. 621, 626 (1991); United

States v. Smith, 575 F.3d 308, 313 (3d Cir. 2009). ―[T]he test

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for existence of a ‗show of authority‘ is an objective one: not

whether the citizen perceived that [s]he was being ordered to

restrict [her] movement, but whether the officer‘s words and

actions would have conveyed that to a reasonable person.‖

Hodari D., 499 U.S. at 628; see also United States v. Brown,

448 F.3d 239, 245 (3d Cir. 2006). We examine the totality of

the circumstances in determining whether a seizure occurred.

Bostick, 501 U.S. at 437; United States v. Crandell, 554 F.3d

79, 86 (3d Cir. 2009). Some factors indicative of a seizure

include ―the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of

the person of the citizen, or the use of language or tone of

voice indicating that compliance with the officer‘s request

might be compelled.‖ United States v. Mendenhall, 446 U.S.

544, 554 (1980); see also United States v. Drayton, 536 U.S.

194, 204 (2002) (concluding that the defendant was not

seized because ―[t]here was no application of force, no

intimidating movement, no overwhelming show of force, no

brandishing of weapons, no blocking of exits, no threat, no

command, not even an authoritative tone of voice‖).

Mrs. James does not claim that Officer Marshall used

any physical force. Instead, she alleges that he made a show

of authority. She asserts in the Complaint:

54. None-the-less [sic], the Wright Township

Police officers insisted that at least one parent

needed to travel with Nicole to the hospital.

55. Justifiably and reasonably believing herself

to be compelled by law to do so in reliance

upon the statements of the Wright Township

Police officers, Cheryl agreed to accompany

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Nicole because she believed herself to be in less

danger than Warren would be if he

accompanied Nicole.

Compl. ¶¶ 54, 55.

These allegations are insufficient to establish a show

of authority that rises to the level of a seizure under the

Fourth Amendment. First, the officers‘ insistence that Mrs.

James accompany her daughter to the hospital would not

cause a reasonable person to feel powerless to decline the

officers‘ request or otherwise terminate the encounter. See

Bostick, 501 U.S. at 436. Indeed, the Supreme Court has

repeatedly rejected the notion that a seizure occurs when an

officer approaches a citizen to ask questions or make

requests. See, e.g., Drayton, 536 U.S. at 203–04 (no seizure

when three officers boarded a bus and began questioning

passengers); Bostick, 501 U.S. at 434–35 (no seizure when

two officers approached a citizen on a bus and requested his

consent to search his luggage); Mendenhall, 446 U.S. at 555

(no seizure when two DEA agents approached a citizen at an

airport and requested identification and her airline ticket); see

also Crandall, 554 F.3d at 84 (―The Supreme Court has made

clear that a Fourth Amendment ‗seizure does not occur

simply because a police officer approaches an individual and

asks a few questions.‘‖ (quoting Bostick, 501 U.S. at 434)).

Mrs. James‘s assertion that she ―justifiably and

reasonably believ[ed] herself compelled by law‖ to comply

with Officer Marshall‘s request does not alter our conclusion.

In finding that Officer Marshall violated Mrs. James‘s

constitutional rights, the District Court reasoned:

9

[T]he complaint alleged that the police officers

asserted their authority and compelled Cheryl

James to accompany her daughter to the

hospital. She alleges that she had no choice in

the matter, and her freedom of movement was

thereby intentionally terminated by the actions

of the police . . . . If she can prove these facts to

a jury, [she] could prevail on her claim.

James, 2012 WL 425236, at *3. By crediting these

allegations, the District Court assumed that Mrs. James was

―compelled‖ to accompany her daughter to the hospital. This

was error because whether she was in fact ―compelled‖ to do

so is a legal conclusion. At the motion to dismiss stage, we

accept as true all factual assertions, but we disregard

threadbare recitals of the elements of a cause of action, legal

conclusions, and conclusory statements. See Iqbal, 556 U.S.

at 678–79; Twombly, 550 U.S. at 555–57; Burtch, 662 F.3d at

220–21. Although Mrs. James asks us to accept as fact her

assertion that she ―justifiably and reasonably believ[ed]

herself compelled by law,‖ in reality it is a legal conclusion

artfully pleaded as a factual assertion, which is not entitled to

a presumption of truth. See Iqbal, 556 U.S. at 678

(―Although for the purposes of a motion to dismiss we must

take all of the factual allegations in the complaint as true, we

‗are not bound to accept as true a legal conclusion couched as

a factual allegation.‘‖ (quoting Twombly, 550 U.S. at 555)).

As far as relevant factual averments go, the Complaint pleads

only that the officers ―insisted‖ that one parent accompany

Nicole. As we have explained, insistence alone is insufficient

to constitute a seizure under the Fourth Amendment.

10

Even if we were to consider Mrs. James‘s assertion

that she felt compelled by law, she does not establish that a

reasonable person would have felt she had no choice but to

comply. See Hodari D., 499 U.S. at 628; Brown, 448 F.3d at

245. As the Court of Appeals for the Seventh Circuit has

persuasively explained, a seizure results from

coercive pressure from state actors resulting in a

significant, present disruption of the targeted

person‘s freedom of movement. In our view, a

seizure typically involves an almost complete

restriction of movement—either a laying of

hands or a close connection (both temporally

and spatially) between the show of authority

and the compliance (as when a police officer

tells a suspect to get in the back of the squad car

but declines to handcuff him).

Kernats v. O’Sullivan, 35 F.3d 1171, 1180 (7th Cir. 1994).

Although we acknowledge that intimidating police

behavior might, under some circumstances, cause one to

reasonably believe that compliance is compelled, the officers‘

actions in this case did not rise to that level. There are no

allegations that the officers intimidated Mrs. James with a

threatening presence, engaged in any physical touching, or

displayed a weapon. See Mendenhall, 446 U.S. at 554. Nor

did the officers order her to the police station for questioning

or threaten to arrest her if she refused to accompany her

daughter to the hospital. See Hayes v. Florida, 470 U.S. 811,

812–13, 816 (1985) (finding a Fourth Amendment seizure

when police approached a citizen at his home, asked him to

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accompany them to the police station for questioning, and

threatened to arrest him when he initially refused).

The only fact that might point toward a seizure is

Officer Marshall‘s threat that Mr. and Mrs. James would be

charged with assisted manslaughter if they prevented Nicole

from going to the hospital and she actually committed

suicide. But that threat was not made in connection with Mrs.

James‘s decision to accompany Nicole to the hospital; rather,

it was made in the context of the parents agreeing to send

Nicole to the hospital in the first place, which does not

implicate a restriction on Mrs. James‘s freedom of movement.

Finally, we note that the facts alleged in the Complaint

differ significantly from the circumstances present in the few

cases we have located in which a seizure was found based on

the alleged restraint of a plaintiff‘s freedom of movement by

an official threat. See, e.g., White v. City of Markham, 310

F.3d 989, 992, 995 (7th Cir. 2002) (seizure occurred when

police officer placed hand on man‘s shoulder and told him

that if he did not leave immediately, he would be arrested);

Cassady v. Tackett, 938 F.2d 693, 694–96 (6th Cir. 1991)

(seizure occurred when executive director of a multi-county

jail barricaded herself in her office after the county jailer and

his deputies, brandishing weapons, threatened to kill her and

her husband). Tellingly, Mrs. James does not cite any case

factually similar to hers in which a seizure was found.

For the reasons stated, we hold that Mrs. James was

not seized in violation of the Fourth Amendment. Having

found no constitutional violation, we hold that Officer

Marshall is entitled to qualified immunity.

12

C

Mrs. James also alleges that she was falsely

imprisoned by Officer Marshall after she was forced to

accompany her daughter to the hospital. In this regard, the

Complaint alleges:

146. Wright Township Police Department

officers intended that Plaintiff Cheryl James

should accompany her daughter.

147. Wright Township Police used the force of

their authority and threat of future arrest to

compel Cheryl James to leave her home in an

ambulance.

148. Cheryl James was thereafter confined and

restrained to the ambulance.

Compl. ¶¶ 146–48.

To state a claim for false imprisonment, a plaintiff

must establish: (1) that she was detained; and (2) that the

detention was unlawful. See Wallace v. Kato, 549 U.S. 384,

389 (2007) (―The sort of unlawful detention remediable by

the tort of false imprisonment is detention without legal

process.‖ (citations omitted) (emphasis deleted)). A false

imprisonment claim under § 1983 which is based on an arrest

made without probable cause, as Mrs. James alleges here, is

grounded in the Fourth Amendment‘s guarantee against

unreasonable seizures. Groman, 47 F.3d at 636.

13

As we have explained, Mrs. James has not pleaded that

she was seized within the meaning of the Fourth Amendment.

She was urged by officers to accompany her daughter in the

ambulance, and she agreed to do so. She was free to leave at

any time. Indeed, she does not allege that any Wright

Township police officers accompanied her in the ambulance

or even that they proceeded to the hospital separately.

Accordingly, Mrs. James cannot show that she was falsely

imprisoned. Therefore, the District Court erred when it failed

to grant Officer Marshall qualified immunity on this claim as

well.

IV

For the foregoing reasons, we will reverse the

judgment of the District Court.

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