Rodney Handy, Jr. v. Leeloni Palmiero

                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                     ________________

                           No. 19-3156
                        ________________

                      RODNEY HANDY, JR.,

                                Appellant

                                 v.

             LEELONI PALMIERO, INDIVIDUALLY;
              SGT. BALDOMERO, INDIVIDUALLY;
          DETECTIVE ROBERT HAGY, INDIVIDUALLY;
             DETECTIVE HORGER, INDIVIDUALLY;
            DETECTIVE SULLIVAN, INDIVIDUALLY;
         DOES 1-10, IN THEIR INDIVIDUAL CAPACITIES;
            COMMISSIONER PHILADELPHIA POLICE;
         CITY OF PHILADELPHIA POLICE DEPARTMENT;
THE CITY AND COUNTY OF PHILADELPHIA, C/O LAW DEPARTMENT
                        ________________

           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                     (D.C. No. 2-17-cv-03107)
           Honorable Juan R. Sanchez, U.S. District Judge
                        ________________

            Submitted Under Third Circuit L.A.R. 34.1(a)
                       November 17, 2020

     Before: JORDAN, KRAUSE, and RESTREPO, Circuit Judges


                 (Opinion filed: December 4, 2020)
                                    ________________

                                       OPINION*
                                    ________________




KRAUSE, Circuit Judge.

       Appellant Rodney Handy challenges the District Court’s grant of qualified

immunity on summary judgment to the officers who conducted a search of his home that

did not result in charges. He also disputes the Court’s dismissal of his remaining state law

claims for a lack of jurisdiction. Perceiving no error in the District Court’s rulings, we will

affirm.1

I.     Discussion

       A.     Waiver

       Before addressing the merits of Handy’s contentions regarding immunity, we first

consider his argument that Appellees waived qualified immunity by failing to timely file




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
       1
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a), and we
have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We review a grant of
summary judgment de novo, see Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d
Cir. 2016), and will affirm if, “[v]iewing the evidence in the light most favorable to the
nonmovant, . . . there is ‘no genuine issue as to any material fact [such] that the moving
party is entitled to judgment as a matter of law,’” Kelly v. Borough of Carlisle, 622 F.3d
248, 253 (3d Cir. 2010). We review decisions regarding the waiver of an affirmative
defense and the declination of supplemental jurisdiction for abuse of discretion. See
Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012); Maher Terminals, LLC v. Port Auth.
of N.Y. and N.J., 805 F.3d 98, 104 (3d Cir. 2015).
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their answer to the amended complaint. We review the District Court’s decision

regarding the waiver of an affirmative defense for abuse of discretion. Sharp v. Johnson,

669 F.3d 144, 158 (3d Cir. 2012). While qualified immunity is an affirmative defense

that normally should be asserted in an answer, it also may be raised in a motion for

summary judgment unless (1) the defendant has failed to demonstrate “a reasonable

modicum of diligence in raising the defense” and (2) “the plaintiff has been prejudiced by

the delay.” Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 210 (3d Cir. 2001).

       Here, the District Court properly rejected Handy’s waiver argument because,

despite Appellees’ questionable diligence in prosecuting the case generally, Handy failed

to show any actual prejudice. See Sharp, 669 F.3d at 158. Handy’s Fourth Amendment

claim and Appellees’ claim for immunity turn on the resolution of the same factual

question—whether the search of Handy’s home was supported by probable cause—and

Handy had ample opportunity to develop the record on this question during discovery,

irrespective of Appellees’ delay. Indeed, Handy simply catalogs the negative

consequences of delay without demonstrating that Appellees’ conduct actually

“imped[ed] [his] ability to prepare a full and complete defense.” Ware v. Rodale Press,

Inc., 322 F.3d 218, 223 (3d Cir. 2003). Without more, “these possibilities are not in

themselves enough to demonstrate that [Handy] cannot receive a fair trial” and therefore

suffered prejudice. United States v. Marion, 404 U.S. 307, 326 (1971). Thus, the District

Court did not abuse its discretion by permitting Appellees to raise their qualified

immunity defense on a motion for summary judgment. See Eddy, 256 F.3d at 209.



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       B.     Qualified Immunity

       Turning to the substance of Handy’s appeal, we address his assertion that the

District Court erred in concluding that Appellees were entitled to qualified immunity.

This doctrine will shield state actors “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010).

       In the Fourth Amendment context, defendants are “presumptively entitled to

qualified immunity from . . . claims premised on a lack of probable cause,” where they

“relie[d] in good faith on a prosecutor’s legal opinion,” id. at 255–56, or the approval of a

neutral magistrate, Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). Of course,

such circumstances do not automatically confer immunity because the touchstone is “the

‘objective reasonableness’ of [their] belief in the lawfulness of [their] actions.”

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). Thus, a plaintiff may rebut the

reasonableness of the officers’ reliance—and therefore their presumptive immunity—by

establishing that “the warrant was based on an affidavit so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable.” United States v.

Pavulak, 700 F.3d 651, 663–64 (3d Cir. 2012).

       Handy, however, has failed to meet the “high” threshold to rebut this presumption.

Id. at 664. He raises several challenges to the validity and contents of the probable cause

affidavit, but none casts doubt on Appellees’ reliance on the prosecutor’s legal opinion

and the Magistrate Judge’s approval of the warrant as “the clearest indication that the

officers acted in an objectively reasonable manner.” Messerschmidt, 565 U.S. at 546–47.

                                              4
For example, despite Handy’s objections to the strength of the evidence in the affidavit,

he makes no claim that the affidavit was merely a “bare bones” submission. Pavulak,

700 F.3d at 664. Indeed, far from “rely[ing] [solely] on an officer’s unsupported belief

that probable cause exists,” the affidavit “had been prepared using first-hand

information,” including Handy’s admission that he owned and stored at his home a

handgun matching the cartridge casings recovered from the scene. Id. at 664. And

although the affidavit is not in the record, we have no reason to doubt the Magistrate’s

acknowledgment or the evidence supporting the document’s existence, such as the

reference to its attachment in the warrant itself and Detective Palmiero’s testimony

regarding its contents.2

       In short, it was “objectively reasonable,” Messerschmidt, 565 U.S. at 555, for

Appellees to rely on the prosecutor’s and Magistrate’s endorsements that there was

probable cause to search Handy’s home and, in the absence of a “genuine issue as to any

material fact” on that subject, Kelly, 622 F.3d at 253, Appellees are entitled to qualified

immunity.

       C.     State Law Claims

       Finally, while conceding that his claim for defamation is time-barred, Handy

argues that the District Court erred in dismissing, rather than remanding, his remaining



       2
         Handy also argues spoliation on appeal, but he has waived this argument by
failing to raise it below, see Orie v. Dist. Att’y Allegheny Cty., 946 F.3d 187, 195 (3d Cir.
2019), and, regardless, he has not alleged any facts indicating “actual suppression or
withholding of evidence” to support his contention, Bull v. United Parcel Serv., Inc., 665
F.3d 68, 79 (3d Cir. 2012).
                                              5
state law claims and further erred in dismissing them with prejudice, which he suggests

will preclude his refiling in state court. Handy is mistaken on both counts. Once the

District Court resolved his federal law claims, it was well within its discretion to dismiss

his state law claims, as no “considerations of judicial economy, convenience, [or] fairness

to the parties” justified the continued exercise of pendent jurisdiction. North Sound

Capital LLC v. Merck & Co., 938 F.3d 482, 494 n.11 (3d Cir. 2019). And, although the

District Court did not specify whether it was dismissing Handy’s state law claims with or

without prejudice, that dismissal is deemed to be without prejudice because it was not

accompanied by a “clear and explicit statement” that it was “with prejudice.” Papera v.

Pa. Quarried Bluestone Co., 948 F.3d 607, 611 (3d Cir. 2020). As a dismissal without

prejudice does “‘not operat[e] as an adjudication upon the merits,’ . . . and thus does not

have a [claim-preclusive] effect,” id., nothing in the styling of the District Court’s

decision prevents Handy from refiling in state court or warrants remand.

II.    Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




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