Gloria Whiting v. Larry Bonazza

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 13-1885
___________

GLORIA J. WHITING,
Appellant

v.

LARRY A. BONAZZA, Individually and in his official capacity
as a Police Officer of Smith Township;
AMBER PRICE, Individually and in her official capacity
as a Police Officer of Burgettstown Borough;
SMITH TOWNSHIP, a Municipality;
CHIEF BERNIE LARUE, Individually and in his official capacity
as Chief Police Officer of Smith Township;
BURGETTSTOWN BOROUGH, a Municipality;
CHIEF GEORGE ROBERTS, Individually and in his official capacity
as Chief Police Officer of Burgettstown Borough
____________________________________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2:09-cv-01113)
District Judge: Honorable Joy Flowers Conti
____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)
October 11, 2013
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: October 16, 2013)
_________

OPINION
_________
PER CURIAM

Gloria Whiting appeals pro se from the District Court’s entry of judgment in her

civil rights case. For the following reasons, we will affirm.

I.

On the night of June 16, 2008, Whiting argued with a neighborhood teenager

about the local playground curfew. Whiting called 911 to report the incident, and Smith

Township police officer Larry Bonazza was dispatched to the scene. As Officer Bonazza

arrived, the situation was escalating. Whiting had moved from her house to an adjacent,

unoccupied property where several of her neighbors had also gathered. The neighbors

were voicing their opposition to the playground curfew, and Whiting was yelling at the

neighbors in kind. In an attempt to quell the situation, Officer Bonazza instructed

Whiting to return home. Despite his instruction, Whiting remained outside, clamoring

for the crowd of neighbors to leave what she claimed was her property. Unable to diffuse

the situation, Officer Bonazza radioed Burgettstown police officer Amber Price for

backup and arrested Whiting for disorderly conduct. Thereafter, Officer Price arrived at

the scene and placed Whiting in handcuffs. Officer Bonazza transported Whiting back to

the police station. Ultimately, Whiting was found not guilty of the charge of disorderly

conduct.

In 2009, Whiting filed a complaint pursuant to 42 U.S.C. § 1983 against Officers

Bonazza and Price, Smith Township, Burgettstown Borough, and the local magistrate

judge who conduct Whiting’s video arraignment. Whiting raised, inter alia, claims of

false arrest and excessive force, alleging that Officers Bonazza and Price lacked probable

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cause to arrest her for disorderly conduct and that the officers injured her during the

arrest.

The District Court granted the defendants’ motion to dismiss Whiting’s complaint

but it offered Whiting leave to amend. Subsequently, the District Court dismissed on

immunity grounds Whiting’s claims against the magistrate judge. (See D. Ct. Doc. 49 at

21-23.) In May 2011, Whiting amended her complaint for a second time, adding the

police chiefs of Smith Township and Burgettstown as defendants. The District Court

dismissed the claims against the municipalities for failure to state a viable claim of

municipal liability and as to the police chiefs on statute-of-limitations grounds. (See D.

Ct. Doc. 102 at 5, 12-13.) Thereafter, Whiting and the two police officers filed cross

motions for summary judgment. The District Court entered summary judgment in favor

of Officers Bonazza and Price and denied Whiting’s motion for summary judgment.

Whiting timely appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over

the District Court’s entry of summary judgment in favor of Officers Bonazza and Price.

See Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Summary judgment is

proper when, viewing the evidence in the light most favorable to the nonmoving party

and drawing all inferences in favor of that party, no genuine issue of material fact exists.

See Fed. R. Civ. P. 56(c); Saldana, 260 F.3d at 231. We review de novo the District

Court’s earlier orders dismissing Whiting’s claims against the magistrate judge, the

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police chiefs, and the municipalities. See Gelman v. State Farm Mut. Auto. Ins. Co., 583

F.3d 187, 190 (3d Cir. 2009).

A. False Arrest Claim

Whiting challenges the District Court’s grant of summary judgment in favor of

Officers Bonazza and Price on her false-arrest claim. To prevail, Whiting needed to

show that Officers Bonazza and Price lacked probable cause to arrest her for disorderly

conduct. See Startzell v. City of Phila., 533 F.3d 183, 203-04 (3d Cir. 2008). Probable

cause to arrest exists when the information within the officer’s knowledge at the time of

the arrest would be enough to allow a reasonable law enforcement officer to believe that

an offense has been or is being committed by the person to be arrested. See United States

v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990). Under Pennsylvania law, a person is guilty

of disorderly conduct if, inter alia, she “with intent to cause public inconvenience,

annoyance or alarm, or recklessly creating a risk thereof . . . (1) engages in fighting or

threatening, or in violent or tumultuous behavior; [or] (2) makes unreasonable noise.” 18

Pa. Cons. Stat. Ann. § 5503.

Here, viewing the evidence in the light most favorable to Whiting, the record

indicates that Officer Bonazza had reason to believe at the time that Whiting was at least

recklessly creating a risk of public inconvenience by “engag[ing] in . . . tumultuous

behavior” or “mak[ing] unreasonable noise.” See id. Officer Bonazza arrived on the

scene shortly before 10:00 p.m. on a Monday night as Whiting was yelling at her

neighbors who, in turn, were yelling about the playground curfew. This behavior

continued even after Officer Bonazza’s arrival on the scene.

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 Whiting disputes the assertion that the events took place in “public.” She claims

that she owns the unoccupied adjacent property on which the argument took place and, as

such, could not have committed disorderly conduct. The defendants dispute her claim of

ownership. In any event, the answer to whether Whiting owns the vacant lot is not

dispositive. As the District Court noted, “public unruliness” is a sine qua non of

disorderly conduct. The statute defines “public” as “affecting or likely to affect persons

in a place to which the public or a substantial group has access; among the places

included are highways, transport facilities, schools, prisons, apartment houses, places of

business or amusement, any neighborhood, or any premises which are open to the

public.” 18 Pa. Cons. Stat. Ann. § 5503(c). Thus, even if some or all of the property

belonged to Whiting, Officer Bonazza had reason to believe, as discussed above, that her

conduct was affecting persons in a place to which the public has access, including her

neighborhood and, specifically, the playground across the street from the vacant lot.1

And even if Whiting did have a false-arrest claim, Officer Bonazza would

nevertheless be entitled to qualified immunity because a reasonable officer in his position

would not have understood that the arrest was unlawful. See Pearson v. Callahan, 555

1
In Groman v. Twp. of Manalapan, 47 F.3d 628, we did indeed find that under 18
Pa. Cons. Stat. Ann. § 5503, a person cannot commit the offense of disorderly conduct
inside her home. But our decision in Groman is not controlling here. Whiting was not
inside her home; she was outside. In Commw. v. Wertelet, we note, the Superior Court
found no disorderly conduct where the plaintiff had been unruly on her own property, but
it specifically noted that “she lives in a rural setting . . . [where] her actions could not
cause public inconvenience, annoyance or alarm . . .” 696 A.2d 206, 209 n.5 (Pa. Super.
1997). Whiting’s altercation, however, did not take place in a rural area. It took place in
the middle of her neighborhood and directly across the street from a public playground.

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U.S. 223, 232 (2009) (entitlement to qualified immunity depends on whether (1) the

plaintiff demonstrated the deprivation of a constitutional right; and (2) that right was

established at the time of the alleged deprivation); see also Anderson v. Creighton, 483

U.S. 635, 641 (1987) (noting that law enforcement “officials who act in ways they

reasonably believe to be lawful” should not be held personally liable because “it is

inevitable that [they] will in some cases reasonably but mistakenly conclude that probable

cause is present”). When Officer Bonazza arrived on the scene, he observed Whiting and

the neighbors arguing in a vacant lot next to Whiting’s house and directly across the

street from the playground. He could not have been expected in the heat of the moment

to ascertain the ownership of the vacant lot. See Paff v. Kaltenbach, 204 F.3d 425, 436

(3d Cir. 2000) (“While probable cause to arrest requires more than mere suspicion, the

law recognizes that probable cause determinations have to be made ‘on the spot’ under

pressure and do ‘not require the fine resolution of conflicting evidence [required at a

trial].’”) (quoting Gerstein v. Pugh, 420 U.S. 103, 121 (1975)); see also Anderson, 483

U.S. at 641. Thus, as to the false-arrest claim, the District Court’s grant of summary

judgment in favor of Officers Bonazza and Price was not error.2

2
Summary judgment was appropriate as to Officer Price because the uncontested
evidence demonstrates that Officer Bonazza told her that Whiting had caused a public
disturbance. This alone was sufficient for her to have believed probable cause existed.
See Groman, 47 F.3d at 635 n.10 (citing Baker v. McCollan, 443 U.S. 137, 143-44
(1979); see also Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997) (“[W]here a police
officer makes an arrest on the basis of oral statements by fellow officers, [that] officer
will be entitled to qualified immunity from liability in a civil rights suit for unlawful
arrest provided it was objectively reasonable for him to believe, on the basis of the
statements, that probable cause for the arrest existed.”)

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 B. Excessive Force Claim

Whiting also challenges the District Court’s grant of summary judgment as to her

excessive-force claim, alleging that Officers Bonazza and Price injured her when they

placed her in handcuffs, forced her into the backseat of the police car, and drove

recklessly to the police station. However, “[n]ot every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, is constitutionally unreasonable.”

Sharrar v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997). The degree of force that Officers

Bonazza and Price used to arrest and transport Whiting had to exceed that which was

reasonable. Groman, 47 F.3d at 633-34 (3d Cir. 1995). It did not.

The summary judgment record indicates that Whiting’s arrest was relatively

routine. Officer Price placed Whiting in handcuffs and, after a protracted period when

Whiting pleaded to be seated in the front of the police car due to her anxiety and panic

disorder, Officer Price pushed Whiting’s head down and placed her in the backseat. See,

e.g., Croom v. Balkwill, 645 F.3d 1240, 1252-53 (11th Cir. 2011) (no constitutional

violation where officer forced unarmed, physically weak, elderly woman to the ground

and held her there with a knee on her back for ten minutes because force was de minimis).

Whiting has alleged that the handcuffs were too tight, that she suffered knee injuries from

being placed in the backseat, and that she suffered a panic attack, but the record simply

does not reflect that she made Officers Bonazza or Price aware that she was injured or in

discomfort after being placed in the car. See, e.g., Alexander v. Cnty. of L.A., 64 F.3d

1315, 1323 (9th Cir. 1995) (finding excessive force where plaintiff repeatedly asked

officer to loosen handcuffs and officer refused); Palmer v. Sanderson, 9 F.3d 1433, 1436

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(9th Cir. 1993) (denying qualified immunity to officer who tightly handcuffed an elderly

man and refused to loosen the handcuffs). Consequently, the District Court properly

granted summary judgment in favor of Officers Bonazza and Price.

C. District Court’s Dismissal Orders

Finally, Whiting argues that the District Court erred in dismissing her claims

against the municipalities, the police chiefs, and the magistrate judge. Whiting claimed

that the magistrate judge falsified documents and denied her request for her son’s

assistance at a hearing. In its February 10, 2011 order, the District Court dismissed these

claims, finding the magistrate judge to be absolutely immune from § 1983 liability. Of

course, “[a] judge is absolutely immune from liability for his judicial acts even if his

exercise of authority is flawed by the commission of grave procedural errors.” Stump v.

Sparkman, 435 U.S. 349, 359 (1978); see also Gallas v. Supreme Court of Pa., 211 F.3d

760, 768 (3d Cir. 2000). And nothing in the record supports Whiting’s claim that the

magistrate judge falsified documents.

For substantially the reasons given by the District Court, it also properly dismissed

Whiting’s claims against the police chiefs, as the claims were barred by the statute of

limitations. Whiting had to file her claims against them within two years from the time

when she “knew or should have known of the injury upon which [the] action is based.”

Sameric Corp. of Del. v. Phila., 142 F.3d 582, 599 (3d Cir. 1998); see also 42 Pa. Cons.

Stat. Ann. § 5524; Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989). The

claims against the police chiefs accrued in June 2008, when Whiting was arrested for

disorderly conduct. But rather than naming the police chiefs as defendants in the original

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complaint, she waited until filing her second amended complaint in May 2011—almost a

year too late.3

To the extent that Whiting did not make out her claims of unlawful arrest and

excessive force, her claims against the municipalities were necessarily deficient. Whiting

named Smith Township and Burgettstown Borough as defendants for the acts of its

officers—Officers Bonazza and Price. But municipal liability under § 1983 arises only

when a constitutional deprivation results from an official custom or policy. Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Here, as discussed above, Whiting

suffered no constitutional injury. See Williams v. Borough of West Chester, Pa., 891

F.2d 458, 467 (3d Cir. 1989) (“If a person has suffered no constitutional injury at the

hands of [any] individual police office, the fact that the departmental regulations might

have authorized [unconstitutional action] is quite beside the point.”) (quoting City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986). Therefore, the District Court properly

dismissed Whiting’s claims against Smith Township and Burgettstown Borough.

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

3
Nor did the claims relate back to the date of her original complaint. See Fed. R.
Civ. P. 15(c)(1). Nothing in the record indicates that the police chiefs received notice
within 120 days of the filing of the original complaint, or that they had imputed notice of
Whiting’s law suit before December 21, 2009 (120 days after the complaint was filed).
See Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 194 (3d Cir. 2001) (explaining that
notice may be imputed if the party to be added shares an attorney with the named party or
the two share an identify of interest); see also Garvin v. City of Phila., 354 F.3d 215, 223
(3d Cir. 2003) (under the “shared attorney” method of imputing notice, “the applicable
test is not whether the new defendants will be represented by the same attorney, but rather
whether the new defendants are being represented by the same attorney”).

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