ALD-300 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA STATE POLICE;
CPL. JAMES BURGER, Pennsylvania State Trooper; TIMOTHY MORANDO,
Pennsylvania State Trooper; BERNARD NOVAK, Pennsylvania State Trooper;
SGT. GARY THOMPSON, Pennsylvania State Trooper.
On Appeal from the United States District Court for the Western District of Pennsylvania
(D.C. Civil No. 08-cv-00627)
District Judge: Honorable David Stewart Cercone
Submitted for Possible Dismissal Pursuant to 28 U.S.C. ' 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 30, 2010
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed October 19, 2010 )
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Thomas D. Crock appeals from an order of the District Court granting summary
judgment in favor of the defendants in this pro se civil rights action. For the reasons that
follow, we will summarily affirm.
In September 2005,1 an officer responded to a burglar alarm at Crock=s mother=s
house. After arriving on the scene, the officer observed that the basement window of the
house appeared to have been pried open. The front door was open, and there were several
items on the porch. The officer observed Crock in the house going through papers. Crock
was alone in the house, and after being approached by the officer, admitted that he did not
know how to turn off the alarm.
The officer asked Crock to exit the house. Crock became confrontational and was
placed under arrest. While the officer escorted Crock to the car, Crock attempted to head
butt the officer. Crock was physically restrained, placed in the police car, and transported to
police headquarters. His mother went to headquarters and told the officers that he had
permission to remove items from her house. As a result, Crock was only charged with
disorderly conduct, to which he pleaded nolo contendere.
The next day, Crock returned to police headquarters alone to file a complaint against
We take the factual background from the defendants= AStatement of Undisputed
Facts@ because, although Crock disputes these statements, his responses are entirely
inadequate, as shown below.
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the arresting officers. The sergeant taking the statement ran Crock=s driver=s license and
learned that it had been suspended. Crock was then issued a citation for driving with a
Crock brought an action alleging violations of 42 U.S.C. ' 1983 and state law in
Pennsylvania state court, making several claims arising out of his arrest and traffic citation.
First, he alleged that the arresting officers used excessive force and subjected him to false
arrest, and that he was the subject of malicious prosecution. Second, he alleged that officers
prevented him from attending his preliminary hearing. Third, he alleged that he was the
subject of an illegal seizure as a result of the sergeant running his license. On the defendants=
motion, the case was removed to federal court.
The defendants moved for summary judgment on all counts. Crock responded by
filing a copy of the defendants= AStatement of Undisputed Facts,@ on which he wrote ADispt.,@
AI/R,@ or A??@ next to several of the paragraphs. He also alleged that the defendants=
affidavits were Aknowing, willful lies [and] misrepresentations.@ However, he offered no
factual basis by which he could dispute the defendants= contentions.
The District Court granted summary judgment to the defendants on all counts. Crock
filed a timely notice of appeal. We have jurisdiction to hear this appeal. 28 U.S.C. ïŸ 1291.
Summary judgment is proper, and the moving party is entitled to judgment as a matter of law,
where, 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. Fed. R. Civ. P.
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56(c); Kaucher v. County of Bucks, 455 F.3d 418
, 422-23 (3d Cir. 2006). We exercise
plenary review over the District Court=s order granting summary judgment. Camp v.
Brennan, 219 F.3d 279
, 280 (3d Cir. 2000). We may summarily affirm a decision of the
District Court if the appeal does not raise a substantial issue. L.A.R. 27.4; I.O.P. 10.6. In
addition, we may affirm on any basis in the record. Fairview Twp. v. EPA, 773 F.2d 517
524 n.15 (3d Cir. 1985).
A party making a ' 1983 claim must show that he or she has been denied a federal
right and that the action occurred under color of state law. Burella v. City of Philadelphia,
501 F.3d 134
, 139 (3d Cir. 2007). Crock cannot establish that the defendants denied him any
Crock argues that he was the subject of a false arrest because the officers did not have
probable cause to arrest him. AProbable cause exists if there is a >fair probability= that the
person committed the crime at issue.@ Wilson v. Russo, 212 F.3d 781
, 789 (3d Cir. 2000).
Generally, Athe question of probable cause in a section 1983 damage suit is one for the jury.@
Montgomery v. De Simone, 159 F.3d 120
, 124 (3d Cir.1998). However, Awhere no genuine
issue as to any material fact exists and where credibility conflicts are absent, summary
judgment may be appropriate.@ Deary v. Three Un-Named Police Officers, 746 F.2d 185
192 (3d Cir. 1984).
Upon our review of the record, we agree with the District Court that the officer had
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probable cause to arrest Crock. As the District Court noted, the officer responded to a
burglar alarm and observed a window that appeared to have been pried open, property on the
porch, and Crock going through papers in the house. Crock also admitted that the house was
not his and that he did not have the code for the alarm. In light of these facts, there was
probable cause to believe that Crock was committing a crime.
Crock next argues that the arresting officer used excessive force. Crock does not,
however, offer any support for this claim besides the bald allegations made in the complaint.
He does not offer any evidence to show that he was injured in any way. Moreover, he
attempted to head butt the officer on the way to the police car. We agree with the District
Court that the record contains no basis to support this claim.
The District Court also correctly entered summary judgment against Crock on his
malicious-prosecution and deprivation-of-a-preliminary-hearing claims. One necessary
element of a malicious-prosecution claim is success in the underlying criminal proceeding.
Johnson v. Knorr, 477 F.3d 75
, 81-82 (3d Cir. 2007). Since Crock pleaded nolo contendere
to disorderly conduct, he cannot now claim that he was maliciously prosecuted. Crock=s
claim that officers physically prevented him from attending his preliminary hearing is wholly
lacking in support in the record.
Although the District Court did not address Crock=s Fourth Amendment claim that he
was the subject of a Ade facto traffic stop,@ we conclude that no genuine issue of material fact
exists. In order for a seizure to occur for purposes of the Fourth Amendment, there must be
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Aeither the application of physical force [. . .] or a submission to the assertion of authority.@
California v. Hodari D., 499 U.S. 621
, 626 (1991) (emphasis removed). Here, neither of
those conditions is met. The sergeant asked Crock for identification when he filed his
complaint, saw that Crock had driven to the headquarters, and then ran his license. There
was no attempt to restrain Crock=s liberty. Thus, Crock=s claim is without merit.
Finally, the District Court granted summary judgment on Crock=s state-law claims of
assault and intentional infliction of emotional distress in relation to his arrest. This was
proper, as Crock offered no evidence to sustain either claim. He did not show that the officer
had the intent required to sustain a cause of action for assault. In addition, he did not show
that the officer acted outrageously, as is required for an intentional-infliction-of-emotional-
distress claim. We note that the conduct complained of occurred during the course of a
lawful arrest. Thus, summary judgment was appropriate for both of Crock=s state-law claims.
Accordingly, we conclude that this appeal presents no substantial question, and we
will summarily affirm the judgment of the District Court.
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