Robert D. Brown v. RINEHART, Wilmington Police Officer

CLD-161 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4124
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ROBERT D. BROWN,
Appellant
v.
RINEHART, Wilmington Police Officer;
DRYSDALE, Wilmington Police Officer
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 07-cv-00023)
District Judge: Honorable Sue L. Robinson
____________________________________
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
April 16, 2009
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed: April 30, 2009 )
_________
OPINION
_________
PER CURIAM
Robert Brown, a pro se litigant, appeals from an order by the District Court
granting defendants’ motion for summary judgment. For substantially the same reasons

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provided by the District Court, we will summarily affirm.
In January 2007, Brown filed a complaint pursuant to 42 U.S.C. § 1983 alleging
that defendants had violated his due process and Eighth Amendment rights. Brown
alleged that on April 16, 2006, defendants approached Brown while he was in front of his
house, dragged him off his porch, and used unnecessary force to remove him from his
property, including slamming his head onto the concrete and pepper spraying him. Brown
was charged with resisting arrest and disorderly conduct, but these charges were later
dismissed. He sought compensatory and punitive damages as relief.
In their motion for summary judgment, defendants provided affidavits and police
crime reports as factual support for their counter-allegations. According to the
defendants, on April 16, 2006, defendant Rinehart, along with Officer Hazzard, were on
routine patrol when they observed Brown sitting with a group of individuals on the porch
and steps of 1627 West 3rd Street in Wilmington at 5:20 a.m. As the officers drove past
in their patrol car, Brown started yelling at the officers, who advised him to “calm down”
and “relax.” However, Brown continued to yell at the officers and use profanities,
prompting neighbors to look out their windows. When the officers’ verbal attempts to
control the situation failed, they exited their vehicle to place Brown under arrest for
disorderly conduct. As Officer Hazzard reached the porch, Brown attempted to run into
the house. Officer Hazzard grabbed Brown’s jacket and told him to place his hands
behind his back because he was under arrest. Brown resisted Officer Hazzard by pulling

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away and laying on his hands to avoid being handcuffed. The officers advised him to
stop resisting or he would be pepper sprayed. Brown continued to struggle, and Officer
Hazzard sprayed him. Although the pepper spray resulted in Brown releasing his left
hand, the officers could not gain control of Brown’s other hand. At that point, Officer
Hazzard used the heel/palm of his hand to deliver a “stun blow” to the left side of
Brown’s head. Defendant Rinehart used his right knee to deliver a “stun blow” to
Brown’s right thigh. Brown stopped resisting; the officers gained control and placed him
in handcuffs.
Brown was then taken to the emergency room and treated for an abrasion to his
head and his eyes were flushed with water. Officer Hazzard contacted his immediate
supervisor, Sergeant Drysdale, who met the officers at the hospital room. Defendant
Drysdale attempted to interview Brown, but Brown was again uncooperative. Drysdale
noted that Brown was intoxicated, which Brown confirmed. In addition to speaking to
Brown, Drysdale interviewed a witness as part of his investigation of the non-lethal force
used by the officers in Brown’s arrest. Drysdale then compiled the details of his
investigation in a Defensive Tactics Report per departmental policy.
Defendants argued in their motion for summary judgment in that Brown cannot
maintain a § 1983 claim against defendant Drysdale because he had no personal
involvement in Brown’s arrest. Defendants also argued that defendant Rinehart was
entitled to qualified immunity.

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Brown provided no specific factual evidence to dispute defendants’ assertions.
Rather, his pleadings rely on the fact that the details set forth in the police crime report
conflicted with the Defensive Tactics Report. According to Brown, these inconsistencies
corroborated his argument that his rights were violated. For example, Brown pointed to
the fact that one report stated that he was tackled whereas the other stated he was grabbed
by his coat. Brown also alleges that when his defense attorney requested discovery from
the state, the state initially refused to provide any documents, but when they eventually
did, the charges against Brown were dismissed. Thus, Brown states that the “assault
occurred with an intent to maliciously and sadistically cause harm outside the scope
intended to enforce and/or gain controll Brown moves” [sic].
The District Court granted defendants’ motion for summary judgment. The court
determined that Brown’s § 1983 action against Drysdale could not stand based on his
supervisory position. Moreover, it was undisputed that Drysdale was not present at the
time Brown was arrested and had no personal involvement in the arrest. The court also
agreed that Rinehart was entitled to qualified immunity because the physical force he
used was reasonable and did not rise to a constitutional violation. Accordingly, the
District Court denied Brown’s motion for summary judgment and other motions as moot.
Brown timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. Because Brown is proceeding in
forma pauperis, we must dismiss the appeal under 28 U.S.C. § 1915 (e)(2)(B) if it is

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legally frivolous. We may summarily affirm if Brown’s appeal presents no substantial
question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
We exercise plenary review over a district court’s grant of summary judgment.
See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006). The District Court’s
grant of summary judgment will be affirmed if the record demonstrates that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). An issue is material if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Summary judgment was properly entered in favor of defendant Drysdale. To
succeed on a § 1983 claim, a plaintiff must show that the defendant, acting under color of
state law, deprived him of a federal right. West v. Atkins, 487 U.S. 42, 48 (1988). In
addition, “[a] defendant in a civil rights action must have personal involvement in the
alleged wrongs; liability cannot be predicated solely on the operation of respondeat
superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Although Brown
contends that Drysdale wrote and signed off on the police reports documenting the arrest,
he uses this fact to merely show that Drysdale approved reports that were inconsistent
with each other. He cites no evidence of Drysdale’s personal involvement through
participation, knowledge, or acquiescence. Id.
Summary judgment was also properly entered in favor of defendant Rinehart on

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As the District Court notes, although Brown argues that his rights were violated1
under the Eighth Amendment, excessive force claims arising out of an arrest are analyzed
under the Fourth Amendment. Graham v. Connor, 490 U.S. 386 (1989). The Eighth
Amendment serves as the primary source of protection against excessive force for claims
that arise after conviction. Id. at 395 n.10 (citing Whitley v. Albers, 475 U.S. 312, 327
(1986). Although Brown is currently incarcerated, his claim arises out of the incident
involving his arrest and therefore, we analyze his claim under the reasonableness test set
forth in Graham.
The Supreme Court recently determined that the two-step inquiry set forth in Saucier2
is often appropriate, but should no longer be regarded as mandatory. Pearson v. Callahan,
129 S. Ct. 808, 818 (Jan. 21, 2009). Lower courts now have the discretion to decide
which of the two Saucier prongs to address first. Pearson makes no difference to the
outcome of this appeal.
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the basis of qualified immunity because Brown does not set forth any evidence to show
that Rinehart committed a constitutional violation. The District Court applied the1
standard set forth in Saucier v. Katz, 533 U.S. 194, 201 (2001): whether the facts alleged
show that Rinehart violated a constitutional or statutory right, and if so, whether the
constitutional or statutory right was clearly established at the time the violation occurred.
Saucier, 533 U.S. at 200-01.2
In evaluating whether Brown’s rights were violated by Rinehart’s use of force, the
inquiry is whether Rinehart’s actions were “‘objectively reasonable’ in light of the facts
and circumstances confronting [him], without regard to [his] underlying intent or
motivations.’” Graham v. Connor, 490 U.S. 386, 397 (1989). The proper application of
the “reasonableness” test “requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he is actively

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resisting arrest or attempting to evade arrest by flight.” Id. at 396. Other relevant factors
include “the possibility that the persons subject to the police action are themselves violent
or dangerous, the duration of the action, whether the action takes place in the context of
effecting an arrest, [and] the possibility that the suspect may be armed.” Sharrar v.
Felsing, 128 F.3d 810, 822 (3d Cir. 1997).
According to Rinehart’s unopposed affidavit, Rinehart’s actions in Brown’s arrest
were limited: he tried to control Brown verbally before approaching him on the porch,
ordered Brown to stop resisting, gained control of Brown’s left hand, and used his right
knee to deliver a “stun blow” to Brown’s right thigh. Rinehart did not use the pepper
spray on Brown nor cause the injury to his head for which Brown was later treated at the
hospital. Rinehart resorted to force only after Brown continued to resist verbal warnings
and lay on his hands to prevent being handcuffed or otherwise controlled during his
arrest. The degree of physical force applied by Rinehart was reasonable because it was
proportional to the need for force, especially in light of Brown’s active resistence to
arrest. Graham, 490 U.S. at 396.
Brown does not materially dispute that these actions occurred as Rinehart
describes them or offer any other evidence to show that Rinehart’s actions were
objectively unreasonable. Brown’s reliance on minor factual inconsistencies, such as
whether he was “tackled” or whether an officer “grabbed his coat,” does not provide any
genuine issue of material fact necessary for precluding summary judgment. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (U.S. 1986). Accordingly, summary judgment in
favor of the defendants was proper.
As Brown’s appeal presents no substantial question, we summarily affirm the
District Court judgment. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.

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