Cecil Brookins v. County of Allegheny

ALD-013 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
NO. 09-2453
___________
CECIL BROOKINS,
Appellant
v.
COUNTY OF ALLEGHENY; JIM RODDEY, Chief County Executive Officer, Allegheny
County; CITY OF PITTSBURGH; TOM MURPHY, Mayor of the City of Pittsburgh,
Pennsylvania; PETE DEFAZIO, Sheriff of Allegheny County, Pennsylvania; CALVIN
LIGHTFOOT, Warden of Allegheny County Jail; DR. BRUCE DIXON, Medical Director of
Allegheny County Jail; MARCIA KING, Nurse at Allegheny County Jail; D. KNOX, Nurse at
Allegheny County Jail; JANE DOE 3, Nurse at Allegheny County Jail; JOHN DOE (4), in his
Official capacity as a nurse for the Allegheny County Prison/Jail also in his individual and
personal capacities; JANE DOE #5, Guard at Allegheny County Jail; JOHN DOE #6, Guard at
Allegheny County Jail; UMPC PRESBYTERIAN HOSPITAL; MARGARET HSIEH, in her
Official capacity as a Doctor for the UPMC Presbyterian Hospital, also in her individual and
personal capacities; JANE DOE (8) in her Official capacity as a Doctor for the UPMC
Presbyterian Hospital, also in her individual and personal capacities; BRIAN HARBRECHT,
Doctor at UPMC Hospital; MICHAEL B.HOROWITZ, in his Official capacity as a Doctor for
the UPMC Presbyterian Hospital, also in his individual and personal capacities; RICHARD
TOWNSEND, Doctor at UPMC Hospital; ROBERT MCNEILLY, Chief of Police, Pittsburgh
Police Department; DOMINIC COSTA, Commander, Negotiator Zone Six Police Station;
TALIB KEVIN GHAFOOR, in his Official capacity as negotiator/Cmdr, police officer for the
City of Pittsburgh, also in his individual and personal capacities; FAQUAR HOLLAND,
Detective, City of Pittsburgh Police; PATRICK KNEPP, City of Pittsburgh Police Officer, Swat
Officer; THOMAS HUERBIN, City of Pittsburgh Police Officer, Swat Officer; RONALD
GRIFFIN, Sgt. Negotiating, City of Pittsburgh Police Officer; ANDREW TICE, City of
Pittsburgh Police Officer; KEVIN WILKES, City of Pittsburgh Police Officer; JOHN SERAK,
City of Pittsburgh Police Officer, Swat Officer; STEVE MESCAN, City of Pittsburgh Police
Officer, Swat Officer; CHRIS SIMS, City of Pittsburgh Police Officer, Swat Officer; CMDR;
NATHAN HARPER, Commander In Charge of Barricade situation, police officer of the City of
Pittsburgh; RASHALL BRACKNEY-GRIFFIN, in her Official capacity as a Cmdr Tactical,
Police Officer for the City of Pittsburgh, in charge of the swat at the incident/shooting/crime
scene, also in her individual and personal capacities; DISTRICT ATTORNEY STEPHEN A.
ZAPPALA, in charge of supervising the crime scene and incident investigation; WILLIAM
MULLEN, JR., in his Official Capacity as a Deputy Chief of police, police officer for the City of

-- 1 of 7 --

2
Pittsburgh, supervising and conducting a crime scene and shooting incident investigation, also in
his individual and personal capacities; STEVEN HITCHINGS, Police Officer ,City of Pittsburgh;
JOSEPH NOVAKOWSKI, Police Officer, City of Pittsburgh; LEO O'NEIL, Investigating
Officer,City of Pittsburgh; LUKE RAVENSTAHL, in his Official and Administrative capacity as
Mayor of the City of Pittsburgh and in his individual and personal capacity; RAMON RUSTIN,
Warden of Allegheny County Jail
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 04-cv-00035)
District Judge: Kim R. Gibson
_______________________________________
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
October 16, 2009
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Filed: October 26, 2009)
_________
OPINION
_________
PER CURIAM
Cecil Brookins appeals pro se from the District Court’s entry of summary
judgment in favor of defendants. Because we conclude that this appeal presents no
substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Brookins filed an application to proceed in forma pauperis and a complaint

-- 2 of 7 --

3
pursuant to 42 U.S.C. § 1983 seeking damages against defendants, wherein he claimed
that officers of the Pittsburgh Police Department used excessive force while taking him
into custody on an arrest warrant. He asserts that the officers wanted to kill him because
he refused to help certain corrupt police officers participate in drug trafficking. He also
claims that defendants falsified the arrest warrant, implemented a custom and policy of
using excessive force, denied him medical care, conspired to defraud the United States,
conspired to prevent the truth from being presented at his trial, and committed other acts
of fraud and deceit.
In February 2002, Brookins engaged in a standoff with the Pittsburgh Police
Department. One officer, defendant Costa, was in a room alone with Brookins, trying to
convince him to surrender to police on an arrest warrant. While Brookins and Costa were
speaking, Brookins noticed SWAT team members outside and became panicked or angry.
When the SWAT team entered the room, Brookins began shooting, striking Costa and
defendant Huerbin, and missing defendant Knepp. Knepp fired at Brookins eight times,
striking him five times. Knepp stopped shooting when Brookins dropped his weapon. A
jury convicted Brookins of three counts of attempted homicide. Brookins later filed this
action.
After Brookins had amended his complaint, the Magistrate Judge issued his first
Report and Recommendation, recommending dismissal of all claims other than the
excessive use of force claim. Defendants filed a motion for summary judgment. In his

-- 3 of 7 --

4
second Report and Recommendation, the Magistrate Judge recommended that the
defendants’ motion for summary judgment be granted. In March 2009, over Brookins’
objections, the District Court adopted both Reports and Recommendations in full, denied
Brookins’ motions that sought injunctive relief and an extension of time, and granted the
defendants’ motion for summary judgment. Brookins timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. See Torres
v. Fauver, 292 F.3d 141, 145 (3d Cir. 2002); Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000).
III.
The District Court dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B) all
claims but Brookins’ excessive force claim. The District Court noted that Brookins
complains repetitively, and at length, that a combination of governmental, law
enforcement, legal, and medical personnel have conspired against him. However, as the
District Court found, Brookins fails to plead “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
court may discredit allegations that are “fanciful, fantastic, and delusional” and thus may
dismiss a complaint as factually frivolous when the facts alleged “rise to the level of the
irrational or wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992) (citations

-- 4 of 7 --

5
omitted). After careful review of both amended complaints, we conclude that Brookins’
claims, other than his excessive force claim, were properly dismissed under § 1915(e).
IV.
To succeed on a § 1983 claim, a plaintiff must show that the defendant, acting
under of color of state law, deprived him of a federal right. West v. Atkins, 487 U.S. 42,
48 (1988). In evaluating whether a plaintiff’s rights were violated by an arresting
officer’s use of force, a court must determine whether the officer’s actions in gaining
custody of the plaintiff were “reasonable.” See Scott v. Harris, 550 U.S. 372, 381 (2007);
Graham v. Connor, 490 U.S. 386, 397 (1989). Factors to be considered include the
severity of the crime, whether the suspect posed an immediate threat to public safety, and
whether the suspect was actively resisting or evading arrest. See Graham, 490 U.S. at
396; Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004).
The District Court’s entry of summary judgment in favor of defendants was proper
because there was no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). To
overcome the defendants’ argument that summary judgment was warranted, Brookins had
to “set forth specific facts” and present more than a “mere existence of a scintilla of
evidence” in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Brookins’ argument that he was a blameless, unarmed victim is not borne out by the
record, which shows that he was armed and that he shot first. Additionally, despite
Brookins’ claim that he was shot sixteen times–or fourteen times, as he argued at trial–the

-- 5 of 7 --

6
trial record indicates that he was shot five times. Knepp’s testimony that he fired his
weapon eight times before Brookins dropped his gun was uncontested. That the jury
found Brookins guilty of three counts of attempted murder shows that it rejected a
justification defense and establishes that Brookins was armed and shot the defendants.
On this record, Brookins cannot show that the officers’ use of force was excessive.
Accordingly, summary judgment was properly entered in favor of defendants.
V.
Brookins also filed a writ of mandamus to compel officials at SCI-Houtzdale to
provide him with more frequent access to the prison law library. He avers that the four-
to-six hours a week afforded to him is insufficient, and effectively denies him access to
the courts. The District Court properly treated Brookins’ motion as one seeking
injunctive relief. There is no indication in the record that the deficiencies in this case
could have been remedied had Brookins been afforded more time in the prison law
library. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (to show a denial of access
to the courts, a prisoner must demonstrate that the underlying claim was “arguable” and
“nonfrivolous,” describe the official acts impeding the litigation, and identify a remedy
that could not otherwise be obtained).
Finally, the District Court properly denied Brookins motion for an extension of
time, after concluding that, given the clarity of the course of events surrounding
Brookins’ arrest and shooting, and after seven years of litigation, no conceivable reason

-- 6 of 7 --

for an extension existed.
VI.
For the foregoing reasons, we conclude that the appeal presents no substantial
question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d
Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
7.

-- 7 of 7 --