Marci J. Bittner v. Snyder County, Pennsylvania

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1395
_____________
MARCI J. BITTNER,
Appellant
v.
SNYDER COUNTY, PENNSYLVANIA; MICHAEL SHOLLEY
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 4-08-cv-00707
District Judge: The Honorable John E. Jones, III
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 16, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges
(Filed: September 23, 2009)
OPINION
SMITH, Circuit Judge.
Marci J. Bittner appeals from the order of the United States District Court for the
Middle District of Pennsylvania granting the motion to dismiss filed by Snyder County

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The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, and 1343.1
Appellate jurisdiction exists under 28 U.S.C. § 1291. We exercise plenary review over an
order granting a motion to dismiss. In order to “survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. __,129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 556 (2007)).
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and Michael Sholley, the District Attorney of Snyder County. For the reasons set forth1
below, we will affirm.
In April of 2007, Patrolman Chad Thomas of the Middleburg Borough Police
Department hand-delivered a subpoena to Bittner, commanding her to appear and testify
beginning May 29, 2007, at the criminal trial of her ex-husband. Thereafter, Bittner
contacted District Attorney Sholley’s office to advise him of her need for transportation
and child care. District Attorney Sholley’s office informed her that transportation and
child care would be provided. Transportation was not provided, however, and Bittner
failed to appear as commanded by the subpoena. As a result, a bench warrant was issued
for Bittner’s arrest on May 29, 2007.
The following day, Patrolman Thomas arrested Bittner at her residence pursuant to
the bench warrant, placed her in handcuffs, and transported her to the Snyder County
Courthouse. After Bittner informed District Attorney Sholley that his staff had advised
her that transportation would be provided, a petition was filed with the Prothonotary to
withdraw the bench warrant. Within minutes, the Court of Common Pleas issued an order
vacating the bench warrant. Bittner was transported to a relative’s home twenty miles

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away, rather than being returned to her own home, which was eighty-seven miles from the
courthouse.
Thereafter, Bittner filed a complaint in the United States District Court for the
Middle District of Pennsylvania against Snyder County and District Attorney Sholley in
his official capacity. She alleged that Snyder County, acting through District Attorney
Sholley, violated her Fourth, Fifth, and Fourteenth Amendment rights. She claimed that
she had been deprived of the compensation a witness is entitled to under Pennsylvania
law and that District Attorney Sholley breached his promise to provide her with
transportation and child care in violation of her rights under the Fourth, Fifth and
Fourteenth Amendments. Her Fourth Amendment rights were violated, according to
Bittner, when she was arrested without probable cause and excessive force was used in
handcuffing her. She also averred that the failure to provide her with a hearing both
before the bench warrant was issued and following her arrest constituted a violation of
her right to due process. In addition, she averred that District Attorney Sholley’s failure
to provide her with transportation and child care, as promised, constituted a violation of a
special duty that was breached when she was not returned to her own home. Snyder
County and District Attorney Sholley filed a 12(b)(6) motion to dismiss.
The District Court granted the motion to dismiss. It noted that Bittner had
represented that her Complaint did not assert any state law claims, that she had not sued
District Attorney Sholley in his individual capacity, and that she was asserting claims
against him in only his official capacity. Nonetheless, the District Court analyzed

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Bittner’s claims as if she had sued District Attorney Sholley in his individual capacity.
Bittner’s claims based on the events that occurred pre-arrest failed as a matter of law,
according to the District Court, because Bittner had not alleged a constitutional violation.
The claims arising from Bittner’s arrest were dismissed because of District Attorney
Sholley’s absolute prosecutorial immunity. The District Court dismissed Bittner’s claims
based on the post-arrest conduct on the ground that District Attorney Sholley had
qualified immunity.
The claims against the County alleged liability on the basis that the County, acting
through District Attorney Sholley, either established and followed a policy or custom that
deprived Bittner of her constitutional rights, or it failed to train and supervise its
employees, thereby resulting in a violation of her constitutional rights. The Court
explained that because the claims against Sholley could not be maintained, the claims
against the County were also deficient.
Bittner filed a timely appeal. She reiterates that Sholley was sued solely in his
official capacity as a policy maker for Snyder County and that the District Court erred by
failing to properly evaluate her municipal liability claim. According to Bittner, the
District Court “implicitly decided . . . that the District Attorney was acting as an agent for
the Commonwealth, pursuing his prosecutorial functions, and was therefore immune
under the Eleventh Amendment.”
We appreciate Bittner’s argument. It does appear that the District Court failed to
independently analyze her municipal liability claims. See Carswell v. Borough of

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We decline to address Bittner’s contention that the District Court implicitly2
decided that her claims were barred by the Eleventh Amendment inasmuch as the District
Court does not mention it. We may affirm, however, on any basis supported by the
record. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc); see also Helvering
v. Gowran, 302 U.S. 238, 245 (1937) (“In the review of judicial proceedings the rule is
settled that, if the decision below is correct, it must be affirmed, although the lower court
relied upon a wrong ground or gave a wrong reason.”).
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Homestead, 381 F.3d 235, 244 (3d Cir. 2004). The Supreme Court has explained that
municipal liability under § 1983 may attach even though the individual may be protected
by an immunity. Owen v. City of Independence, 445 U.S. 622, 638 (1980); Collins v. City
of Harker Heights, 503 U.S. 115, 122 (1992). In this case, the claim against District
Attorney Sholley in his official capacity is a claim against the municipal entity. Kentucky
v. Graham, 473 U.S. 159, 166 (1985). It is well settled that before a municipality may be
found liable under § 1983, there must be a constitutional violation. See Monell v. New
York City Dept. of Social Services, 436 U.S. 658, 694 (1978). The problem is that
Bittner’s complaint fails to allege that she was deprived of her constitutional rights.2
We agree with the District Court that Bittner’s pre-arrest claims fail to allege a
constitutional violation. Because Bittner was present in the courthouse pursuant to a
bench warrant, and not in response to the subpoena, she had no right to receive witness
compensation and mileage under Pennsylvania’s statutory law. Accordingly, there is no
ground for a due process claim based on a deprivation of property. Nor is there any
constitutional right to transportation and the child care she was allegedly promised by the
District Attorney’s office.
The claims arising from Bittner’s arrest also fail. “The simple fact of

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In addition to alleging a violation of her Fourth Amendment right not to be3
arrested without probable cause, Bittner also alleged that she was subjected to excessive
force in being handcuffed. On appeal, Bittner submits, not that excessive force was used,
but that her rights were violated because she was handcuffed even though she was not a
criminal defendant. Viewed in this light, her claim is simply another way of alleging that
she was arrested without probable cause. That claim, however, fails as a matter of law
since Patrolman Thomas properly arrested Bittner under the bench warrant.
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nonappearance provided the government with probable cause to apply for a bench
warrant[.]” In re Grand Jury Proceedings, 658 F.2d 211, 214 (3d Cir. 1981); see also
Luckes v. County of Hennepin, Minnesota, 415 F.3d 936, 939 (8th Cir. 2005).3
Bittner also claims that she was deprived of her due process rights because she was
not afforded a hearing prior to the issuance of the bench warrant or following her arrest.
Neither this court nor the Supreme Court has held that there is a right to be heard before
the issuance of a warrant. With respect to her claim that she was deprived of her right to
a hearing post-arrest, we fail to see a violation of that right inasmuch as the arrest warrant
was vacated before a hearing could be conducted.
Finally, we agree with the District Court that Bittner’s state created danger claim,
which presumes there was a special duty to provide her with transportation to her home
once she was arrested, fails as a matter of law. Her averments, even accepted as true, do
not plausibly suggest the elements of a viable state created danger claim. See Bright v.
Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006). Accordingly, that claim does
not survive the County’s 12(b)(6) motion. Iqbal, 129 S.Ct. at 1949.
In sum, we will affirm the judgment of the District Court. A necessary predicate
for a § 1983 municipal liability claim is a constitutional violation. The complaint,

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however, did not provide sufficient factual matter to establish a reasonable inference that
Bittner’s constitutional rights had been violated. Accordingly, her complaint was
properly dismissed. Id.

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