NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 24-3073 __________
AUGUST B. KREIS, IV, Appellant
v.
JAMES ALERCIA; PATRICK A. CLINESE, PPD Badge #2733; JOHN GILLEN; EVAN GOLDSTEIN, PPD Badge #2703; KENNETH MCPHERSON; PALMER TOWNSHIP ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5:21-cv-03321) District Judge: Honorable Cynthia M. Rufe ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) August 11, 2025
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges
(Opinion filed: August 25, 2025) ___________
OPINION* ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
August Kreis, IV, appeals pro se from the District Court’s order granting the
appellees’ motion for summary judgment. We will affirm in part, vacate in part, and
remand for further proceedings.
I.
On November 8, 2020, Kreis’ sister found a gun under his bed, brought it to the
Palmer Township Police Department, and reported to Officer Evan Goldstein that Kreis’
possession of the gun was illegal based on his criminal history. Kreis’ stepfather also
gave a statement about an incident that occurred a few months before in which Kreis
assaulted him and threatened him with the same gun. Based on Kreis’ criminal history
and the statements from Kreis’ family members, Goldstein immediately sought and
obtained a warrant for Kreis’ arrest, charging him with unlawful possession of a firearm
by a convicted felon, as well as search warrants for his house and car.
Later that night, nine police officers were dispatched to Kreis’ address to execute
the warrants. Officer John Gillen spoke on the phone with Kreis, who agreed to come
outside. He then walked through the front door toward Officers Gillen and Kenneth
McPherson. At some point, Kreis turned away from the officers. They immediately
attempted to gain physical control of Kreis, which caused all three men to fall to the
ground. McPherson tased Kreis. Kreis, who has epilepsy, began seizing. At this point,
Officer Patrick Clinese approached and, seeing Kreis reach for McPherson’s service
2 weapon while struggling with McPherson and Gillen on the ground, also deployed his
taser on Kreis. When Kreis stopped seizing and came to, Officer James Alercia was
pointing an assault rifle at his head. Kreis was then handcuffed, placed in custody, and
taken to the hospital. He suffered several bruises, including one on the front of his head,
injuries from the taser barbs, dizziness lasting several days, and headaches lasting three
weeks. Kreis was additionally charged with and later pleaded guilty to resisting arrest and
disarming a law enforcement officer, as well as various crimes related to the earlier
incident with his stepfather.
In July 2021, Kreis filed a complaint pursuant to 42 U.S.C. § 1983, which he later
amended, alleging violations of his Fourth and Fourteenth Amendment rights. The
District Court ultimately dismissed most of Kreis’ claims but allowed his excessive force
claims against defendants McPherson, Gillen, Clinese, and Alercia to move forward.
These remaining defendants filed a motion for summary judgment, which the District
Court granted, explaining that the officers’ actions in effecting Kreis’ arrest were
objectively reasonable under the circumstances. Kreis timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We construe Kreis’ filings liberally,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but we do not consider
issues that he does not raise. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016)
(explaining that litigants forfeit claims that they fail to develop in an opening brief).
3 Kreis’ opening brief contests only the District Court’s order granting summary
judgment, over which we exercise de novo review. See Wharton v. Danberg, 854 F.3d
234, 241 (3d Cir. 2017). Summary judgment is proper when, viewing the evidence in the
light most favorable to the nonmoving party, the record “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422–23 (3d Cir. 2006).
A genuine dispute of material fact exists if the evidence is sufficient for a reasonable
factfinder to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The non-moving party “must go beyond pleadings and provide
some evidence that would show that there exists a genuine issue for trial.” Jones v.
United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
III.
“The question in excessive force cases is whether, under the totality of the
circumstances, ‘the officers’ actions are objectively reasonable in light of the facts and
circumstances confronting them, without regard to their underlying intent or
motivation.’” Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024) (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)). This determination is made based on the
officers’ perspective at the scene, “rather than with the 20/20 vision of hindsight.” Id.
(quoting Graham, 490 U.S. at 396). In addition, “[t]he history of the interaction, as well
4 as other past circumstances known to the officer . . . may inform the reasonableness of
the use of force.” Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025).
The following factors are used to assess officers’ reasonableness: “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 resisting arrest or attempting to evade arrest
by flight,” Anglemeyer, 92 F.4th at 188, as well as “the physical injury to the plaintiff,
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, the possibility that the suspect may be armed, and the number of
persons with whom the police officers must contend at one time.” Id. at 189.
We are constrained to agree with the District Court that the available evidence
indicates that Officers Clinese and Alercia acted objectively reasonably. According to
several officers’ reports, Clinese tased Kreis when he saw Kreis reach for McPherson’s
service weapon. Cf. Johnson v.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 24-3073 __________
AUGUST B. KREIS, IV, Appellant
v.
JAMES ALERCIA; PATRICK A. CLINESE, PPD Badge #2733; JOHN GILLEN; EVAN GOLDSTEIN, PPD Badge #2703; KENNETH MCPHERSON; PALMER TOWNSHIP ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5:21-cv-03321) District Judge: Honorable Cynthia M. Rufe ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) August 11, 2025
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges
(Opinion filed: August 25, 2025) ___________
OPINION* ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM
August Kreis, IV, appeals pro se from the District Court’s order granting the
appellees’ motion for summary judgment. We will affirm in part, vacate in part, and
remand for further proceedings.
I.
On November 8, 2020, Kreis’ sister found a gun under his bed, brought it to the
Palmer Township Police Department, and reported to Officer Evan Goldstein that Kreis’
possession of the gun was illegal based on his criminal history. Kreis’ stepfather also
gave a statement about an incident that occurred a few months before in which Kreis
assaulted him and threatened him with the same gun. Based on Kreis’ criminal history
and the statements from Kreis’ family members, Goldstein immediately sought and
obtained a warrant for Kreis’ arrest, charging him with unlawful possession of a firearm
by a convicted felon, as well as search warrants for his house and car.
Later that night, nine police officers were dispatched to Kreis’ address to execute
the warrants. Officer John Gillen spoke on the phone with Kreis, who agreed to come
outside. He then walked through the front door toward Officers Gillen and Kenneth
McPherson. At some point, Kreis turned away from the officers. They immediately
attempted to gain physical control of Kreis, which caused all three men to fall to the
ground. McPherson tased Kreis. Kreis, who has epilepsy, began seizing. At this point,
Officer Patrick Clinese approached and, seeing Kreis reach for McPherson’s service
2 weapon while struggling with McPherson and Gillen on the ground, also deployed his
taser on Kreis. When Kreis stopped seizing and came to, Officer James Alercia was
pointing an assault rifle at his head. Kreis was then handcuffed, placed in custody, and
taken to the hospital. He suffered several bruises, including one on the front of his head,
injuries from the taser barbs, dizziness lasting several days, and headaches lasting three
weeks. Kreis was additionally charged with and later pleaded guilty to resisting arrest and
disarming a law enforcement officer, as well as various crimes related to the earlier
incident with his stepfather.
In July 2021, Kreis filed a complaint pursuant to 42 U.S.C. § 1983, which he later
amended, alleging violations of his Fourth and Fourteenth Amendment rights. The
District Court ultimately dismissed most of Kreis’ claims but allowed his excessive force
claims against defendants McPherson, Gillen, Clinese, and Alercia to move forward.
These remaining defendants filed a motion for summary judgment, which the District
Court granted, explaining that the officers’ actions in effecting Kreis’ arrest were
objectively reasonable under the circumstances. Kreis timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We construe Kreis’ filings liberally,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but we do not consider
issues that he does not raise. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016)
(explaining that litigants forfeit claims that they fail to develop in an opening brief).
3 Kreis’ opening brief contests only the District Court’s order granting summary
judgment, over which we exercise de novo review. See Wharton v. Danberg, 854 F.3d
234, 241 (3d Cir. 2017). Summary judgment is proper when, viewing the evidence in the
light most favorable to the nonmoving party, the record “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422–23 (3d Cir. 2006).
A genuine dispute of material fact exists if the evidence is sufficient for a reasonable
factfinder to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The non-moving party “must go beyond pleadings and provide
some evidence that would show that there exists a genuine issue for trial.” Jones v.
United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
III.
“The question in excessive force cases is whether, under the totality of the
circumstances, ‘the officers’ actions are objectively reasonable in light of the facts and
circumstances confronting them, without regard to their underlying intent or
motivation.’” Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024) (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)). This determination is made based on the
officers’ perspective at the scene, “rather than with the 20/20 vision of hindsight.” Id.
(quoting Graham, 490 U.S. at 396). In addition, “[t]he history of the interaction, as well
4 as other past circumstances known to the officer . . . may inform the reasonableness of
the use of force.” Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025).
The following factors are used to assess officers’ reasonableness: “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 resisting arrest or attempting to evade arrest
by flight,” Anglemeyer, 92 F.4th at 188, as well as “the physical injury to the plaintiff,
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, the possibility that the suspect may be armed, and the number of
persons with whom the police officers must contend at one time.” Id. at 189.
We are constrained to agree with the District Court that the available evidence
indicates that Officers Clinese and Alercia acted objectively reasonably. According to
several officers’ reports, Clinese tased Kreis when he saw Kreis reach for McPherson’s
service weapon. Cf. Johnson v. City of Phila., 837 F.3d 343, 350 (3d Cir. 2016) (“[O]nce
[plaintiff] began reaching for [the police officer]’s gun, [the officer] was justified in using
deadly force to defend himself”). Kreis did not deny that he reached for the gun—on the
contrary, he pleaded guilty to disarming an officer. Further, Alercia never touched Kreis;
he only aimed his weapon at Kreis after Kreis’ altercation with the other officers but
before he was handcuffed. See Graham, 490 U.S. at 396 (“[T]he right to make an
arrest . . . necessarily carries with it the right to use some degree of physical coercion or
5 threat thereof to effect it.”). Again, Kreis did not deny this version of events. Viewing the
evidence in the light most favorable to Kreis, as we must, he has failed to show a genuine
issue of material fact that would enable his claims against Officers Clinese and Alercia to
survive summary judgment.
We disagree, however, with the District Court’s grant of summary judgment with
respect to the claims against Officers McPherson and Gillen. The District Court’s
analysis of these claims assumes that Kreis was actively resisting arrest throughout the
entire encounter, and that this resistance rendered McPherson’s and Gillen’s actions
objectively reasonable. Though Kreis pleaded guilty to resisting arrest, it is not clear from
which specific facts that conviction arose. Moreover, his conviction for resisting arrest
“would not be inconsistent with a holding that the officers, during a lawful arrest, used
excessive (or unlawful) force in response to his own unlawful actions.” Lora-Pena v.
F.B.I., 529 F.3d 503, 506 (3d Cir. 2008) (per curiam).
There are genuine issues of material fact regarding whether McPherson’s and
Gillen’s actions were reasonable. McPherson’s and Gillen’s reports describe a “leg
sweep” used to trip Kreis. But even in the brief excerpt of Kreis’ deposition provided by
Appellees, Kreis recounts a notably more violent altercation: he describes the officers
“slamming [him] to the ground” before he “got a chance to reply [their] orders,” such that
his head bounced off the ground and induced a seizure. ECF No. 68-1 at 63; see Paladino
v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018) (“a single, non-conclusory affidavit or
6 witness's testimony, when based on personal knowledge and directed at a material issue,
is sufficient to defeat summary judgment.” (quoting Lupyan v. Corinthian Colls., Inc.,
761 F.3d 314, 320 (3d Cir. 2014))). Gillen’s and McPherson’s reports also conflict with
each other: Gillen states that McPherson tased Kreis after they all fell to the ground, and
McPherson states that he tased Kreis as Gillen tripped him.
We note that the record in this case is underdeveloped. Although the record
contains the involved officers’ reports, Kreis’ criminal history records, and the transcript
of his guilty plea proceeding, it includes only excerpts (eight nonconsecutive pages out of
119) from Kreis’ deposition. In addition, though body worn camera footage from all
involved officers was recorded and preserved, none of this footage was placed in the
record.1
In sum, we will affirm the District Court’s judgment with respect to the claims
against Officers Clinese and Alercia. We will vacate the grant of summary judgment with
respect to the claims against Officers McPherson and Gillen, and remand for further
presentation of information to the District Court, including Kreis’ full deposition and
body camera footage if the District Court seeks it, on those claims only. See DeHart v.
Horn, 227 F.3d 47, 59-60 (3d Cir. 2000) (en banc) (reversing district court's grant of
summary judgment and remanding for further development of the record). We express no
1 Kreis states in this Court that he requested this footage from the defendants but never received it.
7 opinion about whether summary judgment would be appropriate in light of a more
complete record.