Marcus Rosser v. Thomas Donovan

• Court: Court of Appeals for the Third Circuit
• Decided: November 1, 2021
• Docket: 20-3278
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-3278 __________

MARCUS ROSSER, Appellant

v.

THOMAS DONOVAN; DETECTIVE JOHN MIKUS; DETECTIVE THOMAS ORZECHOWSKI; ERIC CHRISTOPHER; TIMOTHY COLLINS; JEFFREY GEORTLER ____________________________________

On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-16-cv-00381) District Judge: Honorable Maryellen Noreika ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) October 7, 2021

Before: JORDAN, MATEY and NYGAARD, Circuit Judges

(Opinion filed: November 1, 2021) ___________

OPINION * ___________

PER CURIAM

Marcus Rosser, a prisoner proceeding pro se and in forma pauperis, appeals the

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. District Court’s order granting summary judgment in favor of six law enforcement

defendants. For the following reasons, we will vacate in part, affirm in part, and remand

the case for further proceedings.

I.

In July 2014, New Castle County Police arrested Rosser as a suspect in a non-

lethal shooting and placed him in a holding room at police headquarters around 12:45

a.m., with no handcuffs or other restraints. After obtaining a search warrant for Rosser’s

DNA and possible gunshot residue, Corporal Donovan, Officer Geortler, and Detectives

Mikus and Orzechowski went to the holding room at 5:40 a.m. to execute the warrant.

When they opened the door, Rosser stood in the doorway and asked why he was being

detained. Mikus, holding the evidence collection vials, told him to sit down. Rosser

refused to do so until he was told why he was detained. As Mikus turned to put the vials

down, Donovan stepped into the doorway, coming face-to-face with Rosser. Donovan

told him to sit down, and Rosser again refused.

The confrontation then became physical. Donovan tried to bring Rosser to the

ground with a headlock. Geortler struck Rosser in the knees, which did not take him

down. Donovan then pulled Rosser through the doorway and into a desk outside the

room. All four officers attempted to control Rosser’s movements and place him in

handcuffs. Mikus held Rosser down with his hands, and Donovan struck Rosser multiple

times with a closed fist around the face, head, and torso. Mikus also struck Rosser in the

torso. Eventually, Mikus and Orzechowski got a set of handcuffs on Rosser, and in the 2 struggle the handcuffs became very tight. They also shackled Rosser’s legs and placed a

spit hood on his head after he spit blood on the floor.

Rosser remained prone and covered with the spit hood until an ambulance arrived

and an EMT made a preliminary examination. Rosser was then taken to Christiana Care

Hospital. When placed on the stretcher, Rosser asked that his handcuffs be loosened, but

they were not. Officer Collins and Detective Christopher rode in the ambulance with

Rosser and accompanied him throughout his examination at the hospital. Rosser’s

handcuffs were never removed while he was at the hospital, although the spit hood was

removed at some point. Photographs taken both at the hospital and after his return to

police headquarters show Rosser with swelling around his right eye, a swollen and

broken lip, a bloodied nose, and some injuries to his wrists. Rosser was later taken to the

Howard R. Young Correctional Institution, where he did not report the incident or tie it to

his injuries, despite being seen by the medical staff at intake and the next day.

At Rosser’s trial in the Superior Court of New Castle County, he was convicted of

various assault and weapons offenses related to the shooting but acquitted of resisting

arrest and offensive touching for the events at police headquarters. 1

Rosser initiated this section 1983 action in May 2016, alleging excessive force by

Donovan, Geortler, Mikus, and Orzechowski, and a failure by Collins and Christopher to

1 See State v. Rosser, 2018 WL 6432985, at *1 (Del. Super. Ct. Nov. 26, 2018), report accepted, 2018 WL 6721365 (Del. Super. Ct. Dec. 20, 2018), aff'd, 221 A.3d 915 (Del. 2019).

3 intervene or protect him. After the close of discovery, defendants collectively moved for

summary judgment, primarily arguing that they were protected by qualified immunity

because any force they had used was objectively reasonable. The District Court granted

their motion, and Rosser timely filed a notice of appeal.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review

over a district court’s grant of summary judgment. Blunt v. Lower Merion Sch. Dist., 767

F.3d 247, 265 (3d Cir. 2014). Summary judgment is appropriate “if the movant 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). 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). In

evaluating a motion for summary judgment, “all justifiable inferences are to be drawn in .

. . favor” of the non-moving party, id. at 255, and “[i]n qualified immunity cases, this

usually means adopting . . . the plaintiff's version of the facts,” Scott v. Harris, 550 U.S.

372, 378 (2007). “Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge, . .

. [when] ruling on a motion for summary judgment . . . .” Anderson, 477 U.S. at 255.

III.

“Police officers, embodying the authority of the state, are liable under § 1983

when they violate someone’s constitutional rights, unless they are protected by qualified 4 immunity.” Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007). In assessing qualified

immunity, a court asks “(1) whether the officer violated a constitutional right, and (2)

whether the right was clearly established, such that ‘it would [have been] clear to a

reasonable officer that his conduct was unlawful.’” Lamont v. New Jersey, 637 F.3d 177,

182 (3d Cir. 2011) (alteration in original) (quoting Saucier v. Katz, 533 U.S. 194, 202

(2001)). A court may address the steps in either order. See Pearson v. Callahan, 555 U.S.

236 (2009). Here, the District Court held that the officers did not violate Rosser’s

constitutional rights and therefore did not reach the question whether those rights were

clearly established.

The District Court considered the officers’ use of force under the Fourth

Amendment, because they were seeking to execute a search warrant, see Los Angeles

Cnty. v. Rettele, 550 U.S. 609, 614 (2007); Graham v. Connor, 490 U.S. 386, 396–97

(1989), and under the Fourteenth Amendment’s Due Process clause, because Rosser was

a pretrial detainee, see Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). The District

Court determined that “[t]he reasonableness factors under the Fourth Amendment are the

same as those under the Due Process clause for pretrial detainee claims.” Mem. 12, ECF

No. 151 (citing Graham, 490 U.S. at 396).

Rosser argues that only the Fourth Amendment standard should apply, because at

the time of the incident he was merely an arrestee and had not yet had a probable cause

hearing. We need not resolve that question because, for an arrestee like Rosser,

“[w]hatever the source of law, in analyzing an excessive force claim, a court must 5 determine whether the force was objectively unreasonable in light of the facts and

circumstances of each particular case.” Lombardo v. City of St. Louis, Missouri, 141 S.

Ct. 2239, 2241 n.2 (2021) (per curiam) (internal quotation marks omitted) (citing

Kingsley, 576 U.S. at 397); see also Jacobs v. Cumberland Cnty., 8 F.4th 187, 195 n.6

(3d Cir. 2021) (“Although the factual scenarios in the two contexts may differ, the

Fourteenth Amendment standard is now almost identical to the Fourth Amendment

standard.” (citations omitted)). The factors to consider include: (1) the relationship

between the need for the use of force and the amount of force used; (2) the extent of the

plaintiff’s injury; (3) any effort made by the officer to temper or to limit the amount of

force; (4) the severity of the security problem at issue; (5) the threat reasonably perceived

by the officer; and (6) whether the plaintiff was actively resisting. Kingsley, 576 U.S. at

397 (citing Graham, 490 U.S. at 396).

i. Tackling and Beating

Regarding the incident when the officers brought Rosser to the ground, Rosser

asserts that the District Court did not carefully address the relevant factors, construed

facts and drew inferences in the movants’ favor rather than his, and inappropriately made

credibility determinations and weighed the evidence. We agree to the extent that it

appears the District Court employed a subjective rather than objective test under the fifth

6 factor, resolved a dispute of material fact over Rosser’s resistance under the third and

sixth factors, and favored the movants’ version of events. 2

In evaluating the fifth factor, the District Court said it was “undisputed that Mikus

perceived Rosser’s actions as physically threatening and that he believed Rosser was

going to push him.” Mem. 13. In assessing the use of force, however, Mikus’s

perceptions are not dispositive. The standard is objective: “the perspective of a

reasonable officer on the scene.” Graham, 490 U.S. at 396; see also Kingsley, 576 U.S. at

403–04. The District Court here did not apply that standard; nor did it construe the facts

in Rosser’s favor.

In analyzing the third and sixth factors, the District Court appears to have resolved

disputes of fact and drew inferences against Rosser about any resistance. For the third

factor, the Court stated that “as to any effort made by officers to temper or to limit the

amount of force, the record reflects that Rosser refused commands to stop fighting, stop

resisting, place his hands behind his back, and to calm down.” Mem. 13. Concerning the

sixth factor, “as to whether Rosser was actively resisting, the contemporaneous Use of

Force Reports indicate that he was, although Rosser testified that he could not remember

2 As for the other factors, the District Court’s analysis of the first factor spoke to the need for some quantum of force, but not whether the amount of force used was rationally related to the officers’ stated purpose. See Kingsley, 576 U.S. at 398. For the second factor, we merely note that “de minimis injuries do not necessarily establish de minimis force.” Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002). And as to the fourth factor, it is undisputed that Rosser was unsecured in the holding room; the District Court’s passing mention does not reveal what role this fact played in the analysis, thus we cannot say whether resulting inferences were drawn inappropriately against Rosser. 7 what happened after he refused commands to back away from the door, and his later filed

affidavit states that he did not resist.” Id. at 13–14.

The District Court’s statement that “Rosser testified that he could not remember

what happened,” only partly accounts for the record. Rosser made some equivocal

statements in his deposition like “I believe,” and “I just remember,” but his account

largely matches his subsequent affidavit. Compare Redacted App. 110–20, ECF No. 142

(deposition transcript), with Aff. 3–4, ¶¶ 4, 5, 13, ECF No. 145-1. We also note that use-

of-force reports reflect the subjective impressions of law enforcement officers; though

properly considered in the summary judgment context, they are due no more weight when

offered by movants who prepared them than are the affidavits of non-movants. Cf. Clark

v. Clabaugh, 20 F.3d 1290, 1294–95 (3d Cir. 1994) (allowing a police report to establish

genuine issues of material fact when offered against members of the department that

prepared it, and when “authors of the Report were not and are not now parties to the

litigation”).

The officers maintain that, in any case, Rosser has not established a genuine issue

of material fact, because the photographs and medical records from the hospital visit after

the incident are objective evidence that disproves Rosser’s version of events and instead

reflect the use of reasonable force. We disagree. The photographs show that Rosser

arrived at the hospital barefoot, with his face cut, swollen, and streaked with dried blood.

See ECF No. 142 at 199–202. The force that caused those injuries may have been

reasonable but, without more, the photographs and medical records are not evidence, 8 conclusive or otherwise, that it was.

It is beyond dispute that Rosser was unarmed, outnumbered, and detained. The

officers do not allege that Rosser resisted when they first took him into custody. Their

decision to leave him unsecured for five hours suggests that he was compliant until this

confrontation in the doorway. The officers admit to pulling Rosser to the ground and

striking him repeatedly. They defend their actions by alleging that Rosser was combative,

threatening, and noncompliant. Rosser concedes that he refused to back away from the

door but insists that he was not combative. 3 Rosser’s accounts do not seem to be so

inconsistent, vague, or refuted by the record as to warrant summary judgment for the

officers. See Scott, 550 U.S. at 380; Anderson, 477 U.S. at 255.

Given the totality of the circumstances, the District Court should not have

concluded as a matter of law that the use of force was objectively reasonable. See Curley,

298 F.3d at 278 (“[A] decision on qualified immunity will be premature when there are

unresolved disputes of historical fact relevant to the immunity analysis.”); cf. Abraham v.

Raso, 183 F.3d 279, 290 (3d Cir. 1999) (“[R]easonableness under the Fourth Amendment

should frequently remain a question for the jury.”). Accordingly, we will vacate the

3 We disagree with Rosser that his acquittal on charges of resisting arrest and offensive touching related to this incident should be dispositive. See Williams v. Brooks, 809 F.3d 936, 945 (7th Cir. 2016) (“Evidence of acquittal in a criminal action is generally irrelevant and inadmissible in a civil case involving the same incident . . . .” (citation omitted)). Nonetheless, Rosser’s consistent version of the facts, on its own, is sufficient to carry his burden at this stage. See Scott, 550 U.S. at 378.

9 District Court’s grant of summary judgment as to these four defendants on this claim. 4

ii. Handcuffs

We agree with the District Court that Rosser failed to establish a genuine issue of

material fact regarding his claim that his handcuffs were so tight as to amount to a

constitutional violation. Clearly, “restraints that cause unnecessary pain” can amount to

excessive force. Rettele, 550 U.S. at 614; see also Kopec v. Tate, 361 F.3d 772, 777–78

(3d Cir. 2004). But Rosser’s complaint, deposition, statement of material facts, and

affidavit all contain contradictory and inconsistent stories that cannot rise to the level of

specific evidence from which a reasonable factfinder could render judgment in his favor.

See Anderson, 477 U.S. at 248.

iii. Failure to Intervene

The District Court granted summary judgment in favor of Officer Collins and

Detective Christopher for two reasons: (1) Rosser waived the issue because he did not

address it in his reply brief; and (2) Rosser’s rights were not violated by the other

defendants, so Collins and Christopher had no reason to intervene. We will affirm, but on

other grounds. See TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019). (“[We] may

affirm on any basis supported by the record, even if it departs from the District Court’s

rationale.”).

4 We cannot affirm on the second prong of the qualified immunity analysis, because the rights allegedly violated here were clearly established at the time of the incident. Cf. Giles v. Kearney, 571 F.3d 318, 327 & n.4 (3d Cir. 2009) (finding it clearly “established that an officer may not kick or otherwise use gratuitous force against an inmate who has 10 “[A] police officer has a duty to take reasonable steps to protect a victim from

another officer’s use of excessive force,” but “is only liable if there is a realistic and

reasonable opportunity to intervene.” Mensinger, 293 F.3d at 650–51. Collins and

Christopher were entitled to summary judgment because Rosser has not shown that they

had a realistic and reasonable opportunity to intervene. They did not arrive on the scene

until Rosser was placed in the ambulance and taken to the hospital. As detailed above,

Rosser made inconsistent assertions about when and to whom he complained about the

handcuffs. Even liberally construing his claims against these officers to include the

handcuff claim, we cannot find a genuine issue of material fact as to their ability to

intervene. Thus, we will affirm the District Court’s grant of summary judgment as to

Collins and Christopher.

IV.

In conclusion, we will vacate the District Court’s grant of summary judgment as to

defendants Donovan, Mikus, Orzechowski, and Geortler on Rosser’s claim of excessive

force arising out of the physical confrontation, we will affirm as to the claim about the

tightness of the handcuffs and as to defendants Christopher and Collins, and we will

remand the case for further proceedings consistent with this opinion. 5

been subdued”); Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006). 5 Rosser also challenges the District Court’s rulings related to his subpoenas for video evidence of the incident. We “review a district court's discovery orders for abuse of discretion, and will not disturb such orders without a showing of actual and substantial prejudice.” Cyberworld Enter. Techs., Inc. v. Napolitano, 602 F.3d 189, 200 (3d Cir. 2010). Because it does not appear from the record that there is any video evidence 11 available, the District Court did not abuse its discretion in denying Rosser’s requests. 12