NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 16-4179 _________________
MARK J. CARTER,
Appellant
v.
THE CITY OF PHILADELPHIA; POLICE OFFICER ROLAND M. BUTLER, BADGE NUMBER 2922; POLICE OFFICER MAMMOUA, BADGE NO. 4805; RUFUS STOKES; FAYE PATERSON; POLICE OFFICERS JOHN DOE, NUMBERS 1 THROUGH FIFTEEN, BADGE NUMBERS UNKNOWN; JOHN ROE'S, ONE THROUGH TEN _________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:15-cv-01052) District Judge: Hon. Legrome D. Davis _________________
Submitted Under Third Circuit L.A.R. 34.1(a) September 15, 2017
Before: VANASKIE, RENDELL, FUENTES, Circuit Judges
(Opinion Filed: December 6, 2017) _________________
OPINION* _________________
FUENTES, Circuit Judge.
Mark Carter appeals the District Court’s dismissal of his claim for denial of access
to courts and its grant of summary judgment in favor of Butler and Mammoua on his
excessive force and assault and battery claims. For the following reasons, we will affirm.
I.
Because we write primarily for the parties, we discuss only those facts necessary to
our decision.
In March 2013, Carter was involved in a traffic accident in the City of Philadelphia.
Before the police arrived, Carter left his car and began walking away from the scene. He
was detained by at least one non-police individual in the area. According to Carter,
numerous police officers then arrived and “beat [him].”1 Carter was arrested for driving
under the influence.
In 2015, Carter sued the City of Philadelphia (“City”) and police officers Butler and
Mammoua, among others. In the first count of his Amended Complaint, Carter alleged
that the City violated his right to access the courts because its procedures prevented him
from identifying all of the officers involved in his arrest. He based his allegation on the
Philadelphia Police Department’s Overtime Management Memorandum and its Standard
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 Supp. App. 18 (29:1). 2 Operating Procedures. The Overtime Management Memorandum directs that only those
officers “necessary for the successful outcome of the case” be listed on arrest and
investigative reports.2 Similarly, the Standard Operating Procedures require that “each
component of case management is handled by as few police personnel as possible, as
needed for the successful prosecution of the case.”3 The District Court granted the City’s
Motion to Dismiss Carter’s denial of access to courts claim.
Carter’s Amended Complaint also included one count of excessive force and one
count of state law assault and battery against Butler and Mammoua. During his deposition,
Carter testified that the police officers who “beat” him were “black.”4 He also testified that
he could not recall how many officers hit him nor what any of the officers looked like.
Furthermore, the factual record reflects that Carter could not identify Butler from a photo
array of eight African American police officers, that Mammoua is Caucasian, and that
Butler and Mammoua completed the incident and arrest reports regarding Carter’s arrest
and the preceding events. The District Court granted summary judgment in favor of Butler
and Mammoua on Carter’s excessive force and assault and battery claims. This appeal
followed. 5
2 App. 64a. 3 App. 68a. 4 Supp. App. 18 (29:13-14; 30:13-15). 5 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. § 1291. Our review of a grant of a motion to dismiss is plenary, and for the purpose of such review, we accept the factual allegations in the operative complaint as true. Allen v. DeBello, 861 F.3d 433, 437–38 (3d Cir. 2017). Our review of a grant of summary judgment is also plenary. Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 n.11 (3d Cir. 2017). Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-moving party, 3 II.
We will first examine Carter’s argument that the District Court erred in dismissing
his claim for denial of access to courts and then turn to Carter’s appeal of the District
Court’s grant of summary judgment.
A.
Carter asserts that his right of access to courts was violated by the City’s procedures
delineating that only officers necessary to the success of a case be listed on arrest reports
because such procedures prevented him from identifying, suing, and deposing all of the
officers who were involved in his assault. The right of access to courts is a constitutional
right that is grounded in the Privileges and Immunities Clause of Article VI, the Petition
Clause of the First Amendment, the Fifth Amendment Due Process Clause, and the Due
Process and Equal Protection Clauses of the Fourteenth Amendment.6 We have explained
that “only prefiling conduct that either prevents a plaintiff from filing suit or renders the
plaintiff's access to the court ineffective or meaningless constitutes a constitutional
violation.”7 The City’s procedures at issue here do neither.
As the District Court discussed, the City’s procedures did not prevent Carter from
filing suit because he successfully filed the instant lawsuit. Similarly, Carter’s access to
the moving party demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id; Fed. R. Civ. P. 56(a). “[T]he burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court— that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 6 Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002). 7 Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir. 2003). 4 the court was not rendered ineffective or meaningless by the City’s procedures. We have
previously expressed our reluctance to allow plaintiffs to recover on denial of access to
courts claims for “any cover-ups or discovery abuses after an action has been filed
inasmuch as the trial court can deal with such situations in the ongoing action.”8 Although
the City’s procedures were in place before Carter filed this action, the same principle
applies. Carter’s access to the court was not ineffective or meaningless because he could
have dealt with his uncertainty about which officers were present at the scene of his arrest
in his proceedings before the District Court. Specifically, Carter could have attempted to
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 16-4179 _________________
MARK J. CARTER,
Appellant
v.
THE CITY OF PHILADELPHIA; POLICE OFFICER ROLAND M. BUTLER, BADGE NUMBER 2922; POLICE OFFICER MAMMOUA, BADGE NO. 4805; RUFUS STOKES; FAYE PATERSON; POLICE OFFICERS JOHN DOE, NUMBERS 1 THROUGH FIFTEEN, BADGE NUMBERS UNKNOWN; JOHN ROE'S, ONE THROUGH TEN _________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:15-cv-01052) District Judge: Hon. Legrome D. Davis _________________
Submitted Under Third Circuit L.A.R. 34.1(a) September 15, 2017
Before: VANASKIE, RENDELL, FUENTES, Circuit Judges
(Opinion Filed: December 6, 2017) _________________
OPINION* _________________
FUENTES, Circuit Judge.
Mark Carter appeals the District Court’s dismissal of his claim for denial of access
to courts and its grant of summary judgment in favor of Butler and Mammoua on his
excessive force and assault and battery claims. For the following reasons, we will affirm.
I.
Because we write primarily for the parties, we discuss only those facts necessary to
our decision.
In March 2013, Carter was involved in a traffic accident in the City of Philadelphia.
Before the police arrived, Carter left his car and began walking away from the scene. He
was detained by at least one non-police individual in the area. According to Carter,
numerous police officers then arrived and “beat [him].”1 Carter was arrested for driving
under the influence.
In 2015, Carter sued the City of Philadelphia (“City”) and police officers Butler and
Mammoua, among others. In the first count of his Amended Complaint, Carter alleged
that the City violated his right to access the courts because its procedures prevented him
from identifying all of the officers involved in his arrest. He based his allegation on the
Philadelphia Police Department’s Overtime Management Memorandum and its Standard
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 Supp. App. 18 (29:1). 2 Operating Procedures. The Overtime Management Memorandum directs that only those
officers “necessary for the successful outcome of the case” be listed on arrest and
investigative reports.2 Similarly, the Standard Operating Procedures require that “each
component of case management is handled by as few police personnel as possible, as
needed for the successful prosecution of the case.”3 The District Court granted the City’s
Motion to Dismiss Carter’s denial of access to courts claim.
Carter’s Amended Complaint also included one count of excessive force and one
count of state law assault and battery against Butler and Mammoua. During his deposition,
Carter testified that the police officers who “beat” him were “black.”4 He also testified that
he could not recall how many officers hit him nor what any of the officers looked like.
Furthermore, the factual record reflects that Carter could not identify Butler from a photo
array of eight African American police officers, that Mammoua is Caucasian, and that
Butler and Mammoua completed the incident and arrest reports regarding Carter’s arrest
and the preceding events. The District Court granted summary judgment in favor of Butler
and Mammoua on Carter’s excessive force and assault and battery claims. This appeal
followed. 5
2 App. 64a. 3 App. 68a. 4 Supp. App. 18 (29:13-14; 30:13-15). 5 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. § 1291. Our review of a grant of a motion to dismiss is plenary, and for the purpose of such review, we accept the factual allegations in the operative complaint as true. Allen v. DeBello, 861 F.3d 433, 437–38 (3d Cir. 2017). Our review of a grant of summary judgment is also plenary. Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 n.11 (3d Cir. 2017). Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-moving party, 3 II.
We will first examine Carter’s argument that the District Court erred in dismissing
his claim for denial of access to courts and then turn to Carter’s appeal of the District
Court’s grant of summary judgment.
A.
Carter asserts that his right of access to courts was violated by the City’s procedures
delineating that only officers necessary to the success of a case be listed on arrest reports
because such procedures prevented him from identifying, suing, and deposing all of the
officers who were involved in his assault. The right of access to courts is a constitutional
right that is grounded in the Privileges and Immunities Clause of Article VI, the Petition
Clause of the First Amendment, the Fifth Amendment Due Process Clause, and the Due
Process and Equal Protection Clauses of the Fourteenth Amendment.6 We have explained
that “only prefiling conduct that either prevents a plaintiff from filing suit or renders the
plaintiff's access to the court ineffective or meaningless constitutes a constitutional
violation.”7 The City’s procedures at issue here do neither.
As the District Court discussed, the City’s procedures did not prevent Carter from
filing suit because he successfully filed the instant lawsuit. Similarly, Carter’s access to
the moving party demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id; Fed. R. Civ. P. 56(a). “[T]he burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court— that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 6 Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002). 7 Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir. 2003). 4 the court was not rendered ineffective or meaningless by the City’s procedures. We have
previously expressed our reluctance to allow plaintiffs to recover on denial of access to
courts claims for “any cover-ups or discovery abuses after an action has been filed
inasmuch as the trial court can deal with such situations in the ongoing action.”8 Although
the City’s procedures were in place before Carter filed this action, the same principle
applies. Carter’s access to the court was not ineffective or meaningless because he could
have dealt with his uncertainty about which officers were present at the scene of his arrest
in his proceedings before the District Court. Specifically, Carter could have attempted to
identify other officers through discovery and then sought to join them in the present action.
In fact, Carter did learn the names of two officers who were involved in his arrest during
Butler’s deposition. He did not try to join the officers in this action, and he does not explain
why he could not have done so. Accordingly, we conclude that Carter’s access to the court
was not ineffective or meaningless, and we will affirm the District Court’s dismissal of his
claim for denial of access to courts.
B.
We will also affirm the District Court’s grant of summary judgment on Carter’s
excessive force and assault and battery claims. The District Court concluded that Butler
and Mammoua had met their burden of showing that there was an absence of evidence to
support Carter’s case. On appeal, Carter challenges the District Court’s conclusion and
also argues that Butler and Mammoua are liable because they failed to intervene to stop
8 Id. 5 the assault. We need not address Carter’s failure-to-intervene argument because he has
waived it by not raising it in the District Court.9
Turning then to the District Court’s grant of summary judgment, we conclude that
the District Court properly held that there was an absence of evidence to support Carter’s
excessive force and assault and battery claims. In fact, there is no evidence that supports
Carter’s assertions that Butler and Mammoua had any physical contact with him, let alone
any evidence that they used excessive force against him. Instead, the record contradicts
Carter’s claims: Carter could not identify Butler in a photo array, and Carter testified that
the officers who assaulted him were African American, but Mammoua is Caucasian. Carter
argues that a genuine dispute of material fact exists because Butler and Mammoua wrote
the reports detailing the events of the night of his arrest. However, even viewed in the light
most favorable to Carter, this fact has no bearing on whether Butler and Mammoua
personally used force of any kind against Carter. Thus, we will affirm the District Court’s
grant of summary judgment on Carter’s excessive force and assault and battery claims.
III.
For the foregoing reasons, we will affirm the District Court’s dismissal of Carter’s
denial of access to courts claim and its grant of summary judgment in favor of Butler and
Mammoua on Carter’s excessive force and assault and battery claims.
9 Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d Cir. 2009).