Don Ickes v. Craig Grassmyer , 704 F. App'x 190 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3605
___________
DON R. ICKES,
Appellant
v.
CRAIG GRASSMYER; BARRY AUGNST; THOMAS LASKEY; STATE OF
PENNSYLVANIA; RONALD GIVLER; TOWNSHIP OF GREENFIELD
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 3-13-cv-00208)
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 27, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: July 28, 2017)
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OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Don Ickes appeals the District Court’s order granting summary
judgment to the defendants. For the reasons discussed below, we will affirm the District
Court’s judgment.
On July 18, 2011, Trooper Laskey determined that a man later identified as Ickes
was driving 70 miles per hour in a construction zone where the speed limit was 50 miles
per hour. Trooper Laskey activated his siren to pull over Ickes. Instead of stopping
immediately, however, Ickes continued to drive for nearly another minute, ultimately
pulling into a secluded driveway. 1 Trooper Laskey continually asked for Ickes’s license
and registration, and while Ickes apparently pressed his documents against the inside of
his window, he refused Trooper Laskey’s direction to hand the papers to him.
Trooper Laskey then called for backup. He also determined that Ickes’s license
plate was fraudulent; it was issued by an organization called the “Embassy of Heaven”
rather than any state. The officers later learned that the vehicle’s registration was also
issued by the Embassy of Heaven. Eventually, four more police officers arrived on the
scene. One officer, Trooper Grassmyer, recognized Ickes and said the officers should
immediately remove him from the car. Grassmyer stated in his declaration that he was
familiar with Ickes as a member of the sovereign-citizen movement, that Ickes had
previously had many run-ins with police officers, that there were standing orders to send
two cars to any calls to Ickes’s home, and that the driveway in which Ickes had stopped
his car belonged to another member of the sovereign-citizen movement who had
1
This and much of what follows is depicted in a police dash-cam video.
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previously confronted a police officer with a gun. Trooper Grassmyer then asked Ickes
several times to open the door, and told him that if he did not, it would get opened.
Ickes still refused to open the door. At this point, Laskey shattered the front-
passenger-side window, unlocked the door, and pulled Ickes out. Ickes claims that he
was pulled through broken glass and then tackled onto the concrete driveway. He was
handcuffed and placed in a police vehicle. During the drive to the police station, Ickes
complained of chest pains, and Trooper Laskey took him to a hospital. At the hospital,
Ickes told the doctor that his chest pains had started earlier that day, before his police
encounter. The doctor recommended that Ickes stay in the hospital overnight, but Ickes
declined to do so. The medical records report that Ickes had some abrasions on his right
forearm but no other injuries. Ickes has presented photographs of the shirt he said he was
wearing on the night of the incident, which has blood stains on the back.
Ickes was eventually charged with, and convicted of, resisting arrest, harassment
(arising out of his efforts to file a criminal complaint against Trooper Laskey), and
several summary offenses concerning his speeding, his use of a fraudulent license plate
and registration, and his failure to yield to Officer Laskey’s vehicle and provide him with
documents upon request. See D.C. dkt. #7-2.
Ickes then filed this action, naming as defendants Trooper Laskey, Trooper
Grassmyer, Trooper Augnst (who was also present), Ronald Givler (the chief of the
Greenfield Township Police Department), and Greenfield Township. He presented
several state-law claims and claims under 42 U.S.C. § 1983, including, among other
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things, excessive force. The parties filed motions to dismiss. The District Court granted
the motions in part and denied them in part, permitting only Ickes’s excessive-force
claims against all defendants and a few state-law claims against Givler to go forward.
After discovery, the Court then granted summary judgment to the defendants on the
remaining claims. Ickes filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. We exercise a plenary standard of
review and apply the same standard as the District Court to determine whether summary
judgment was appropriate. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566
F.3d 86, 89 (3d Cir. 2009).
Ickes devotes the majority of his opening brief to challenging the validity of his
state convictions. However, he cannot raise those claims here — both because he did not
present them in the District Court, see, e.g., Eid v. Thompson, 740 F.3d 118, 125 (3d Cir.
2014), and because a civil-rights action is not an appropriate vehicle to challenge his
conviction and sentence, see Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973). Further, because Ickes does not challenge either
the District Court’s partial grant of the defendants’ motions to dismiss or the Court’s
grant of summary judgment to Ronald Givler, he has waived any such challenges. See
United States v. Jackson, 849 F.3d 540, 555 n.13 (3d Cir. 2017).
Thus, the only issue properly preserved for our review is the District Court’s grant
of summary judgment to the defendants on Ickes’s claim that they used excessive force in
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the course of arresting him. 2 In analyzing an excessive-force claim, courts examine
whether the force used was objectively reasonable, see Graham v. Connor, 490 U.S. 386,
397 (1989), considering (1) “the severity of the crime at issue,” (2) “whether the suspect
poses an immediate threat to the safety of the officers or others,” (3) “whether he is
actively resisting arrest or attempting to evade arrest by flight,” id. at 396, (4) “the
possibility that the persons subject to the police action are themselves violent or
dangerous,” (5) “the duration of the action,” (6) “whether the action takes place in the
context of effecting an arrest,” (7) “the possibility that the suspect may be armed,” and
(8) “the number of persons with whom the police officers must contend at one time,”
Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). “[T]he right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. The defendants are
2
The defendants argue at some length that this claim is barred by the applicable statute of
limitations. As they acknowledge, however, the only time that they mentioned this
statute-of-limitations defense was in their answer to the complaint; they did not raise it in
support of their motion to dismiss, their motion for summary judgment, or at any other
time. While we may affirm a district court’s decision on grounds other than those relied
upon by that court, this principle applies only when “the issue which forms the basis of
our decision was before the lower court.” Holk v. Snapple Beverage Corp., 575 F.3d
329, 336 (3d Cir. 2009) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 904
n.1 (3d Cir. 1997)). Because the defendants’ only assertion of this defense was a cursory
statement in their answer, we conclude that this defense was not “before the lower court”
for these purposes. See Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153,
1160-61 (3d Cir. 1989); see also Brown v. Crowley, 312 F.3d 782, 787-88 (6th Cir.
2002); Violette v. Smith & Nephew Dyonics, Inc., 62 F.3d 8, 11 (1st Cir. 1995).
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entitled to summary judgment if their use of force was objectively reasonable as a matter
of law. See Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004).
We agree with the District Court’s thorough analysis of the relevant factors. The
undisputed evidence reveals that Trooper Laskey made a legitimate traffic stop. See
United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006). He was entitled to ask
for Ickes’s license and registration and to order him to exit his vehicle. See New York v.
Class, 475 U.S. 106, 115 (1986); 75 Pa. Cons. Stat. § 1311(b). Ickes acted suspiciously
in passing up numerous safe places to pull over his car in favor of a secluded private
driveway. See Dunn v. Matatall, 549 F.3d 348, 354 (6th Cir. 2008). The officers were
entitled to rely on Trooper Grassmyer’s statement that Ickes had clashed with police in
the past. See Estate of Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005). Moreover,
while the officers did not see a weapon in plain sight, they could not rule out the
possibility that there was a weapon concealed in his car — or even that he could attempt
to use his car as a weapon. See Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016). A
reasonable officer might also think that Ickes’s fraudulent license plate and refusal to
comply with any requests suggested that he might be inclined to escalate his resistance.
See Davis v. Clifford, 825 F.3d 1131, 1136 (10th Cir. 2016). And, critically, the
defendants here did limit their use of force. Their force was directly related to their effort
to effectuate the arrest, 3 and the doctor who examined Ickes just after the incident
3
Some factors unquestionably counsel against any serious use of force: Ickes was
originally stopped for relatively minor traffic violations, see Deville v. Marcantel, 567
6
reported that Ickes had no acute injuries, only “some abrasions to his right forearm.”
D.C. dkt. #47-4 at 20.
In these circumstances, we agree with the District Court that, even construing the
facts in Ickes’s favor, the officers’ use of force was objectively reasonable under the
relevant factors as a matter of law. 4 See Kopec, 361 F.3d at 777; Grider v. Bowling, 785
F.3d 1248, 1252 (8th Cir. 2015).
Accordingly, we will affirm the District Court’s judgment.
F.3d 156, 167 (5th Cir. 2009) (per curiam), his resistance to the officers was passive, see
Coles v. Eagle, 704 F.3d 624, 629-30 (9th Cir. 2012), he was 76 years old at the time of
the incident, and, in the video, does not appear to present any physical threat to the
officers. However, as noted above, the officers did limit the amount of force they used.
4
In addition to Ickes’s claim that the defendants used excessive force in breaking his
window, pulling him out of the car, and handcuffing him, he alleges that the defendants
used excessive force by applying the handcuffs too tightly, buckling his seatbelt too
tightly, and pushing him back in the seat of the police vehicle when he was leaning
forward. Having reviewed the evidence in light of the relevant factors, we agree with the
District Court that these applications of minimal force were objectively reasonable as a
matter of law. See Gilles v. Davis, 427 F.3d 197, 208 (3d Cir. 2005); see generally
Graham, 490 U.S. at 396 (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.”
(quotation marks omitted)). Accordingly, we will likewise affirm the District Court’s
judgment as to these claims.
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