O'Neill v. City of Philadelphia , 289 F. App'x 509 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-4-2008
    O'Neill v. Philadelphia
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-1322
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    Recommended Citation
    "O'Neill v. Philadelphia" (2008). 2008 Decisions. Paper 728.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/728
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    No. 07-1322
    __________
    BERNARD J. O'NEILL; LINDA A. O'NEILL;
    MICHAEL COYLE, a minor, by and through his parent
    and natural guardian, Linda A. O'Neill;
    KELLY COYLE, a minor, by and through her parent
    and natural guardian, Linda A. O'Neill;
    DELORES CARMICHAEL; KATHLEEN O'NEILL;
    KEVIN WILLIAMS, a minor, by and through his parent
    and natural guardian, Linda A. O'Neill;
    D. KELLY O'NEILL; CHAD G. BRUMBAUGH,
    Appellants
    v.
    CITY OF PHILADELPHIA; POLICE COMMISSIONER RICHARD NEAL;
    DETECTIVE ROBERT BALLENTINE; DETECTIVE RICHARD BOVA;
    DETECTIVE ROBINSON; DETECTIVE JOHN DOE;
    CAPTAIN JOHN DOE; LIEUTENANT ROBERT MORRIS;
    LIEUTENANT JOHN DOE; SERGEANT JOHN DOE;
    POLICE OFFICERS JOHN DOE NOS. 1 THROUGH 50
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D. C. No. 97-cv-02141)
    District Judge: Hon. Thomas N. O’Neill, Jr.
    Submitted under Third Circuit LAR 34.1(a)
    on April 11, 2008
    Before: SMITH, HARDIMAN and ROTH, Circuit Judges
    (Opinion filed: August 4, 2008)
    OPINION
    ROTH, Circuit Judge:
    Bernard O’Neill, together with other named plaintiffs, appeals the District Court’s
    order denying plaintiffs’ motion for leave to amend the complaint, its order granting the
    defendants’ motion for reconsideration with respect to summary judgment, and its order
    denying plaintiffs’ motion for reconsideration. For the reasons discussed below, we will
    affirm.
    I. Background and Procedural History
    As the facts are well known to the parties, we will discuss them only briefly here.
    On March 25, 1997, plaintiffs filed this lawsuit in the U.S. District Court for the
    Eastern District of Pennsylvania. The defendants were the City of Philadelphia, multiple
    named police officers, including Detectives Robert Ballentine, Jr. and Gerald Robinson,
    and multiple “John Doe” police officers. Plaintiffs alleged that defendants violated their
    constitutional rights and state law during three searches of O’Neill’s home at 2910 S. 61st
    Street, Philadelphia, Pennsylvania, on May 30, June 12, and November 23, 1995.
    2
    These searches were conducted pursuant to an arrest warrant for O’Neill’s stepson.
    The April 1995 affidavit of probable cause for the warrant, prepared by Detective Richard
    Bova, indicates that O’Neill’s stepson was suspected of a March 26, 1995, arson and had
    fled to Florida. The Activity Sheet for the May 30 search stated, however, that
    “Detectives have received information that the fugitive was in the area.” The Activity
    Sheet for the June 12 search states, “Detectives prpceeded [sic] to 2910 S 61st Street to
    search for the fugitive as a result of information received from Police Recruit Darden.”
    On July 25, 1997, Plaintiffs moved to amend the complaint by substituting names
    for the “John Doe” officers. On August 7, 1997, the case was stayed and placed in the
    civil suspense file, pending the resolution of criminal proceedings against O’Neill’s
    stepson. The District Court denied the motion to amend, without prejudice to its renewal
    when the case was removed from suspense. On December 3, 2001, the case was
    removed from suspense. The case was then closed by a settlement agreement on March
    17, 2003. The agreement failed, however, and the case was reopened on June 25, 2003.
    Trial was scheduled to begin on November 7, 2006. The day before, November 6,
    plaintiffs sent the District Court a letter renewing their motion to amend.
    The District Court denied the motion. The court reasoned that allowing the
    amendment would result in “substantial hardship” to defendants. Noting that plaintiffs
    had “nearly five years to amend their complaint after the case was removed from civil
    suspense and before the trial was scheduled,” the District Court concluded that “[a]t this
    3
    late hour, allowing the amendment will result in not only the addition of multiple
    defendants and further delay of resolution of the case, but may necessitate a complete
    change in trial strategy for the current defendants.”
    On December 12, 2006, the District Court granted defendants’ motion to dismiss
    and entered summary judgment in favor of defendants on all claims except the Fourth
    Amendment illegal search claims against Detectives Ballentine and Robison.1 The
    District Court found that there were genuine issues of material fact as to whether those
    detectives “had a reasonable belief” that Jason lived and could be found at 2910 S. 61st
    Street. The District Court noted that, although the warrant listed 2910 S. 61st Street as
    the suspect’s address and the police had information that the suspect was in the area, the
    affidavit supporting the warrant indicated that the suspect’s last known whereabouts were
    in Florida. In addition, plaintiff O’Neill had told Internal Affairs that the suspect had not
    lived at 2910 S. 61st Street for three years, the police activity sheet described the address
    as “the fugitive’s father’s residence,” and the suspect had not been found during the May
    search.
    Defendants filed a motion for reconsideration, which the District Court granted on
    January 3, 2007. The District Court found that it was undisputed that Detectives
    Ballentine and Robison acted on a facially valid arrest warrant and that the activity sheets
    1
    Defendants Ballentine and Robison participated only in the May and July 1995
    searches, not the November 1995 search.
    4
    and warrant service forms for both the May and June searches indicate that the detectives
    had reports that the suspect was in the area. The District Court found further that
    plaintiffs offered no evidence that Ballentine and Robison had fabricated any information
    regarding the suspect’s whereabouts. The District Court concluded that Ballentine and
    Robison were entitled to qualified immunity because they had acted “objectively
    reasonably” in searching 2910 S. 61st Street and entered summary judgment in their
    favor. Plaintiffs moved for reconsideration, but the District Court denied their motion.
    Plaintiffs appealed. Their appeal presents two issues: (1) whether the District
    Court abused its discretion in denying their motion to amend, and (2) whether the District
    Court erred in granting the defendants’ motion for reconsideration and entering summary
    judgment in favor of defendants Ballentine and Robinson.2
    II. Analysis
    The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
    jurisdiction under 28 U.S.C. § 1291.
    We review the District Court’s decision to deny the Plaintiffs’ motion for leave to
    amend their complaint for abuse of discretion. Lorenz v. CSX Corp., 
    1 F.3d 1406
    , 1413
    (3d Cir. 1993). Under Federal Rule of Civil Procedure 15, a party may amend a
    complaint after a response has been served “only by leave of court or by written consent
    2
    Plaintiffs’ Notice of Appeal indicates that they also sought to appeal the District
    Court’s December 12, 2006, grant of summary judgment in favor of all other defendants.
    However, they have not briefed those issues on appeal, and we consider them waived.
    5
    of the adverse party; and leave shall be freely given when justice so requires.” The
    Supreme Court has explained,
    “In the absence of any apparent or declared reason – such as
    undue delay, bad faith or dilatory motive on the part of the
    movant, repeated failure to cure deficiencies by amendments
    previously allowed, undue prejudice to the opposing party by
    virtue of allowance of the amendment, futility of amendment,
    etc. – the leave sought should, as the rules require, be ‘freely
    given.’”
    Foman v. Davis, 
    371 U.S. 178
    , 182 (1962). “It is well-settled that prejudice to the non-
    moving party is the touchstone for the denial of an amendment.” Cornell & Co. v.
    Occupational Safety & Health Review Comm’n, 
    573 F.2d 820
    , 823 (3d Cir. 1978).
    Although “[t]he passage of time, without more, does not require that a motion to amend a
    complaint be denied,” at some point, the delay will become “undue” or “prejudicial.”
    Adams v. Gould, 
    739 F.2d 858
    , 868 (3d Cir. 1984). “Though leave to amend a complaint
    should be freely granted in the interests of justice, a motion to amend is committed to the
    sound discretion of the district judge.” Gay v. Petsock, 
    917 F.2d 768
    , 772 (3d Cir. 1990)
    (internal citation omitted).
    We find no abuse of discretion in the District Court’s denial of plaintiffs’ motion
    to amend their complaint. The plaintiffs were aware of the information that they wished
    to substitute in their amended complaint in July 1997, when the District Court dismissed
    their motion without prejudice and specifically indicated that they could renew the motion
    once the case was no longer suspended. However, plaintiffs waited to renew their motion
    6
    for over three years from the time that the case was reopened a second time. Plaintiffs
    argue that they did not renew their motion because the parties were working on a
    settlement. However, this does not explain why they did not file their motion until the
    day before trial. See 
    Gay, 917 F.2d at 772
    . We agree with the District Court that
    allowing the amendment would have prejudiced defendants. In particular, it appears that
    those defendants who had been named as of the day before trial had not participated in the
    November search. Adding such individuals to the case would likely have required
    Defendants to reexamine their trial strategy just one day before the trial was to begin. On
    this record, we find no abuse of discretion.
    We exercise plenary review over the District Court’s grant of summary judgment
    in favor of Ballentine and Robison. Couden v. Duffy, 
    446 F.3d 483
    , 491 n.3 (3d Cir.
    2006). Summary judgment is appropriate only where there is no genuine issue of material
    fact and the moving party is entitled to judgment as a matter of law. Hugh v. Butler
    County Family YMCA, 
    418 F.3d 265
    , 266 (3d Cir. 2005); Fed. R. Civ. Proc. 56. In
    reviewing the grant of summary judgment, we must view the facts in the light most
    favorable to the non-moving party and draw all reasonable inferences in that party’s
    favor. 
    Hugh, 418 F.3d at 267
    . We generally review a grant or denial of a motion for
    reconsideration for abuse of discretion; however, if “the underlying judgment was based
    in part upon the interpretation and application of a legal precept, our review is plenary.”
    United States v. Herrold, 
    962 F.2d 1131
    , 1136 (3d Cir. 1992).
    7
    “Qualified immunity operates . . . to ensure that before they are subjected to suit,
    officers are on notice their conduct is unlawful.” Saucier v. Katz, 
    533 U.S. 194
    , 206
    (2001). “In considering whether qualified immunity applies, a court must first decide
    whether the facts, taken in the light most favorable to the plaintiff, demonstrate a
    constitutional violation. . . . If so, the court next determines whether the constitutional
    right in question was clearly established.” 
    Couden, 446 F.3d at 492
    (internal citations
    omitted). “‘The relevant, dispositive inquiry in determining whether a right is clearly
    established is whether it would be clear to a reasonable officer that his conduct was
    unlawful in the situation he confronted.’” 
    Id. (quoting Saucier,
    533 U.S. at 202). An
    officer is entitled to qualified immunity if his mistake about what the law requires is
    reasonable. 
    Couden, 446 F.3d at 492
    (quoting 
    Saucier, 533 U.S. at 205
    ).
    The key inquiry in granting Ballentine and Robison summary judgment, then, is
    whether they violated plaintiffs’ constitutional rights in executing the May and June 1995
    searches and, if so, whether it would have been clear to a reasonable officer that their
    conduct was unlawful. Those searches were conducted pursuant to an arrest warrant for
    O’Neill’s twenty-year-old stepson, who was a fugitive.
    The Supreme Court has held that “an arrest warrant founded on probable cause
    implicitly carries with it the limited authority to enter a dwelling in which the suspect
    lives when there is reason to believe the suspect is within.” Payton v. New York, 
    445 U.S. 573
    , 603 (1980). We have held that “Payton requires that officers have a reasonable
    8
    belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of
    entry.” United States v. Veal, 
    453 F.3d 164
    , 167 (3d Cir. 2006) (internal quotation
    omitted). “To determine whether the police had probable cause to believe a suspect was
    residing and present in a home, we apply a common sense approach and consider the facts
    and circumstances within the knowledge of the law enforcement agents, when viewed in
    the totality.” 
    Id. at 167-68
    (internal quotations omitted).
    Viewing the facts in this case in the light most favorable to plaintiffs, we conclude
    that Ballentine and Robison had probable cause to believe that O’Neill’s fugitive stepson
    was residing and present in 2910 S. 61st Street on May 30 and June 12, 1995, and
    therefore that the District Court properly determined that they were entitled to qualified
    immunity. It is undisputed that the arrest warrant listed 2910 S. 61st Street as the
    suspect’s address. As such, it was reasonable for Ballentine and Robison to believe that
    the suspect resided at that address.3 It is also undisputed that the May 30 and June 12
    searches were carried out early in the morning and pursuant to information that the
    suspect was in the area. Accordingly, it was reasonable for Ballentine and Robison to
    believe that the suspect was in the residence at the time the searches were executed.
    Plaintiffs fault the District Court for overlooking facts that they characterize as
    3
    1
    Ballentine and Robison did not prepare either the warrant or the affidavit of probable
    cause. It is not clear that they would have had a reason to doubt the warrant’s listing of
    the 2910 S. 61st Street address for the suspect.
    9
    favorable to them, noting the facts cited by the District Court when it initially denied
    Ballentine and Robison summary judgment. However, these facts do not alter the
    reasonableness of Ballentine and Robison’s belief. As noted above, the May and June
    searches were conducted pursuant to a warrant identifying 2910 S. 61st Street as the
    suspect’s address, based on information that the suspect was in the area (as opposed to
    Florida), and O’Neill did not inform the police about the suspect’s more recent addresses
    until after the November 2005 search.
    In addition, while the activity sheets state only that the suspect was in “the area,”
    not specifically at 2910 S. 61st Street, and describe the residence as the suspect’s father’s,
    the suspect was only twenty years old at the time. As defendants were not aware of other
    addresses for the suspect in May and June 1995, they could have reasonably believed that
    a twenty-year-old would be staying with his father if he was in the area. Although the
    suspect was not in the residence at the May search, given that he was a fugitive and that
    new information again suggested he was in the area, the officers could have reasonably
    believed that he would be at 2910 S. 61st Street during the June search.
    Because undisputed facts establish that Ballentine and Robison reasonably
    believed that the suspect resided and was present at 2910 S. 61st Street on May 30 and
    June 12, 1995, the District Court properly granted Defendants’ motion for reconsideration
    and entered summary judgment in their favor. For the same reasons, the District Court
    did not abuse its discretion in denying plaintiffs’ subsequent motion for reconsideration.
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    III. Conclusion
    For the reasons set forth above, we will affirm the orders of the District Court.
    11