Hughes v. Shestakov , 76 F. App'x 450 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-30-2003
Hughes v. Shestakov
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3317
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3317
JOHN HUGHES,
Appellant
v.
DEBORAH SHESTAKOV, a/k/a Debbie Cannon, a/k/a Debbie Shestakoo;
JOHN SHESTAKOV, a/k/a Frank Shestakoo;
DEBBIE SHESTAKOV MARTIN, a/k/a Debbie Shestakoo;
RICHARD CANNON, OFFICER;
CITY OF PHILADELPHIA;
COLLEEN PRATT, a/k/a Mrs. John Devlin;
GORDON PRATT; SERGEANT RAWLINGS;
OFFICER SPEARMAN; OFFICER WILLIAMS
JENETTE CARTER
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 00-cv-06054
(Honorable John R. Padova)
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges
(Filed September 30, 2003 )
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this action under 42 U.S.C. § 1983, plaintiff John Hughes brought claims of
false arrest, excessive force, and conspiracy to commit false arrest and excessive force
against several identified neighbors and police officers, as well as against the City of
Philadelphia. The District Court granted defendants summary judgment on all federal
claims, and declined to exercise jurisdiction over the state claims. Summary judgment is
proper “if there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Because there is no
genuine issue of material fact, we will affirm.1
I.
This lawsuit arises as a result of a dispute between John Hughes and various
neighbors on Richmond Street, in the Port Richmond neighborhood of Philadelphia. In
early 2000, Hughes complained to his neighbors John and Deborah Shestakov that they
monopolized the street’s public parking places. The Shestakovs refused to move their
1
The District Court correctly found that a party may not raise, in response to a motion
for summary judgment, claims which were not raised in the initial pleadings. See, e.g.,
Rand v. Mannesmann Rexroth Corp., 2002 WL 55039, at *8 (E.D. Pa. Apr. 15, 2002).
In his second amended complaint Hughes fails to assert that the policies, practices or
customs of the police department and the City of Philadelphia in the form of Police
Directive 60 are unconstitutional. Monell v. New York City Dep’t of Soc. Servs., 436
U.S. 658 (1978).
2
vehicles and Hughes subsequently blocked their pickup truck with trash cans containing
cinder blocks and heavy debris. Deborah Shestakov, who is the sister of a police officer
in the 24th District of Philadelphia, telephoned the police to complain of Hughes’s
behavior. Officer Richard Cannon, Shestakov’s brother, was one of the officers who
responded to the Shestakov’s call. Cannon directed Hughes to remove the trash cans
immediately or be subject to a ticket.
Subsequent to this initial call, both Hughes and the Shestakovs called the 24th
District on numerous occasions to report property damage and harassment. Officer
Cannon did not respond to any of these subsequent calls.
On July 27, 2001, Deborah Shestakov called the 24th District to report that she
had witnessed Hughes throwing an object at her car’s front windshield, causing a crack.
Officers Brian Spearman and Jenette Carter responded to the call and arrested Hughes
after conferring with their supervisor, Sergeant Frank Rawling. Hughes claims he had
difficulty getting into the police van and endured a “rough ride” to the station. After
signing a citation prepared by Officer Spearman, Hughes was released.
This suit alleges claims of false arrest, excessive force, and conspiracy. The
District Court granted summary judgment to defendants and Hughes timely appealed.
II.
Hughes was arrested for criminal mischief, which is a summary offense.
Philadelphia Police Department Directive 60 authorizes police officers to take into
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custody anyone charged with a summary offense. App. at 99 (“Philadelphia Police Dept.
Directive 60, Subject: Summary Offenses,” Sept. 6, 1984). Hughes contends the police
directive, which does not require an arrest warrant and permits an arrest based on the
testimony of one witness, violates his Fourth Amendment rights. But the Fourth
Amendment does not require an arrest warrant for a minor criminal violation. Atwater v.
City of Lago Vista, 532 U.S. 318, 341 n. 11 (2001) (“We need not, and thus do not,
speculate whether the Fourth Amendment entails an ‘in the presence’ requirement for
purposes of misdemeanor arrests.”).
The Shestakovs had prior disputes with Hughes. Hughes contends that Deborah
Shestakov’s credibility is suspect and her testimony alone cannot establish probable
cause. We evaluate the officers’ decision to make a warrantless arrest under a standard
of probable cause:
The determination that probable cause exists for a warrantless arrest is
fundamentally a factual analysis that must be performed by the officers at
the scene. It is the function of the court to determine whether the objective
facts available to the officers at the time of arrest were sufficient to justify a
reasonable belief that an offense [had been] committed.
Sharrar v. Felsing, 128 F.3d 810, 817 (3d Cir. 1997).
We agree with the District Court that there were sufficient objective facts for the
police officers, upon arriving on the scene, to reasonably believe that Hughes had caused
at least some of the damage to the windshield. This is sufficient to establish probable
cause. Summary judgment was thus proper on the false arrest claim.
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III.
In analyzing an excessive force claim, the proper test is objective reasonableness.
Graham v. Connor, 490 U.S. 386, 394 (1989). After arresting Hughes, the police
officers escorted him into the back of a police van which was equipped to carry around
fifteen people. Hughes claims to have bumped his head on the police van and had his
shoulders jerked by the officers. He also says the officers gave him a “rough ride” in the
van. Hughes asserts that the very use of this type of police van was a police department
conspiracy to intimidate and harm those brought into custody. Under a standard of
objective reasonableness, Hughes has not made out a claim of excessive force. Summary
judgment on the excessive force and conspiracy claims was proper.2
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
2
Because we find no constitutional violations, we do not reach the question of
qualified immunity.
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TO THE CLERK:
Please file the foregoing opinion.
/s/Anthony J. Scirica
Chief Judge
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