                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2006

Zhai v. Cedar Grove Mun
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4836




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"Zhai v. Cedar Grove Mun" (2006). 2006 Decisions. Paper 1056.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-4836
                                  ________________

                                      ANN ZHAI,
                                             Appellant
                                         vs.

                CEDAR GROVE MUNICIPALITY; CEDAR GROVE
               POLICE DEPARTMENT; CEDAR GROVE MUNICIPAL
                 COURT; OFFICER JOHN DOES (2-10) all in their
                    individual and official capacities; RICHARD
                VANDERSTREET, Officer; JOHN KENNEDY, Officer

                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                                 (D.C. No. 04-cv-00524)
                      District Judge: Honorable Faith S. Hochberg
                    _______________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 19, 2006
               Before: FISHER, ALDISERT and WEIS, Circuit Judges.
                               (Filed: May 23, 2006)
                            _______________________

                                     OPINION
                              _______________________

PER CURIAM.

                    Ann Zhai, a pro se plaintiff/appellant, sued the municipality of Cedar

Grove, NJ, its police department, and police officers Kennedy and Vanderstreet for

violations of the Fourth and Fourteenth Amendments under §§ 1983, 1985, and 1986 of
the Civil Rights Act, the Americans with Disabilities Act, and the Rehabilitation Act.

Zhai appeals the District Court’s grant of summary judgment to the Defendants under all

of her causes of action. For the reasons below, we will affirm in part, vacate in part, and

remand for further proceedings.1

                                             I.

              On appeal from summary judgment, we review the evidence in the light

most favorable to Zhai, making all reasonable inferences in her favor. See Podobnik v.

U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir. 2005). Zhai was driving an unregistered,

uninsured car when pulled over by Officer Kennedy. Kennedy told her that the car would

be impounded because it was unregistered and uninsured and asked her to exit the car.

Zhai told Kennedy that she suffered from Post-Traumatic Stress Disorder and a brain

tumor. When Kennedy ordered her out of the car, she repeatedly explained her medical

conditions and personal situation, asking that she be let off the hook.

              Zhai alleges that Kennedy became annoyed, showed her handcuffs and

pepper spray, and then sprayed her with the pepper spray. At that point, she experienced

a panic attack and froze with her hands gripping the steering wheel. She had trouble

breathing and thinking. Officers Ribaudo (who just had arrived on the scene) and

Kennedy pried her out of the car and dragged her to the police cruiser. The officers

claim, and Zhai does not materially dispute, that she resisted leaving her car by writhing


   1
     We have jurisdiction under 28 U.S.C. § 1291. Our review is de novo. Podobnik v.
U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir. 2005).
                                             2
and kicking. The entire incident lasted from 9:00 until approximately 10:00 a.m.

              While at the police station, Zhai lost consciousness and was sent to a

hospital, where she was diagnosed with Panic Attack Disorder. Zhai could talk to the

medics without a problem, but became semi-conscious and unresponsive when questioned

by the police. She was in the hospital from 1:00 to about 4:00 p.m. After returning to the

police station, she was interviewed by Kennedy, Vanderstreet, and supervisor Gary

Dillon. Before she was released, she was charged with resisting arrest, obstruction of

justice, and two counts of aggravated assault on police officers. She was released at 6:00

p.m.

              At a hearing in Cedar Grove Municipal Court, Zhai entered a plea

agreement in which she pled guilty to resisting arrest. She agreed to release the officers

and municipality from civil liability in exchange for the other charges being dropped.

Although the plea bargain called for her to sign the release within one week, Zhai never

signed it and the prosecutor never followed up on it.

                                             II.

              Zhai’s conspiracy claims under 42 U.S.C. §§ 1985-1986 are based on her

allegation that the officers, prosecutor, and judge conspired to bring false charges to

secure a release for any civil liability resulting from the incident. However, these claims

are barred, along with her challenges to the guilty plea itself, by Heck v. Humphrey, 512

U.S. 477 (1994) (holding that hold that, in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

                                              3
unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that

the conviction or sentence has been reversed, expunged, declared invalid, or called into

question by a writ of habeas corpus).

              Relief under Title II of the of the Americans with Disabilities Act, 42

U.S.C. § 12131, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,

requires Zhai to show that she has an impairment that substantially limits at least one

major life activity. See Doe v. County of Centre, PA, 242 F.3d 437, 447 (3d Cir. 2001).

As Zhai did not allege that she was limited in any major life activity, the District Court

properly granted summary judgment on those claims.2

              The District Court also correctly found that Zhai has not made out a prima

facie case for disability discrimination under the Fourteenth Amendment. To succeed on

her equal protection claim, Zhai must show that the officers’ actions were motivated by

an intent to discriminate. Washington v. Davis, 426 U.S. 229, 239-40 (1976). She has

not shown any evidence that the police officers at any time acted out of animus toward



   2
     On appeal, Zhai claims to be reproductively impaired. Even if we were inclined to
consider this claim, which was not made in the District Court, Zhai provides no evidence
or details to support her claim. She also claims that her diagnoses of Post Traumatic
Stress Disorder (“PTSD”) and Temporomandibular Joint Disorder prove that she is
disabled, but fails to specify how those disorders have interfered with a major life
activity. Although Zhai points to gaining some weight and failing the Patent Bar Exam,
these do not qualify as impairments to major life activities. See 29 C.F.R. § 1630.2(i)
(giving examples of major life activities as “caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working”). See also
Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998) (noting that PTSD,
standing alone, is not necessarily an impairment under the ADA).
                                              4
her race, sex, or alleged disability. Neither has she shown that the arresting policies of

the municipality of Cedar Grove had any kind of discriminatory purpose or motivation.

See Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).

Accordingly, we will affirm the judgment of the District Court with regard to the

foregoing claims.

                                             III.

              Finally, we turn to Zhai’s claim that Kennedy used excessive force during

her arrest, a claim which we analyze using the Fourth Amendment’s objective

reasonableness standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1988). This

claim is based on Kennedy’s alleged use of pepper spray.

              The District Court rejected this claim because Zhai only supposed that

Kennedy used pepper spray based on the onset of her panic attack, but did not actually

remember being hit with pepper spray or feeling its effects. The Court relied upon Zhai’s

statement of facts, which stated that she saw “small canister (a container for Pepper

Spray) being applied by one hand aiming at her . . . . She reasonably believed that officer

Kennedy had made shot at her. . . . Immediately, plaintiff was experiencing lack of

oxygen, cold sweets, neurological deficit, shortness of breath, and stomach churning

aches, etc. ” (Pl. Affirmation in Support of Motion for Summary Judgment, paras. 16-

17). Because Zhai presents no evidence that she was sprayed other than her own

statements, the distinction is crucial to whether her claim survives summary judgment

because we assume her eye-witness testimony is true. See Reeves v. Sanderson Plumbing

                                              5
Prods. Inc., 530 U.S. 133, 150 (2000) (credibility determinations are inappropriate on

summary judgment).

              On appeal, Zhai appears to assert that she does, in fact, remember being

sprayed and that the District Court misunderstood her submissions. Summary judgment

is only proper if a review of Zhai’s submissions demonstrate that there is “no genuine

issue of material fact” on this issue. See Fed. R. Civ. P. 56(c). Reviewing Zhai’s

submissions de novo, Fasold v. Justice, 409 F.3d 178, 183 (3d Cir. 2005), we believe that

the District Court did not err in its understanding of her summary judgment papers. The

District Court cannot be faulted for failing to rule on what Zhai did not argue or allege.

              Accordingly, we will affirm the judgment of the District Court.




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