                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2002

Pulice v. Enciso
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3748




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Recommended Citation
"Pulice v. Enciso" (2002). 2002 Decisions. Paper 407.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/407


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          No: 01-3748
                         ______________

                          MARIA PULICE

                                     Appellant


                                v.

  OFFICER J. ENCISO; SGT. T.M. SOLLA; OFFICER DANIEL UNCAPHER;
  CHIEF DONALD HESS, JR., in their capacity as police officers
   and individually; ALLEGHENY TOWNSHIP POLICE DEPARTMENT, a
 municipal agency; ALLEGHENY TOWNSHIP,a municipal corporation;
    PEOPLES NATURAL GAS COMPANY, a Pennsylvania corporation;
            PAUL E. KING, Pennsylvania State Trooper

          Appeal from the United States District Court
            for the Western District of Pennsylvania
              (D.C. Civil Action No. 99-cv-01244)
            District Judge: Honorable Donald J. Lee


                       Argued May 2, 2002

           Before: ROTH and STAPLETON, Circuit Judges
                    POLLAK*, District Judge

                (Opinion filed : July 17, 2002 )


     * Honorable Louis H. Pollak, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation


Leonard E. Sweeney, Esquire (Argued)
976 Perry Highway
Pittsburgh, PA 15237

     Attorney for Appellant

Cheryl Esposito, Esquire (Argued)
Gigler & Joyal
Frick Building, Suite 612
437 Grant Street
Pittsburgh, PA 15219-6003

Stephen J. Poljak, Esquire (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
600 Grant Street
2900 USX Tower
Pittsburgh, PA 15219

Joyce C. Dailey, Esquire (Argued)
The Peoples Natural Gas Company
625 Liberty Avenue
Pittsburgh, PA 15222-3197

Calvin R. Koons (Argued)
Office of Attorney General of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120

Rodney M. Torbic
Office of Attorney General of Pennsylvania
564 Forbes Avenue
Manor Complex, 5th Floor
Pittsburgh, PA 15219

     Attorneys for Appellees



                         O P I N I O N


ROTH, Circuit Judge:

     Plaintiff Maria Pulice appeals the District Court’s grant of summary judgment
dismissing her claims brought against defendants, Officer Enciso et. al, under 42 U.S.C.
 1983. We agree with the District Court that Ms. Pulice has failed to produce record
evidence of a genuine issue of material fact from which a reasonable jury could rule in
her favor on any count, and that the defendant Officers are entitled to qualified immunity.
Thus, for reasons explained in more detail below, we will affirm the District Court’s
entry of summary judgment in favor of defendants.
                    I.   Facts and Procedural History.
     The underlying dispute arises from Ms. Pulice’s opposition to an easement on her
property. The easement allows the Peoples Natural Gas Company to provide gas to Ms.
Pulice’s neighbors by running and servicing a pipe and gas meter on her property and on
the public right of way along her property. This suit is not the first litigation over
easements. In 1993, the Court of Common Pleas of Westmoreland County, Pennsylvania
granted a permanent injunction forbidding the Pulices from interfering with Peoples’
right of way on the Pulice’s property. The permanent injunction was affirmed on appeal.
     Problems resumed on December 4, 1997, however, when Peoples was called to
service the gas line because it had been cut by appellant’s husband, Nunziato Pulice, Sr.
The Pulices refused to allow Peoples to enter their property, and, as a result, the gas
company contacted the Allegheny Township Police Department. The Township faxed a
letter to the Pulice’s lawyer, instructing him that his clients were not to interfere with the
gas company’s right of way. When Peoples returned the next day, however, it was still
barred from the property by the Pulices. It then called the Allegheny Township Police to
the scene.
     Officer Donald Hess told the Pulices that they would be arrested if they continued
to obstruct Peoples. The Pulices did not budge, and the officers proceeded to arrest
them. As the officers were removing Nunziato Pulice from the scene, Ms. Pulice
attempted to grab the gun from Officer Enciso’s holster. The officers responded by
subduing and handcuffing her. Ms. Pulice claims that she was thrown face down on the
ground, and beaten with a hard object. Medical reports, however, show only a bruise on
her back and leg and an abrasion on her left hand. This incident was videotaped by the
Pulices’ neighbor, Clark Keller.
     As a result of her actions, Ms. Pulice was charged with disorderly conduct under
18 Pa. C.S. 5502(a)(1), resisting arrest under 18 Pa. C.S. 5104, simple assault under
18 Pa. C.S. 2701(a)(3), and obstructing a public passage under 18 Pa. C.S. 5507(a).
She ultimately pled guilty to simple assault and obstructing a public passage. She was
sentenced to one year of probation and ordered to undergo a mental health evaluation.
     Ms. Pulice wrote a letter to Paul Evanko, the Pennsylvania State Police
Commissioner, to complain that she had been beaten by the defendant Officers. Trooper
Paul King was assigned to investigate this matter and, after reviewing the videotape of
the Pulice’s arrest and interviewing many witnesses, he filed a charge of False Reports to
Law Enforcement Agencies against Ms. Pulice. This charge was ultimately dismissed at
a habeas corpus hearing in the Court of Common Pleas of Allegheny County,
Pennsylvania.
     As a result of her arrest and prosecution, Ms. Pulice filed a 1983 suit in federal
court. She named as defendants Officers Enciso, Hess, and two other officers (in their
capacity as police officers and individually), as well as Allegheny Township, the
Allegheny Township Police Department, the Peoples Natural Gas Company, and
Trooper King. Her complaint alleged that the defendant Officers violated her rights
under the First, Fourth, Fifth and Fourteenth Amendments, that the Township was also
liable for the defendant Officers’ actions, and that the defendant Officers conspired with
Peoples and Trooper King to violate her civil rights.
     After discovery, the District Court entered summary judgment dismissing Pulice’s
 1983 claims and dismissing her pendent state law claims without prejudice. This
appeal followed.
               II.     Jurisdiction and Standard of Review.
     The District Court had subject matter jurisdiction pursuant to 28 U.S.C. 1331
and 28 U.S.C. 1343(a)(3). We have appellate jurisdiction, under 28 U.S.C. 1291, over
the District Court’s final order granting summary judgment for defendants.
     The District Court’s grant of summary judgment is subject to plenary review.
Berner Int’l Corp. v. Mars Sales Co., 987 F.2d 975, 978 (3d Cir. 1993). When ruling on
summary judgment, inferences to be drawn from underlying facts in the evidentiary
record must be viewed in the light most favorable to the plaintiff. Id. Federal Rule of
Civil Procedure 56(c) "mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
                         III.      Discussion.
     A.   Claims against Defendant Officers.
     Ms. Pulice appeals the District Court’s decision to grant summary judgment on the
following claims brought against the defendant Officers: Excessive force claims brought
under the Fourth, Fifth, and Fourteenth Amendments; retaliation claims for exercise of
her rights under the First Amendment; and false arrest, false imprisonment, and
malicious prosecution claims. As explained below, we will affirm the District Court’s
decision to grant summary judgment on all of these claims.
     1.   Excessive force claims.
     We agree with the District Court that the defendant Officers are entitled to
qualified immunity from Ms. Pulice’s claim that they violated the Fourth Amendment by
using excessive force during her arrest. The Supreme Court has made clear that courts
addressing qualified immunity for an excessive force claim must resolve the following
two questions: First, when the facts are taken in the light most favorable to the plaintiff,
do they show that the officer’s conduct violated a constitutional right? Saucier v. Katz,
533 U.S. 194, 201 (2001). Second, is the right clearly established insofar as a reasonable
official would understand that his actions are violating that right? Id. at 202.
     According to the undisputed facts of this case, as Nunziato Pulice was being
arrested, Maria Pulice attempted to take the gun from Officer Enciso’s holster. The
officers responded by subduing and handcuffing her. Ms. Pulice claims that she was
thrown face down on the ground, and beaten with a hard object. Almost all of this
altercation was recorded on videotape. Medical reports show only a bruise on her back
and leg and an abrasion on her left hand.
     In applying the Saucier test to these facts, the District Court found that it was
reasonable for the officers to conclude that they were acting with an appropriate amount
of force when they subdued Ms. Pulice as they did.
     The Supreme Court has noted that "not every push or shove" violates the Fourth
Amendment and that the right to use a certain degree of force must be analyzed in light
of the "facts and circumstances of each particular case, including the severity of crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether [the suspect] is actively resisting arrest." Graham, 490 U.S. at 96. In
this case the bulk of the facts and circumstances surrounding Ms. Pulice’s arrest have
been recorded on videotape. In light of the videotape and the facts, we agree with the
District Court that the officers’ actions in subduing Ms. Pulice after she attempted to take
Officer Enciso’s gun did not violate a clearly established constitutional right. Under the
circumstances, the officers were justified in reacting as they did to Ms. Pulice’s actions
and no unreasonable force was employed. See Saucier, 121 U.S. at 2159-60.
               2.   Retaliation claim.
     We also agree with the District Court that the facts underlying Ms. Pulice’s
retaliation claim fail to establish a violation of her First Amendment rights. A First
Amendment retaliation claim requires a plaintiff to prove three things: first, that she
engaged in protected activity; second, that the government responded with retaliation;
third, that this protected activity was the cause of the government’s retaliation. Anderson
v. Davila, 125 F.3d 148, 161 (3d Cir. 1997).
     Ms. Pulice claims that she was arrested in retaliation for standing on her property
and pronouncing her views that the Gas Company was not entitled to enter. She has
failed, however, to provide a factual basis for her retaliation claim. She was not arrested
for expressing her views, but because she and her husband acted unlawfully when they
physically obstructed the Gas Company’s right of way. Thus, we will affirm the District
Court’s grant of summary judgment for this claim.
               3.   False arrest, false imprisonment and malicious prosecution claims.
     Under 1983, false arrest, false imprisonment, and malicious prosecution claims
require a showing that the arrest, physical restraint, or prosecution was initiated without
probable cause. We agree with the District Court that Ms. Pulice failed to proffer facts
showing a lack of probable cause for her arrest, physical custody, and prosecution: There
is no dispute that she obstructed Peoples’ access to a valid right of way and that such
obstruction is a misdemeanor under Pennsylvania law. See 18 Pa. C.S. 5507. We will
affirm the District Court’s grant of summary judgment on these claims.
     B.   Claims against Allegheny Township.
     Ms. Pulice also appeals the District Court’s grant of summary judgment on her
claims against Allegheny Township. She claims that the Township should be held liable
for the defendant Officers’ actions taken pursuant to the Township’s policies. In light of
our conclusion that the defendant Officers did not violate a constitutional right, however,
we will affirm the District Court’s dismissal of claims against the Township.
     C.   Conspiracy claims against Trooper King and Peoples Gas Company.
     Finally, Ms. Pulice appeals based on her claims that both Trooper King and the
Peoples’ Gas Company conspired with the defendant Officers to violate her
constitutional rights. We agree with the District Court that Ms. Pulice failed to produce
sufficient evidence of an agreement to overcome summary judgment on her conspiracy
claims. We therefore affirm the District Court’s dismissal of these claims.
                         IV.      Conclusion.
     Ms. Pulice has failed to provide sufficient evidence to overcome summary
judgment on any of her 1983 claims. We will affirm the District Court’s order
dismissing these claims on summary judgment.



TO THE CLERK:

     Please file the foregoing Opinion.



                              By the Court,



                              /s/ Jane R. Roth
Circuit Judge
