                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-2007

Cherry v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1322




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"Cherry v. Philadelphia" (2007). 2007 Decisions. Paper 1645.
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                                                       NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                             No. 06-1322



                   MONICA LATOYA CHERRY,
                                  Appellant

                                   v.

     CITY OF PHILADELPHIA; POLICE COMMISSIONER;
    OFFICE OF DISTRICT ATTORNEY OF PHILADELPHIA



            On Appeal from the United States District Court
               for the Eastern District of Pennsylvania
                        (D.C. No. 04-cv-01393)
               District Judge: Hon. Thomas N. O’Neill



              Submitted Under Third Circuit LAR 34.1(a)
                          January 19, 2007

  Before: SLOVITER, RENDELL, and CUDAHY,* Circuit Judges

                       (Filed February 8, 2007)

                              OPINION




        *
            Hon. Richard D. Cudahy, United States Senior Circuit
  Judge for the United States Court of Appeals for the Seventh
  Circuit, sitting by designation.
CUDAHY, Circuit Judge.

       Monica Cherry appeals the district court’s grant of summary judgment to

Philadelphia Police Commissioner Sylvester Johnson on her claim that Johnson led a plot

to put Cherry at risk of murder in order to further a police investigation. Because Cherry

has not presented sufficient evidence to raise a genuine issue of material fact on her

claims, we affirm.

       Because we write primarily for the parties, who are already aware of the

circumstances of the case, we will set forth only those facts necessary to our decision.

Cherry alleges a complicated course of police misconduct. On February 25, 2002, Cherry

witnessed a gunfight between rival drug gangs at a “speakeasy,” a private house that

doubled as a bar. Two days later Philadelphia police officers seized her from her home

and interrogated her about the shootings, but she told them she had quickly fled the scene

once the shooting started (App. at 54), and refused to testify.

       Then, Cherry alleges, the police borrowed a tactic used by Detective Sonny

Crockett in the pilot episode of Miami Vice: although Cherry was not cooperating, the

police, at the direction of (then Acting) Police Commissioner Sylvester Johnson, the only

remaining defendant in the case (see App. at 20, 34), gave Philadelphia’s criminal

underworld the impression that she was. The idea, Cherry asserts, was that by identifying

Cherry as a cooperating witness, the police would increase the risk that the speakeasy

shooters would murder Cherry to keep her from testifying, which risk in turn would

ideally force Cherry to actually cooperate with the police in exchange for protection from

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the gang. As it turned out, the result was not ideal; Cherry was shot in the back of the

head by an unidentified person while walking near her house with a friend on March 30,

2002. Cherry survived, but suffered severe brain damage.

       On appeal, Cherry focuses on her claim that Johnson violated the Due Process

Clause of the Fourteenth Amendment by deliberately putting her at risk of murder.

(Though her brief sometimes obscurely gestures toward other claims or theories, we agree

with the defendants that all other issues have not been adequately argued and are

forfeited. See, e.g., Travitz v. Northeast Dep’t ILGWU Health & Welfare Fund, 13 F.3d

704, 711 (3d Cir. 1994).) She invokes the “state-created danger” doctrine, under which

government actors violate the Due Process Clause when, acting in an egregious manner

that shocks the conscience, they create an opportunity for harm to befall a plaintiff with

which they have some sort of relationship and foreseeable, direct harm does occur.

Schieber v. City of Philadelphia, 320 F.3d 409, 416-17 (3d Cir. 2003), citing Kniepp v.

Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). Since Cherry is suing the supervisory official

Johnson rather than whichever police officers allegedly put the plot into action, and since

respondeat superior does not apply to § 1983 claims, she must additionally also show

evidence tying Johnson to the plot. To hold Johnson liable in his personal capacity,

Cherry must show that the police acted at Johnson’s personal direction or that Johnson

had knowledge of and acquiesced in the plot. Andrews v. City of Philadelphia, 895 F.2d

1469,1478 (3d Cir. 1990). To hold Johnson liable in his official capacity (i.e., to hold the

City of Philadelphia liable), Cherry must show that the police acted pursuant to a city

                                             3
policy or custom. Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658,

690-91 (1978).

       The district court held that Johnson would be liable if he had in fact directed the

police to identify Cherry as a cooperating witness and in so doing caused her shooting,

but that Cherry had failed to present evidence that he had done so. We agree with the

district court. As Cherry’s counsel frequently points out, summary judgment is

appropriate only where the record shows that “there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). Once the movant explains to the court why it believes there is no genuine issue of

material fact, the nonmovant must demonstrate evidence in the record that would permit a

reasonable factfinder to find in her favor. Celotex Corp. v. Catrett, 477 U.S. 317, 332-34

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986); Scheidemantle v.

Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006).

       In the present case, Johnson notes a famine of evidence tying him to the alleged

plot, establishing that the plot existed or even showing that the police failed to protect

Cherry from the speakeasy shooters. Johnson observes, and Cherry does not dispute, that

the record lacks affidavits on these subjects even from Cherry herself. The only record

evidence to which Cherry draws our attention is a pair of Philadelphia Inquirer articles

from April 5 and April 6, 2002, about a week after Cherry was shot, one of which quotes

Johnson as saying that “[o]ne of those witnesses [who was cooperating] was shot

Saturday, shot in the head.” (App. at 84-86.) The article shows that Johnson stated that

                                              4
Cherry was a cooperating witness after she suffered her injuries, but the statement

obviously could not have caused her already-suffered injuries and indeed only identified

Cherry to those who already knew she had been shot. Cherry argues that the article

demonstrates that Johnson had motive and opportunity to authorize the alleged plot

against her (Br. of Appellant at 7), and that her injuries were a foreseeable outcome of the

plot (Reply Br. of Appellant at 4). But that is not enough to get her to trial without some

evidence that the alleged plot actually existed; it is as though one were to seek a murder

trial armed with evidence of the defendant’s motive and opportunity to commit a

hypothetical murder, but without a body or any evidence that a murder had taken place.

The article is by itself insufficient to permit a reasonable factfinder to infer both that there

was a plot to put Cherry in danger before her shooting and that Johnson was aware of or

in charge of it.

       Even assuming there was evidence in the record to back up Cherry’s other specific

allegations, she still might not make it to trial on her state-created danger claim. Cherry

claims that Johnson had the police frequently call and visit her and cites to a pair of

newspaper articles, neither apparently in the record. A March 16, 2002 Philadelphia

Daily News article quoted a police officer (not Johnson) as stating that police had “talked

with witnesses” but that they were “reluctant to talk,” and police were offering a $5,000

reward to loosen tongues. Erin Einhorn, City posts 5G reward in speakeasy killings,

Phila. Daily News, March 16, 2002. In a March 19, 2002 Philadelphia Inquirer article,

another police officer (again not Johnson) was quoted as saying the reward “helped point

                                               5
police to” two suspects. Thomas J. Gibbons, Two sought in speakeasy shootings, Phila.

Inquirer, March 19, 2002. Without further explanation it is unclear why the speakeasy

shooters would assume from such vague information that Cherry was the one who had

given them up. Were the police also visiting other potential witnesses (“neighborhood

residents,” plural)? If so, why would the criminals focus on Cherry? (Cherry claims,

again without evidence, that she was the only witness to testify at the eventual criminal

trial, but the police might have checked other leads beforehand; Cherry admits that she

herself identified other potential witnesses to the police. (Br. of Appellant at 8, App. at

53).) Why would the criminals believe Cherry was willing to testify merely from the fact

that police were frequently visiting her house? Wouldn’t that indicate, instead, that

Cherry wasn’t willing to testify and that the police were frequently coming to argue with

her and change her mind?

       True, the shooters might have targeted Cherry (and probably did) out of fear that

she might cooperate, but Cherry does not allege that the speakeasy shooters were unaware

that she was a potential witness before the police acted, only that the police suggested she

was a cooperating witness who was willing to testify. Indeed, Cherry appears to say that

everyone in her neighborhood already knew that she was a witness before the police said

anything. (Br. of Appellant at 9.) Even assuming that the shooters only learned that

Cherry was a potential witness from the police visits, it is doubtful whether any

reasonable factfinder could find the police decision to speak to potential witnesses to a

shootout, rather than simply let the crime go uninvestigated, was so egregious as to shock

                                              6
the conscience. Cf. County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) (describing

the conflicting obligations of police officers in a high-speed chase to enforce the law and

to protect the public from the chase).

       At any rate, all that is irrelevant speculation; Cherry has not produced sufficient

evidence to permit a reasonable factfinder to conclude that those events occurred or that,

if they did, Johnson was involved. Cherry attempts to excuse her failure of proof by

challenging, for the first time in her reply brief, the district court’s denial of a pair of

motions to compel Johnson to answer to certain discovery requests. (Reply Br. of

Appellant at 6-8.) However, arguments raised for the first time in a reply brief are

forfeited. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005), cert denied, 74

U.S.L.W. 3121 (U.S. Jan. 17, 2006) (No. 05-244). Even if she had made the argument

earlier, the argument is forfeited by being insufficiently developed–it is entirely unclear

from Cherry’s brief what sort of evidence she hoped to discover, or why the district court

might have abused its discretion in denying her motions to compel. If Cherry wished to

appeal on the basis of discovery errors, she should have adequately explained those errors

to the court in her opening brief.

       There was no genuine issue of material fact on the record below, and Johnson was

entitled to judgment as a matter of law. We therefore affirm summary judgment.




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