                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2003

Crane v. Cumberland
Precedential or Non-Precedential: Non-Precedential

Docket 02-1687




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Recommended Citation
"Crane v. Cumberland" (2003). 2003 Decisions. Paper 709.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/709


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                                                   NOT PRECEDENTIAL
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                    No: 02-1687
                  ______________

       DAVID CRANE; SAMANTHA CRANE,

                              Appellants

                              v.

CUMBERLAND COUNTY, PA; HAMPDEN TOWNSHIP;
         M.L. "SKIP" EBERT, District Attorney;
  ASSISTANT DISTRICT ATTORNEY JOHN ABOM;
  OFFICER STEPHEN SHISSLER; RYAN S. HUNTER;
 THOMAS RYAN STEVENSON; TONY S. DOLIMPIO;
RYAN SCHULLER; DEMITRIOUS KARAGIANNIS a/k/a
       James Karagiannis a/k/a Jimmy Karagiannis;
   PHYLLIS KARAGIANNIS; KARAGIANNIS, INC.;
    SIERRA MADRE a/k/a Sierra Madre Saloon a/k/a
        Sierra Madre Restaurant; John 1-99 DOE
                   _________________
                 ____________________
       Appeal from the United States District Court
          for the Middle District of Pennsylvania
           (D.C. Civil Action No.99-cv-01798)
      District Judge: Honorable William W. Caldwell
                    _______________

       Submitted Under Third Circuit LAR 34.1(a)
                  on January 13, 2003

             Before: ROTH, ALDISERT,
          and FUENTES CIRCUIT JUDGES

            (Opinion filed March 27, 2003)
                                       ____________________

                                             OPINION
                                        ___________________

ROTH, Circuit Judge:

        Appellant David Crane, an African-American, was involved in an altercation in the

parking lot of the Sierra Madre bar with other bar patrons.1 During the altercation, Crane

wielded a knife and injured two men. Crane was tried three times in a criminal prosecution

and the charges were ultimately withdrawn after each prosecution resulted in a hung jury.

Crane and his wife Samantha then filed suit against the prosecuting authorities, the police

(including appellees Hampden Township and Officer Stephen Shissler), several individuals

who participated in the altercation, and the Sierra Madre appellees.2 On appeal, the Cranes

claim that the District Court erred by granting summary judgment to appellees Hampden

Township and Shissler on the Cranes’ 42 U.S.C. §1983 claims of selective denial of

protective services and selective enforcement of criminal law. As to the Sierra Madre

appellees, the Cranes claim that the District Court erred in granting the Appellees’ Fed. R.

Civ. P. 12(b)(6) motion to dismiss (1) the federal claims under 42 U.S.C. §§1981 and

        1
          Crane characterizes the altercation as a “racially motivated attack” by Caucasians
against him and another African-American male.
        2
          The Sierra Madre appellees are comprised of Demitrious Karagiannis, Phyllis
Karagiannis, Karagiannis, Inc., and Sierra Madre (a/k/a Sierra Madre Saloon, Sierra Madre
Restaurant). These appellees are represented by different counsel than the Township and
Shissler and, as the claims against each set of appellees differ, they will be addressed
separately. The remaining defendants have had judgment entered in their favor and are not
part of this appeal.

                                                    2
1982, and (2) the state law claims.

        We have appellate jurisdiction pursuant to 28 U.S.C. §1291. We conduct plenary

review of the District Court’s order granting a motion to dismiss the Cranes’ claims against

the Sierra Madre appellants. See Emerson v. Thiel College, 296 F.3d 184, 188 (3d. Cir.

2002). Further, our review of the District Court’s grant of summary judgment is plenary.

See Carter v. McGrady, 292 F.3d 152, 157 (3d Cir. 2002). “Summary judgment is proper if

there is no genuine issue of material fact and if, viewing the facts in the light most

favorable to the nonmoving party, the moving party is entitled to judgment as a matter of

law.” Id. (citations omitted). “If the [non-moving] party’s evidence is merely colorable, or

is not significantly probative, summary judgment may be granted.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).

                                  Hampden Township and Officer Shissler

        The Cranes claim that the District Court erred in granting summary judgment in

favor of Shissler and Hampden Township on Crane’s section 1983 claims. As to the

selective enforcement of criminal law claim, the Cranes allege that Shissler and Hampden

Township wrongfully prosecuted only Crane and not the Caucasian individuals who were

involved in the altercation. Though we view the facts in the light most favorable to the

Cranes, as the non-moving party, we agree with the District Court that the Cranes have

failed to demonstrate that there are disputed issues of material fact to survive summary

judgment. See Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 (3d Cir. 1990).

A plaintiff, in order to establish a claim of selective prosecution, must show that similarly

                                                       3
situated persons have not been prosecuted and that “the decision to prosecute was made on

the basis of an unjustifiable standard, such as race, religion, or some other arbitrary factor,

or that the prosecution was intended to prevent his exercise of a fundamental right.” See

United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) (citations omitted). The

Cranes have not demonstrated that others were similarly situated, as Crane was the only

person who wielded a knife during the altercation. Nor have they demonstrated that Crane

was prosecuted, as alleged, on the basis of his race. For example, Crane does not dispute

that there was probable cause for his arrest or that there is no evidence of other incidents in

which Hampden Township prosecuted an African-American but did not prosecute persons

of other races.

        The Cranes also claim that Crane was selectively denied protective services under

§1983. Hampden Township and Officer Shissler assert that the Cranes failed to properly

plead this claim before the District Court. In response, the Cranes cite various sections of

their complaint3 to demonstrate that they raised the issue of selective denial of protective

services in their pleadings. They also assert that both § 1983 claims “are like two sides of

the same coin.” Admittedly, the District Court did not fully address the selective denial

claim.4 We have reviewed the record, however, and conclude that the claim is without

        3
         See Compl. ¶ 47, 80, which was incorporated by reference in Count I (claiming a
violation of 42 U.S.C. § 1983). The complaint did not use the terms “selective denial of
protective services” or “selective enforcement.”
        4
        In its February 7, 2002 order, the District Court stated that “plaintiff contends that
summary judgment . . . was erroneous because defendants’ summary judgment motion never
addressed plaintiffs’ selective-prosecution or selective-enforcement claim.” It then

                                                      4
merit. Municipalities do not owe affirmative duties to protect citizens from violence by

private actors. See DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189,

195 (1989). Moreover, there are no facts which support an inference of impermissible

racial motives on the part of Hampton Township and Officer Shissler to establish a claim

for denial of protective services.

        For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment on the § 1983 claims against Hampden Township and Officer Shissler.

                                       The Sierra Madre Appellees

        The Cranes also allege that the District Court erred in granting the Sierra Madre

appellees’ motion to dismiss because their complaint states cognizable federal claims

under 42 U.S.C. §§ 1981 and 1982. In their complaint, the Cranes claimed that Sierra

Madre appellees prevented Crane from exercising his right under §1981 to contract with

them for service. The Cranes allege that a reasonable inference from their complaint is that

Crane’s fear of returning to the Sierra Madre prevents the making of any new contracts with

the bar and that the Sierra Madre appellees interfered with Crane’s § 1981 “privilege” to

come and go from the Sierra Madre at will. We agree with the District Court that while, §

1981 prohibits racially-motivated interference with the right to contract, the party bringing

suit must have sought to enter into a contract for goods or services. The Cranes do not



addressed why the selective enforcement claim failed. In its earlier November 14, 2001
memorandum supporting the grant of summary judgment, the District Court determined
that the § 1983 claims failed because there was probable cause to file charges against
Crane.

                                                     5
claim that Crane was denied service while inside the bar as a patron. The events complained

of followed Crane’s departure from the bar. Crane’s alleged fear is not the direct

interference prohibited by § 1981.

        The Cranes also allege that, as a patron of the Sierra Madre, Crane had a “right to go

and come at pleasure” from the bar without subjection to racially motivated attacks in

violation of § 1982. See United States v. Brown, 49 F.3d 1162, 1167-68 (6th Cir. 1995)

(holding that section 1982 must be construed broadly to encompass the “use” of property;

also citing with approval Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333, 1337-38

(2d Cir. 1974), in which African-American children were impermissibly denied certain

rights to use a swimming pool). To establish a cognizable claim under § 1982, a plaintiff

“must allege with specificity facts sufficient to show...(1) the defendant’s racial animus; (2)

intentional discrimination; and (3) that the defendant deprived plaintiff of his [property]

rights because of race.” Brown v. Phillip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001).

On review, we agree with the District Court that the Cranes failed to allege such specific

facts to survive a motion to dismiss. The Cranes’ reliance on Olzman is misplaced because

the Sixth Circuit’s holding was not based on events following the plaintiffs’ departure from

the swim club. The Cranes’ allegations are insufficient to establish a reasonable inference

of race-based interference on the part of the Sierra Madre appellees with Crane’s use of the

Sierra Madre bar. For the foregoing reasons, we will affirm the District Court’s dismissal

of the § 1981 and 1982 claims.

        Finally, we will affirm the District Court’s denial of the exercise of supplemental

                                                      6
jurisdiction over the Cranes’ state law claims against the Sierra Madre appellees.

                                               Conclusion

        For the foregoing reasons, we will affirm the judgment of the District Court.




TO THE CLERK:

        Please file the foregoing Opinion.




                                                By the Court,




                                                /s/ Jane R. Roth
                                                 Circuit Judge




                                                    7
