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


6-19-2007

Davis v. Bishop
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4593




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"Davis v. Bishop" (2007). 2007 Decisions. Paper 914.
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DLD-253                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 06-4593
                                ________________

                         CHRISTOPHER JOSEPH DAVIS,

                                                    Appellant


                                          v.

                         STEVON A. BISHOP, 98919;
                    DEWEY BEACH POLICE DEPARTMENT;
                       SAM MACKERT, Chief of Police;
                         TOWN OF DEWEY BEACH
                            ________________

                  On Appeal From the United States District Court
                            For the District of Delaware
                             (D.C. Civ. No. 05-cv-0583)
                  District Judge: Honorable Joseph J. Farnan, Jr.
                                ________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   May 31, 2007

               Before: BARRY, AMBRO and FISHER, Circuit Judges

                               (Filed: June 19, 2007 )
                                ________________

                                    OPINION
                                ________________

PER CURIAM

    Christopher Davis appeals an order entered by the United States District Court for
the District of Delaware dismissing his civil rights complaint with regard to some claims

and granting summary judgment in favor of the defendants with regard to others.

Because the appeal lacks arguable merit, we will dismiss it pursuant to 28 U.S.C. §

1915(e)(2)(B).

                                             I.

       In his civil rights action, Davis claims that Steven Bishop, a patrolman in the

Dewey Beach Police Department, used excessive force while arresting him, in violation

of the Fourth Amendment. Specifically, Davis alleges that Bishop flung Davis off the

hood of Bishop’s police car and forcibly cuffed and “manhandled” Davis while arresting

him. He also asserts that Bishop did not allow him to use the bathroom and failed to

properly search him and discover the lighter in his pants pocket, which later “became a

cause of endangerment” to Davis. Davis alleges that the Dewey Beach Police

Department, the Chief of Police, and the Town of Dewey Beach are responsible for

“hiring and supporting” grossly incompetent and violent officers.

       In response to the complaint, the defendants filed motions to dismiss.1 Because

the motions included matters outside of the pleadings, the District Court converted them

into motions for summary judgment, and gave the parties the opportunity to respond.2

The District Court found for the defendants on all claims; this timely appeal followed.

   1
   Defendants Dewey Beach Police Department, the Chief of Police, and the Town of
Dewey Beach filed one motion to dismiss, and defendant Bishop filed another.
   2
    The District Court gave the parties thirty days in which to “present all material
pertinent to a Rule 56 motion.” All parties except Officer Bishop responded.

                                              2
We have jurisdiction under 28 U.S.C. § 1291.

                                              II.

       To determine whether a law enforcement officer’s conduct violates the Fourth

Amendment, a court must evaluate the reasonableness of the conduct in light of factors

including the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officer or others, and whether the suspect is actively resisting

arrest or attempting to evade arrest by flight. See Carswell v. Borough of Homestead,

381 F.3d 235, 240 (3d Cir. 2004). We also consider the duration of the officer’s action,

whether the action took place in the context of effecting an arrest, the possibility that the

suspect may be armed, and the number of persons with whom the officer must contend at

one time. See Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006). In conducting this

determination, courts must balance the “nature and quality of the intrusion on the

individual’s Fourth Amendment interests” versus the countervailing government interests

at stake. Graham v. Connor, 490 U.S. 386, 396 (1989).

       We agree substantially with the District Court’s analysis.3 According to the




   3
    Despite converting the defendants’ motions to dismiss into motions for summary
judgment, the District Court dismissed some claims – Davis’s improper search claim, his
claim concerning not being permitted to use the bathroom, and some of his claims against
the Chief of Police – for failure to state a claim. Although the District Court should have
analyzed defendants’ motions pursuant to Federal Rule of Civil Procedure 56, we need
not remand for such consideration. Davis had adequate opportunity to respond to the
motions for summary judgment, but failed to establish a genuine issue of material fact
with regard to any of the claims. Defendants were entitled to judgment as a matter of law
on all claims.

                                               3
parties, Davis was driving down the center of a two-lane road when he was stopped; he

did not initially respond to the police car siren, and eventually backed into a private

driveway. Davis smelled of alcohol and failed two field sobriety tests; instead of

attempting to perform a third sobriety test, Davis sat on the hood of the police cruiser,

and did not obey Bishop’s instruction to get off the hood of the car. Although Davis was

initially handcuffed, Bishop had removed the cuffs to allow Davis to perform the field

sobriety tests. As the District Court pointed out, although Officer Bishop admitted to

having “flung” Davis from the hood of the police car, a reasonable jury could conclude

that the force used was reasonable given that Bishop was alone and was confronted with

an “uncertain situation” with an individual who was uncooperative and appeared to be

intoxicated.

       Davis’s conduct after he was removed from the hood of the car undermines his

claims about being roughly handcuffed and arrested, and not being permitted to use the

bathroom. After being removed from the hood of the police car, Davis clung to (in his

words) or wrestled with Officer Bishop. Bishop required the assistance of two additional

officers to handcuff Davis. When placed in the back seat of the police vehicle, Davis

disobeyed instructions to stay where he was, removed his seatbelt two times, and

eventually kicked out the rear window of the vehicle. While being transported into the

hospital, Davis attempted to bite another officer. Under these circumstances, we agree

with the District Court that Bishop’s actions in connection with Davis’s arrest do not




                                              4
violate the Fourth Amendment.4

       The District Court also rightly rejected Davis’ novel theory that Bishop’s

“improper” search (during which the officer failed to confiscate a lighter that Davis

possessed) violated Davis’s rights by allowing Davis the opportunity to later set a fire in

his holding cell. Davis’s claims against the other defendants fail for the reasons

articulated by the District Court.

       Accordingly, we conclude that this appeal lacks merit, and we will dismiss it

pursuant to 28 U.S.C.§ 1915(e)(2)(B).




   4
    Although Davis alleged that he suffered nerve damage because he was handcuffed too
tightly, he did not support this claim in his response to defendant’s motions. However,
even assuming Davis’ allegation to be accurate, there is no indication that Davis
complained, or that Officer Bishop ignored obvious signs of his discomfort. Nor did he
show that the handcuffing resulted in damage that required medical attention. See Gilles
v. Davis, 427 F.3d 197, 207-08 (3d Cir. 2005).

                                              5
