                                                  NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                  _________________

                        No. 16-4179
                     _________________

                     MARK J. CARTER,

                                   Appellant

                              v.

              THE CITY OF PHILADELPHIA;
POLICE OFFICER ROLAND M. BUTLER, BADGE NUMBER 2922;
      POLICE OFFICER MAMMOUA, BADGE NO. 4805;
            RUFUS STOKES; FAYE PATERSON;
              POLICE OFFICERS JOHN DOE,
             NUMBERS 1 THROUGH FIFTEEN,
              BADGE NUMBERS UNKNOWN;
            JOHN ROE'S, ONE THROUGH TEN
                   _________________

        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                  (D.C. No. 2:15-cv-01052)
           District Judge: Hon. Legrome D. Davis
                     _________________

         Submitted Under Third Circuit L.A.R. 34.1(a)
                    September 15, 2017

   Before: VANASKIE, RENDELL, FUENTES, Circuit Judges

              (Opinion Filed: December 6, 2017)
                                   _________________

                                       OPINION*
                                   _________________

FUENTES, Circuit Judge.

       Mark Carter appeals the District Court’s dismissal of his claim for denial of access

to courts and its grant of summary judgment in favor of Butler and Mammoua on his

excessive force and assault and battery claims. For the following reasons, we will affirm.

                                            I.

       Because we write primarily for the parties, we discuss only those facts necessary to

our decision.

       In March 2013, Carter was involved in a traffic accident in the City of Philadelphia.

Before the police arrived, Carter left his car and began walking away from the scene. He

was detained by at least one non-police individual in the area. According to Carter,

numerous police officers then arrived and “beat [him].”1 Carter was arrested for driving

under the influence.

       In 2015, Carter sued the City of Philadelphia (“City”) and police officers Butler and

Mammoua, among others. In the first count of his Amended Complaint, Carter alleged

that the City violated his right to access the courts because its procedures prevented him

from identifying all of the officers involved in his arrest. He based his allegation on the

Philadelphia Police Department’s Overtime Management Memorandum and its Standard


*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Supp. App. 18 (29:1).
                                              2
Operating Procedures. The Overtime Management Memorandum directs that only those

officers “necessary for the successful outcome of the case” be listed on arrest and

investigative reports.2 Similarly, the Standard Operating Procedures require that “each

component of case management is handled by as few police personnel as possible, as

needed for the successful prosecution of the case.”3 The District Court granted the City’s

Motion to Dismiss Carter’s denial of access to courts claim.

       Carter’s Amended Complaint also included one count of excessive force and one

count of state law assault and battery against Butler and Mammoua. During his deposition,

Carter testified that the police officers who “beat” him were “black.”4 He also testified that

he could not recall how many officers hit him nor what any of the officers looked like.

Furthermore, the factual record reflects that Carter could not identify Butler from a photo

array of eight African American police officers, that Mammoua is Caucasian, and that

Butler and Mammoua completed the incident and arrest reports regarding Carter’s arrest

and the preceding events. The District Court granted summary judgment in favor of Butler

and Mammoua on Carter’s excessive force and assault and battery claims. This appeal

followed. 5


2
  App. 64a.
3
  App. 68a.
4
  Supp. App. 18 (29:13-14; 30:13-15).
5
  The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have
jurisdiction under 28 U.S.C. § 1291. Our review of a grant of a motion to dismiss is
plenary, and for the purpose of such review, we accept the factual allegations in the
operative complaint as true. Allen v. DeBello, 861 F.3d 433, 437–38 (3d Cir. 2017). Our
review of a grant of summary judgment is also plenary. Williams v. Pennsylvania Human
Relations Comm'n, 870 F.3d 294, 297 n.11 (3d Cir. 2017). Summary judgment is
appropriate when, viewing the facts in the light most favorable to the non-moving party,
                                              3
                                            II.

       We will first examine Carter’s argument that the District Court erred in dismissing

his claim for denial of access to courts and then turn to Carter’s appeal of the District

Court’s grant of summary judgment.

                                           A.

       Carter asserts that his right of access to courts was violated by the City’s procedures

delineating that only officers necessary to the success of a case be listed on arrest reports

because such procedures prevented him from identifying, suing, and deposing all of the

officers who were involved in his assault. The right of access to courts is a constitutional

right that is grounded in the Privileges and Immunities Clause of Article VI, the Petition

Clause of the First Amendment, the Fifth Amendment Due Process Clause, and the Due

Process and Equal Protection Clauses of the Fourteenth Amendment.6 We have explained

that “only prefiling conduct that either prevents a plaintiff from filing suit or renders the

plaintiff's access to the court ineffective or meaningless constitutes a constitutional

violation.”7 The City’s procedures at issue here do neither.

       As the District Court discussed, the City’s procedures did not prevent Carter from

filing suit because he successfully filed the instant lawsuit. Similarly, Carter’s access to



the moving party demonstrates that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Id; Fed. R. Civ. P. 56(a). “[T]he burden on the
moving party may be discharged by ‘showing’—that is, pointing out to the district court—
that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986).
6
  Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002).
7
  Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir. 2003).
                                                4
the court was not rendered ineffective or meaningless by the City’s procedures. We have

previously expressed our reluctance to allow plaintiffs to recover on denial of access to

courts claims for “any cover-ups or discovery abuses after an action has been filed

inasmuch as the trial court can deal with such situations in the ongoing action.”8 Although

the City’s procedures were in place before Carter filed this action, the same principle

applies. Carter’s access to the court was not ineffective or meaningless because he could

have dealt with his uncertainty about which officers were present at the scene of his arrest

in his proceedings before the District Court. Specifically, Carter could have attempted to

identify other officers through discovery and then sought to join them in the present action.

In fact, Carter did learn the names of two officers who were involved in his arrest during

Butler’s deposition. He did not try to join the officers in this action, and he does not explain

why he could not have done so. Accordingly, we conclude that Carter’s access to the court

was not ineffective or meaningless, and we will affirm the District Court’s dismissal of his

claim for denial of access to courts.

                                            B.

          We will also affirm the District Court’s grant of summary judgment on Carter’s

excessive force and assault and battery claims. The District Court concluded that Butler

and Mammoua had met their burden of showing that there was an absence of evidence to

support Carter’s case. On appeal, Carter challenges the District Court’s conclusion and

also argues that Butler and Mammoua are liable because they failed to intervene to stop



8
    Id.
                                                 5
the assault. We need not address Carter’s failure-to-intervene argument because he has

waived it by not raising it in the District Court.9

         Turning then to the District Court’s grant of summary judgment, we conclude that

the District Court properly held that there was an absence of evidence to support Carter’s

excessive force and assault and battery claims. In fact, there is no evidence that supports

Carter’s assertions that Butler and Mammoua had any physical contact with him, let alone

any evidence that they used excessive force against him. Instead, the record contradicts

Carter’s claims: Carter could not identify Butler in a photo array, and Carter testified that

the officers who assaulted him were African American, but Mammoua is Caucasian. Carter

argues that a genuine dispute of material fact exists because Butler and Mammoua wrote

the reports detailing the events of the night of his arrest. However, even viewed in the light

most favorable to Carter, this fact has no bearing on whether Butler and Mammoua

personally used force of any kind against Carter. Thus, we will affirm the District Court’s

grant of summary judgment on Carter’s excessive force and assault and battery claims.

                                            III.

         For the foregoing reasons, we will affirm the District Court’s dismissal of Carter’s

denial of access to courts claim and its grant of summary judgment in favor of Butler and

Mammoua on Carter’s excessive force and assault and battery claims.




9
    Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d Cir. 2009).

                                               6
