                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2004

Feldman v. Comm College Alghny
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-3355




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                                                      NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ___________

                          No. 00-3355
                          ___________

                        LEE FELDMAN,

                                          Appellant

                                 v.

   COMMUNITY COLLEGE OF ALLGHENEY (CCAC), a public
                and municipal entity and its agents;
             DR. JOHN M . KINGSMORE, President;
            DR. J. DAVID GRIFFIN, Executive Dean;
          JOE DVORAK, Director of Computer Services;
         DAWN GALLIM ORE, Computer Lab Instructor;
               ALLIED SECURITY, and its agents;
     LT. WILLIAMS, SECURITY GUARD, AND A SECOND
               UNKNOWN SECURITY GUARD;
      CITY OF PITTSBURGH, A Public and Municipal Entity;
       SAVELLI, Police Officer; HART, POLICE OFFICER ,
AND A THIRD UNKNOWN BLOND OFFICER, INDIVIDUALLY AND
 IN THEIR CAPACITIES AS POLICE OFFICERS OF THE CITY OF
              PITTSBURGH; LAMONT RICHARD

                          ___________

          On Appeal from the United States District Court
             for the Western District of Pennsylvania

         District Court Judge: The Honorable Donald J. Lee
                        (D.C. No. 97-cv-1251)
                            ___________




                                1
             Argued on October 23, 2003

Before: ALITO, FUENTES and BECKER, Circuit Judges.

           (Opinion Filed: January 6, 2004)
            ________________________

             OPINION OF THE COURT
            ________________________

                                     Jerold S. Solovy
                                     Barry Sullivan
                                     Timothy A. Hudson (argued)
                                     Jenner & Block, LLC
                                     One IBM Plaza
                                     Chicago, Illinois 60611

                                              Attorneys for Appellant
                                              Lee Feldman

                                     Patrick L. Mechas
                                     Carol L. Hesz (argued)
                                     Sherry L. Halfhill
                                     Burns, White & Hickton, LLC
                                     120 Fifth Avenue, Suite 2400
                                     Pittsburgh, PA 15222-3001

                                              Attorneys for Appellees
                                              Community College of
                                              Allegheny County, John
                                              Kingsmore, J. David
                                              Griffin, Joe Dvorak and
                                              Dawn Gallimore

                                     A. Bryan Campbell (argued)
                                     220 Grant Street
                                     Sixth Floor
                                     Pittsburgh, PA 15219




                          2
                                                              Attorney for Appellees
                                                              Police Officers Savelli and
                                                              Hart

                                                       Susan E. Malie (argued)
                                                       Jacqueline R. Morrow
                                                       City of Pittsburgh Department of
                                                       Law
                                                       313 City-County Building
                                                       Pittsburgh, PA 15219

                                                              Attorneys for Appellee the
                                                              City of Pittsburgh

                                                       Bruce P. M erenstein
                                                       Schnader Harrison Segal & Lewis
                                                       LLP
                                                       1600 Market Street, Suite 3600
                                                       Philadelphia, PA 19103

                                                              Attorney for Intervenor
                                                              Micron Electronics, Inc.




FUENTES, Circuit Judge:

      Appellant, Lee Feldman, appeals the decision of the United States District Court

for the Western District of Pennsylvania granting summary judgment in favor of

defendants-appellees on three of Feldman’s claims and dismissing one other. We

exercised de novo review over each of these claims on appeal and affirm the District

Court’s decision. We also affirm the District Court’s decision granting the motion of

intervenor-appellee, Micron Electronics, Inc., to quash Feldman’s subpoena. We



                                            3
reviewed this order under an abuse of discretion standard.

                                              I.

       Because we write only for the parties, we will not detail the extensive factual and

procedural background of this case. Appellant, Feldman, a continuing education student

at Community College of Allegheny County (“the College”), had an on-going dispute (for

approximately 8 months) with Dawn Gallimore, the computer lab instructor, over his

contractual right to use the College’s computer lab facilities. This dispute culminated in

his forcible removal from the computer lab by Pittsburgh police officers and his arrest for

trespass (charges that were ultimately withdrawn). Feldman filed suit raising several

constitutional and state-law claims against the College, its president, its dean, the director

of computer services, and Dawn Gallimore (collectively “the College defendants”).

Feldman also filed suit against the City of Pittsburgh and two Pittsburgh police officers.

                                              II.

       At trial, Feldman claimed that the College defendants violated his First

Amendment rights by subjecting him to arrest in retaliation for his statements to the

College’s president in which he alleged racial and religious discrimination by Gallimore

(an African American woman) against him (a Caucasian Jewish man) in restricting his

use of the computer lab. On appeal, Feldman argues that the District Court incorrectly

applied the “public employer-employee discipline” model (instead of the “public school-

student relationship” model) when analyzing this First Amendment retaliation claim. See



                                              4
Azzaro v. County of Allegheny, 110 F.3d 968, 975 (3d Cir. 1997) (public employer-

employee case setting out three-part test).

       Under Azzaro, the first step is to determine whether Feldman’s statements were

protected by the First Amendment; second, whether the statements were a “motivating

factor” in Feldman being denied computer lab use and arrested; and third, whether

Feldman would have been denied access and arrested for reasons other than his

statements. Azzaro, 110 F.3d at 975. This Court has applied a substantially similar test

in cases involving retaliation claims brought by a non-employee against a government

entity. For example, Estate of Smith v. Marasco involved a citizen’s claim of retaliation

by state police officers after he lodged complaints against the officers. 318 F.3d 497, 512

(3d Cir. 2003). In Marasco, we applied a three-part test, examining first, whether the

plaintiff “engaged in protected activity;” second, whether “the government responded

with retaliation;” and third, whether “the protected activity was the cause of the

retaliation.” Id. Marasco illustrates this Court’s use of a test almost identical to the

Azzaro standard in a non-employment situation such as Feldman’s. Further, this standard

is clearly more appropriate than the public school-student model used in Tinker v. Des

Moines Independent Community School District, a factually dissimilar case that Feldman

cites as precedent. 393 U.S. 503, 510 (1969) (involving a challenge by high school

students to a prior restraint on expressive conduct to protest the Vietnam War).

       Applying the first prong of the Azzaro test, the District Court correctly held that



                                              5
Feldman’s speech was not protected under the First Amendment since it did not involve a

“matter of public concern,” which is “determined by the content, forum and context of the

given statement as revealed by the whole record.” Id. at 976, quoting Connick v. Myers,

461 U.S. 138, 147-48 (1983) (internal quotations omitted). While Feldman attempts to

argue that his claims of racial and religious animus create a matter of public concern, the

record clearly shows that Feldman’s conflict with Gallimore was merely a private dispute

arising from a disagreement over the College’s computer lab policies. The record further

shows that the College defendants restricted Feldman’s lab use for the sole reason that he

was not currently registered in a class in progress. We agree with the District Court’s

conclusion that “there is absolutely nothing on the record that might support this rampant

speculation about purported discriminatory motives of Dawn Gallimore or the other

[College defendants].” Dist. Ct. Op. at 10. Thus, the first prong of the Azzaro test was

not satisfied.

       Nor did Feldman satisfy the second and third elements, which concern causation.

The District Court addressed these elements, and we agree with its conclusion that there

was nothing in the record to reasonably support an inference that the College defendants

retaliated against Feldman because he exercised his First Amendment rights. Dist. Ct.

Op. at 10. In fact, the College communicated its decision to bar Feldman from the lab for

his violation of lab policies before Feldman wrote his letter referencing Gallimore’s race.

College defendants Brief at 27-28. We note that even if the first element of the Azzaro



                                             6
test does not apply in this context, a question that we do not decide, Feldman’s First

Amendment claim would still fail for lack of evidence of causation. We, therefore, affirm

the District Court’s grant of summary judgment in favor of the College defendants on

Feldman’s First Amendment claim.


                                            III.

       Feldman claims that the District Court erred in granting summary judgment for the

City of Pittsburgh and two Pittsburgh police officers on his § 1983 false arrest, false

imprisonment, and malicious prosecution claims. We agree with the District Court’s

conclusion, however, that Feldman does not establish the existence of any genuine issue

of material fact as to whether the officers had probable cause to arrest him for defiant

trespass.

       Probable cause exists “when the facts and circumstances within the arresting

officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe

that an offense has been or is being committed by the person to be arrested.” Orsatti v.

N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). The record shows that a College

security guard informed the officers that he had instructed Feldman to leave and that

Feldman had refused to do so. App. at 221-22. This information was sufficient for the

officers to reasonably believe that Feldman was engaging in “defiant trespass” on College

property, as defined by 18 Pa.C.S. § 3503(b).

       Feldman’s assertion that the officers should have investigated his status as a



                                              7
student and his claim that he had a right to use the lab is incorrect. Under Merkle v.

Upper Dublin School District, an officer is not required to “undertake an exhaustive

investigation in order to validate the probable cause that, in his mind, already exists.” 211

F.3d 782, 790 n.8 (E.D. Pa. 1999) (stating that an arresting officer was reasonable in

believing a credible report from a school principal who witnessed an alleged theft of

school property by a teacher).

       We agree with the District Court that, regardless of the ultimate disposition of the

criminal charges, there was clearly probable cause under all of the circumstances for the

officers to believe that Feldman was trespassing. “[T]here is no question that the police

officers were not required or permitted to conduct a trial of the matter on the spot to

determine whose interpretation of [the College’s] policies was correct, and that there was

ample probable cause to arrest this defiant trespasser who refused to obey repeated

requests by the owner’s agents to leave.” Dist. Ct. Op. at 18-19. We, therefore, agree

with the District Court’s grant of summary judgment in favor of the officers and the City

of Pittsburgh on this issue.

                                             IV.

       We also agree with the District Court’s grant of summary judgment in favor of the

officers and the City of Pittsburgh on Feldman’s Fourth Amendment excessive force

claim. The District Court held that the force exerted by the police “was no more than was

necessary to effectuate the arrest, given [Feldman’s] stubborn and unreasonable refusal to



                                              8
comply with the security officer’s and police officers’ repeated requests to leave the

computer lab.” Dist. Ct. Op. at 23. Viewing the facts as Feldman relates them, Feldman

fails to present any genuine issue of material fact to support an excessive force claim.

       An excessive force claim requires proof that the officers’ conduct was objectively

unreasonable, considering several factors. These factors include: the severity of the

crime, whether the suspect poses an immediate threat, and whether the suspect is actively

resisting arrest. Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995),

following Graham v. Connor, 490 U.S. 386, 396 (1989). Further, “[n]ot every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers violates

the Fourth Amendment.” Graham, 490 U.S. at 396 (internal quotations and citation

omitted).

       The record clearly shows that Feldman was resisting arrest, first by telling the

uniformed police officers that he would not leave until they showed him identification,

and then by actively struggling when the officers attempted to remove him. In the

ensuing struggle to handcuff him, Feldman claims that the officers “wrestled” him to the

ground and that one of them kicked him in the head. Feldman Brief at 35. The officers

deny kicking Feldman and claim to have used an “arm bar” technique to subdue him.

App. at 43. Still, we agree with the District Court’s assessment that, even accepting

Feldman’s description of the arrest, the force resulted as part of the struggle and was not

excessive in light of Feldman’s physical resistance. The force was reasonable under



                                             9
Groman and fails to amount to a § 1983 violation. We therefore affirm the District

Court’s dismissal of Feldman’s excessive force claims against the City of Pittsburgh and

the officers.

                                            V.

       Feldman raises state law assumpsit claims, arguing that, as a registered student, the

College breached a contractual undertaking with him by barring him from the computer

lab. We now affirm the District Court’s dismissal of these claims, although on different

grounds.

       The College defendants concede that the District Court erred in basing its

dismissal on the application of a six-month limitations period without considering

whether Feldman had a reasonable excuse for not filing his claim within the period and

whether the College had actual or constructive notice of Feldman’s claim. See 42 Pa.

Cons. Stat. Ann. §§ 5522(a)(1), 5522(a)(2), 5522(a)(3)(iii). Feldman also contends that

the District Court erred in barring his state claims based on the general government

immunity provisions of the Tort Claims Act. He argues that the statute does not apply to

his contract-based assumpsit claim.

       In order to have an action in assumpsit, Feldman must have shown that a valid

contract existed. Torchia v. Keystone Foods Corp., 635 A.2d 1082, 1086 (Pa. Super.

1993). Creating a valid contract requires an offer, an acceptance, and consideration, or a

“meeting of the minds.” Yarnall v. Almy, 703 A.2d 535, 538 (Pa. Super. 1997). Because



                                            10
Feldman and the College apparently had different ideas as to what the “contractual terms”

of lab use were, they never had a meeting of the minds. At a deposition, the College

defendants offered testimony in which they explained the policies of allowing students

access to the lab only when their classes are in session and prohibiting use of the lab to

conduct personal business, as Feldman had been doing. App. II at 512, 454. Feldman

claims that he was qualified to use the lab since he was registered for a class in May,

although that class was not scheduled to begin until June.

       These arguments illustrate the obvious discrepancy between Feldman’s and the

College’s understandings of the conditions governing lab use. This discrepancy supports

the College’s argument that it had insufficient agreement with Feldman as to the terms of

lab use to form a contract. “Feldman’s conduct establishes that he did not know the terms

of the agreement [the College] offered” . . . “assuming that [the College] ever made him

an offer.” College defendants Brief at 41, 38.

       Feldman further argues that the College never identified any written policy

limiting lab access to students actively participating in classes. This argument is

unpersuasive. The College is not required to provide written notice of every regulation

governing the use of its facilities in order to enforce those regulations. While the

College’s handbook provides some information as to computer lab use, the handbook

does not contain an exhaustive catalogue of every College policy. App. III at 664. The

information it provides cannot be viewed as the basis of a contract, making any



                                             11
regulations not contained in it unenforceable. Further, simply being registered for a class

scheduled to start on some future date should not be construed as entitling the registrant

to have access to the College’s facilities before the class begins. The College should not

have to rely on a written policy in order to reserve its facilities for use by its students

enrolled in active, ongoing classes.

       Therefore, because a valid contract was never formed, we affirm the District

Court’s dismissal of Feldman’s contract claim. Because no contract existed, it is

unnecessary for us to address the District Court’s failure to consider exceptions to the six-

month limitations period for bringing a claim against a government unit.

                                              VI.

       Finally, this Court also agrees with the District Court’s order quashing a subpoena

and denying a motion to compel Micron Electronics, Inc. (“Micron”) to provide a list of

computer purchasers in Southwestern Pennsylvania from May 22 to M ay 30, 1995 in

Feldman’s attempt to identify and locate a potential witness to his arrest.

       Under Federal Rule of Civil Procedure 45(c)(3)(B)(i), a court may quash or modify

a subpoena that would require disclosure of trade secrets. In American Ice Co. v. Royal

Petroleum Corp., 261 F.2d 365, 367 (3d Cir. 1958), this Court held that customer lists are

confidential and entitled to protection as trade secrets. We agree with the District Court’s

finding that compliance with Feldman’s request would be “burdensome and require

disclosure of confidential information.” App. I at 152. Further, Feldman failed to claim



                                               12
that “more diligent discovery was impossible” as required by this Court in Gallas v.

Supreme Court of Pennsylvania, 211 F.3d 760, 777 (3d Cir. 2000) (holding that the Court

“will not upset a district court’s conduct of discovery procedures absent a demonstration

that the court’s action made it impossible to obtain crucial evidence, and implicit in such

a showing is proof that more diligent discovery was impossible”) (internal quotations and

citation omitted). For these reasons, we affirm the District Court’s order quashing

Feldman’s subpoena of M icron’s customer list.

         Finally we consider Micron’s motion for sanctions under 28 U.S.C. § 1927 for

imposing unreasonable and unnecessary costs in litigation and under Rule 38 of the

Federal Rules of Appellate Procedure for Feldman’s pursuit of a frivolous issue on

appeal. Based on our careful review of Micron’s contention and the arguments made by

Feldman’s pro bono counsel as to the relevance of the subpoena, we conclude that

Micron’s claim has no merit.

         Accordingly, for the reasons stated above, we affirm the judgment of the District

Court.




                                              13
_____________________________

TO THE CLERK OF THE COURT:




Kindly file the foregoing Opinion.




                                          /s/ Julio M. Fuentes
                                             Circuit Judge




                                     14
Lee Feldman v. Community College of Allegheny County, et al., No. 00-3355

Becker, Circuit Judge, Concurring and Dissenting.




       I join in Part II (the First Amendment Claim) and Part III (the False Arrest,

Imprisonment & Malicious Prosecution claims). I dissent from Part IV (the Excessive Force

claim) and Part V (the Assumpsit claim). With respect to Part VI, I join in the judgment but

on different grounds. Since this is a not precedential opinion, I limit my discussion to my

own ratio decidendi.

                                    I.

       What stands out for me with respect to the excessive force claim is that the record,

which we must construe in the light most favorable to Feldman at this procedural state,

reflects that he was kicked in the head, a fact corroborated by photographs which show very

ugly bruises. Feldman’s testimony that he was kicked in the head is corroborated by the

testimony of Byarr Meekins, one of the computer lab instructors, who stated in his

deposition: “I think one of them had kicked him, but I really didn’t look at the whole

complete thing; but I think I might have turned and saw him get kicked.” True, when asked

if he could describe the officer who kicked Feldman, Meekins replied: “No, I can’t.”

However, taken in the light most favorable to Feldman, the existence of this third party

testimony, shaky though it may be, along with Feldman’s own account, leads me to conclude

that there is a genuine issue of material fact as to the excessive force claim that should have



                                              15
been resolved by a jury and not by the judge.

                                    II.

       I also believe that Feldman’s assumpsit claim presents a jury issue. The Community

College Student Handbook provides:

               The Computing Suite, located in L-500, provides a number of services
       to students, faculty and staff of Allegheny Campus. There are six separate lab
       facilities that are coordinated and maintained bu the Department of
       Educational Computer Services. Students who are enrolled in courses that
       require the use of computers have preference in the use of Computing Suite
       facilities.

(Student Handbook, p. 23, App. 244).

As far as I can tell, all this passage demonstrates is that students enrolled in courses that

require use of computers (presumably computer science courses, although potentially others

as well) will be given priority in the computer lab. This statement does not in any way

support the contention that students not enrolled in computer courses, or who are simply

registered as opposed to enrolled, will not have access to the computers.

       Although Feldman had not started his course, he was enrolled. A number of CCAC

witnesses assert that Feldman was not entitled to use the computer lab, either because he was

not currently enrolled or because he was not doing course-related work. However, none of

the CCAC defendants can point to written policy that supports their contentions. In short,

given Feldman’s long-standing use of the computer lab, and given the fact that the student

handbook seems to imply that he had the right to do so (or at the very least does not indicate

that he did not have the right to do so), I think that there is enough here to create a genuine


                                              16
issue of material fact as to whether a contractual obligation existed on the part of CCAC to

allow Feldman to use the computers.

                                    III.

       Feldman served a subpoena on Micron seeking a list “of all individual computer

purchasers from Southwestern Pennsylvania during May 22 through May 30, 1995.” (App.

102). In serving this subpoena, Feldman was trying to locate a woman with whom he had

spoken in the computer lab on the evening of May 30, 1995, just before the events that led

to his arrest. That woman, according to Feldman, witnessed the entire arrest and would have

been a material witness who could corroborate his version of events. Apparently, in the

course of her conversation with Feldman, she mentioned that she had just purchased a

Micron computer, hence his attempt to locate her through the subpoena.

       In my view, the discovery issue is very close. I do not believe that it would have been

burdensome for Micron to search its computerized records to reveal the names of individual

computer purchasers from Southwestern Pennsylvania during the period May 22 through

May 30, 1995. I also believe that the information was critical to Feldman’s case, which

weighs in his favor on the issue. And I am underwhelmed by Micron’s confidentially

argument; at all events the information could have been subjected to a protective order.

       I concur in the judgment only because I believe that Feldman could have sought the

information from CCAC. For example, Feldman could have tried to subpoena CCAC for a

list of female computer science majors. I am therefore satisfied that Judge Lee did not abuse



                                             17
his discretion in denying the discovery request, which would at least have imposed some

expense on Micron.

       Finally I note that because of the closeness of the issue and the strong argument made

by Feldman’s pro bono counsel, I believe that Micron’s motion for sanctions under 28 U.S.C.

§ 1927 for imposing unreasonable and unnecessary costs in litigation and under Rule 38 of

the Federal Rules of Appellate Procedure for pursuing a frivolous issue on appeal is clearly

without merit and was properly denied.




                                             18
