                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 17-2110



                            DELILAH A. GRAHAM-SMITH;
                                RODNEY G. SMITH,

                                             Appellants

                                            v.

                 WILKES-BARRE POLICE DEPARTMENT;
                        CITY OF WILKES-BARRE;
                 ALAN GRIBBLE, In His Individual Capacity;
           GERARD E. DESSOYE, In His Official and Individual Capacities


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (District Court No.: 3:14-cv-2159)
                      District Judge: Honorable James M. Munley


                      Submitted under Third Circuit L.A.R. 34.1(a)
                                 on January 18, 2018

                              (Opinion filed: June 28, 2018)


             Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges


                                      O P I N I O N*


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FUENTES, Circuit Judge:

         Plaintiff-Appellants Delilah Graham-Smith and Rodney G. Smith appeal the

District Court’s grant of summary judgment on their claim of excessive force in favor of

Defendants-Appellees City of Wilkes-Barre and police officer Alan Gribble, in his

individual capacity. For the following reasons, we will affirm the District Court’s

decision.

                                               I.

         Because we write for the parties, we include only those facts relevant to the

disposition of the case before us.

         Graham-Smith was involved in a car accident with another automobile on the

morning of November 12, 2012. Graham-Smith acted “nervous and agitated” at the

scene of the accident.1 She crossed the street to go to Luzerne Bank, though Graham-

Smith disputes that her conduct constitutes the Pennsylvania misdemeanor of leaving the

scene of an accident. In the bank, Graham-Smith was visibly shaken and upset.

         Gribble, a police officer, arrived at the scene of the accident approximately six

minutes later. After speaking with the driver of the other car involved in the accident,

Gribble learned that Graham-Smith had left the scene. He determined that Graham-

Smith was the owner of the other car, and eventually arrived at the bank. Gribble ordered

Graham-Smith to return to the scene of the accident, but she did not.


1
    App. 40a ¶ 25.
                                               2
       When deposed, Gribble testified that Graham-Smith told him on previous

occasions that she had “psychiatric issues,”2 and was “on some medication or

medications.”3 However, none of these medications were for psychiatric treatment.

Gribble testified that he believed Graham-Smith was “not speaking rationally,”4 and that

her agitation was escalating to a point where he believed she might harm herself or

someone else.

       Police officers in Wilkes-Barre, including Gribble, are required to complete 40

annual hours of training related to their professional responsibilities, which includes

training on when to petition for mental health examinations. During his interaction with

Graham-Smith at the bank, Gribble believed it was necessary to take Graham-Smith to

the hospital for a mental health examination. Graham-Smith refused to leave her chair

when prompted by Gribble, and wrapped herself around the chair. Gribble pulled her

thumb back to get Graham-Smith out of the chair, which Graham-Smith admits was in

compliance with the Wilkes-Barre Police Department’s Use of Force Policy. He

handcuffed her and removed her from the bank. There are disputes regarding whether

Gribble’s actions in removing Graham-Smith from the bank fell under the Use of Force

Policy. Graham-Smith complained about the tightness of the handcuffs, and it is disputed

whether Gribble examined the handcuffs in response.




2
  App. 39a ¶ 14.
3
  App. 39a ¶ 15; ¶ 108a.
4
  App. 43a ¶ 41; ¶ 122a.
                                             3
      Gribble transported Graham-Smith to the hospital, where she was involuntarily

committed for a mental health evaluation. Medical professionals determined she did not

require psychiatric treatment. She was given pain medication at the hospital. Nearly two

years later, in October 2014, Graham-Smith saw a doctor for pain and loss of sensation in

her hands, which she associated with Gribble’s use of handcuffs. The physician noted

that Graham-Smith had been involved in a motor vehicle accident as well. This doctor

ordered an electromyogram to assess Graham-Smith’s nerves for ulnar compression

neuropathy or carpal tunnel syndrome. The results of this exam are not in the record, nor

was the physician deposed, but according to Graham-Smith the doctor assessed Graham-

Smith to have carpal tunnel syndrome. Graham-Smith was never charged with

misdemeanor leaving the scene of an accident.

                                            II.

      The District Court had jurisdiction under 28 U.S.C. § 1331, and we have

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s grant of summary judgment and apply the same standard as the District Court.5

Summary judgment is appropriate if and only if there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law.6 The evidence must be viewed

in the light most favorable to the nonmoving party. 7 “We do not weigh the evidence;




5
  Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010).
6
  Fed. R. Civ. P. 56(a).
7
  Kelly, 622 F.3d at 253.
                                            4
rather we determine ‘whether the evidence of record is such that a reasonable jury could

return a verdict for the nonmoving party.’”8 We may affirm on any basis in the record.9

                                              III.

       Graham-Smith brought three claims against the City and Gribble upon which

summary judgment was granted: unlawful seizure under 42 U.S.C. § 1983, false

imprisonment under 42 U.S.C. § 1983, and excessive force under 42 U.S.C. § 1983. On

appeal, Graham-Smith only challenges the grant of summary judgment on the excessive

force claim. Because summary judgment in favor of the City and Gribble was

appropriate for this claim, we will affirm.

                                              A.

       A claim for excessive force derives from the Fourth Amendment, and “a plaintiff

must show that a ‘seizure’ occurred and that it was unreasonable under the

circumstances.”10 This is not an evaluation on the reasonableness of the underlying

arrest, but on the reasonableness of the use of force exerted in the course of the seizure.11

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”12




8
  Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016).
9
  Helvering v. Gowran, 302 U.S. 238, 245 (1937) (“In the review of judicial proceedings
the rule is settled that, if the decision below is correct, it must be affirmed, although the
lower court relied upon a wrong ground or gave a wrong reason.”).
10
   Lamont v. New Jersey, 637 F.3d 177, 182–83 (3d Cir. 2011) (citing Brower v. Cty. of
Inyo, 489 U.S. 593, 599 (1989)).
11
   See Graham v. Connor, 490 U.S. 386, 397 (1989).
12
   Id. at 396.
                                               5
       “[T]he test of reasonableness under the Fourth Amendment is not capable of

precise definition or mechanical application . . . .”13 “The calculus of reasonableness

must embody allowance for the fact that police officers are often forced to make split-

second judgments—in circumstances that are tense, uncertain, and rapidly evolving—

about the amount of force that is necessary in a particular situation.”14 “[I]ts proper

application requires careful attention to the facts and circumstances of each particular

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

threat to the safety of the officers or others, and whether [s]he is actively resisting arrest

or attempting to evade arrest by flight.”15 These circumstances include the severity of

injury resulting from the force used, though the absence of injury does not legitimize

otherwise excessive force.16

       Here, it is beyond material dispute that Gribble’s use of force was reasonable as a

matter of law under the totality of the circumstances. The reasonableness inquiry

requires us to assess the conduct at issue for “reasonableness at the moment,” recognizing




13
   Id. (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979).
14
   Id. at 396–97.
15
   Id. at 396.
16
   See Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997) (“We do not agree that the
absence of physical injury necessarily signifies that the force has not been excessive,
although the fact that physical force was of such an extent as to lead to injury is indeed a
relevant factor to be considered as part of the totality.”), abrogated on other grounds by
Curley v. Klem, 499 F.3d 199, 209–11 (3d Cir. 2007); cf. Ingraham v. Wright, 430 U.S.
651, 674 (1977) (“There is, of course, a de minimis level of imposition with which the
Constitution is not concerned.”); Kopec v. Tate, 361 F.3d 772, 778 n.7 (3d Cir. 2004)
(distinguishing cases where use of force or resulting injury were de minimis).
                                               6
that “[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.”17

         It is not disputed that Graham-Smith refused to comply with Gribble’s direction to

return to the scene of the accident, or that she took physical measures to prevent Gribble

from arresting her or removing her from the bank. Although Graham-Smith disputes here

that this constitutes resisting arrest under the enumerated considerations of Graham’s

reasonableness inquiry, a reasonable officer would certainly view wrapping oneself

around a chair to prevent being moved as resistance.

         The dispute as to Gribble’s conduct in removing Graham-Smith from the bank

after handcuffing her is immaterial: assuming that Gribble did in fact “run” Graham-

Smith out of the bank while forcing Graham-Smith’s hands towards her head, that use of

force was reasonable within the Fourth Amendment. Although the severity of the

underlying crime of arrest was mild and the circumstances of the arrest were relatively

benign, Gribble was required to remove Graham-Smith from the bank. With respect to

this conduct specifically, Graham-Smith has not adduced sufficient evidence to connect

this conduct to the injuries she alleges, though that is not dispositive. Graham-Smith has

not adduced sufficient evidence to create a material dispute as to the reasonableness of

this conduct. We do not determine that Gribble’s use of force was ideal or even the

minimal force necessary when viewed in hindsight: those determinations are beyond the




17
     Graham, 490 U.S. at 396 (citation and internal quotation marks omitted).
                                              7
scope of the legal inquiry. We only hold that a reasonable officer in the moment could

have conducted himself similarly.

       Finally, Graham-Smith contends that the handcuffs restraining her were

excessively tight, leading to injury. There is a dispute as to whether Gribble examined

the handcuffs in response to Graham-Smith’s complaints of wrist pain and tight

handcuffs, so we resolve that dispute in favor of Graham-Smith and assume that Gribble

did not examine the handcuffs. Graham-Smith has not adduced sufficient evidence to

create a material dispute as to whether Gribble handcuffed her excessively and

unreasonably tightly. Kopec v. Tate held that the reasonableness of tight handcuffing

presents a question for the jury where the resulting injuries required over a year of

treatment from a hand surgeon.18 In doing so, it discussed the persuasive authority of our

sister Circuits holding that the reasonableness of tight handcuffing did not raise a

question of fact for the jury where the resulting injury was de minimis.19

       As discussed previously, excessive force is not determined by injury alone.

However, the unreasonableness of handcuffing requires some indication that it was done

unnecessarily or excessively. In Kopec, which specifically notes that “this opinion

should not be overread as we do not intend to open the floodgates to a torrent of handcuff

claims,”20 the totality of circumstances put the arresting officer on notice that the force

employed was excessive. These circumstances included specific complaints that the



18
   Kopec, 361 F.3d at 774, 776.
19
   Id. at 778 n.7 (collecting and discussing cases).
20
   Id. at 777.
                                              8
arrestee was losing feeling in his hand as well as the arrestee falling to the ground and

beginning to faint.21 Here, the signs of excess were limited to Graham-Smith’s

complaints that the handcuffs were hurting her and were cutting her wrists. Graham-

Smith has failed to adduce sufficient evidence to create a material dispute as to whether

actual injury resulted from the handcuffs beyond superficial lacerations. The only

evidence in the record regarding subsequent medical treatment is a report from a treating

physician approximately twenty-three months after the incident. This report does not

opine as to the cause of Graham-Smith’s expressed symptoms, only noting that she

complained of pain “secondary to an arrest with offensively placed handcuffs,” and that

she was involved in a motor vehicle accident.22 This establishes only that Graham-Smith

sought treatment and was referred for assessment via electromyogram: we cannot

reasonably infer either the cause of her pain or the results of the ordered test from the

report in the record. Without sufficient evidence to establish a dispute as to the

excessiveness or unreasonableness of Gribble’s handcuffing of Graham-Smith, there

exists no question of fact for a jury to decide.

         Because Graham-Smith failed to present sufficient evidence to establish a dispute

of material fact in this case, the District Court properly granted summary judgment on her

claim for excessive force under 42 U.S.C. § 1983.




21
     Id. at 774.
22
     App. 206a–207a.
                                               9
                                               B.

       Graham-Smith also contends that Gribble is not entitled to qualified immunity on

her excessive force claim. The District Court held that Gribble is entitled to qualified

immunity. We agree. Qualified immunity is an affirmative defense designed to “protect

government officials from insubstantial claims in order to ‘shield officials from

harassment, distraction, and liability when they perform their duties reasonably.’” 23

“When properly applied, it protects ‘all but the plainly incompetent or those who

knowingly violate the law.’”24 It prohibits a plaintiff from recovering money damages

against a federal or state official unless a plaintiff shows “(1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time

of the challenged conduct.”25

       As discussed above, Graham-Smith has not established the violation of any of her

constitutional rights by Gribble’s reasonable use of force. Therefore, Gribble is entitled

to qualified immunity.

                                               C.

       Because Graham-Smith has not adduced sufficient evidence to establish a dispute

of material fact that her constitutional rights were violated, summary judgment is




23
   Mammaro v. New Jersey Div. of Child Protection and Permanency, 814 F.3d 164, 168
(3d Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
24
   Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).
25
   Al-Kidd, 563 U.S. at 735 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
                                               10
likewise appropriate on her claim against the city for municipal liability under Monell v.

Dep’t of Social Servs.26

                                              IV.

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




26
     436 U.S. 658 (1978).
                                              11
