                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                    No. 11-3345
                    ___________

  CHERYL JAMES; WARREN JAMES; NICOLE JAMES
                     v.

  THE CITY OF WILKES-BARRE; WRIGHT TOWNSHIP;
      WILKES-BARRE HOSPITAL COMPANY, LLC,
 doing business as WILKES-BARRE GENERAL HOSPITAL;
   THE WYOMING VALLEY HEALTH CARE SYSTEM;
   THE WILKES-BARRE CITY POLICE DEPARTMENT;
    THE WRIGHT TOWNSHIP POLICE DEPARTMENT;
              DR. RUSSELL ELMER JAMES;
    DR. NOEL PACLEB ESTIOKO; AMY LYNN CRAIG;
    BETH ANN NOBLE; LORA DENISE PAULUKONIS;
  BRIAN THOMAS MORAN; TANYA LYNN OSTOPICK;
 RYAN RUSSELL SELTZER; CAROLE FLEMING PIROW;
             DENNIS MONK; BRIAN STOUT;
        MICHAEL MARSHALL; CHARLIE CASEY;
KATHY PICKARSKI VIDUMSKI; JASON FRANK KILLIAN
              DR. MAUREEN M. LITCHMAN

                   Michael Marshall,

                                 Appellant
                     __________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
                   (D.C. No. 10-cv-01534)
        District Judge: Honorable James M. Munley
                        ___________

                Argued October 23, 2012
      Before: HARDIMAN, GREENAWAY, JR., and
               VANASKIE, Circuit Judges.

                 (Filed: November 29, 2012)

Rufus A. Jennings
John P. Morgenstern [Argued]
Deasey, Mahoney, Valentini & North
1601 Market Street
Suite 3400
Philadelphia, PA 19103-0000
      Attorneys for Michael Marshall, Defendant-Appellant

James A. Brando [Argued]
William L. Higgs
Law Offices of William L. Higgs
386 South Mountain Boulevard
Mountain Top, PA 18707
      Attorneys for Plaintiff-Appellees

                       ____________

                OPINION OF THE COURT
                     ____________


HARDIMAN, Circuit Judge.




                              2
      This appeal requires us to decide whether the District
Court erred when it denied a police officer‘s motion to
dismiss a civil rights action.

                                I

       On the evening of September 28, 2009, fifteen-year-
old Nicole James sent a text message to a friend stating that
she planned to commit suicide by ingesting ibuprofen pills.
The friend called 911 and soon thereafter Officer Michael
Marshall of the Wright Township Police Department arrived
at the James residence. Officer Marshall was accompanied
by two other police officers and emergency medical
personnel.

       When questioned by her parents, Warren and Cheryl
James, Nicole admitted that she had planned to commit
suicide, but said that she had changed her mind and had not
ingested any pills. Nevertheless, Officer Marshall stated that
Nicole had to go to the hospital for an evaluation. Nicole‘s
parents disagreed, insisting that they wanted to handle the
matter themselves. Officer Marshall then ―informed Warren
and Cheryl that [he] would charge [them] with assisted
manslaughter if something happened to Nicole because they
did not send Nicole to the hospital with the emergency
medical services personnel.‖ Compl. ¶ 50. Mr. and Mrs.
James relented and gave permission for their daughter to be
taken to the hospital.

        Officer Marshall then informed Mr. and Mrs. James
that one of them would need to accompany Nicole. They
initially refused, stating that they felt unable to travel because




                                3
they had taken prescription medication earlier that evening.1
Officer Marshall persisted, however, and Mrs. James agreed
to go to the hospital with her daughter.

       Cheryl James later brought suit against Officer
Marshall for false arrest and false imprisonment pursuant to
42 U.S.C. § 1983 in the Court of Common Pleas of Luzerne
County, Pennsylvania.2 Officer Marshall then removed the
case to the United States District Court for the Middle District
of Pennsylvania, and filed a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6). In the alternative, Officer Marshall
argued that he was entitled to qualified immunity. The matter
was referred to Magistrate Judge Mildred E. Methvin, who
recommended that the claims be dismissed for failure to state
a claim. In light of this recommendation, the issue of
qualified immunity was not addressed.

       After the Jameses filed objections, the District Court
rejected Magistrate Judge Methvin‘s Report and
Recommendation to the extent that it dismissed Mrs. James‘s
§ 1983 claims for false arrest and false imprisonment, and

       1
         Mrs. James had taken anti-depression medication and
had consumed numerous alcoholic beverages. She alleges
that the medication left her feeling extremely drowsy. Mr.
James had taken heart medication, which had the same side
effect.
       2
          The Complaint pleaded nineteen counts against
twenty-one defendants. Only the claims against Officer
Marshall for false arrest and false imprisonment are at issue
in this appeal. We have limited our recitation of the facts and
procedural history accordingly.



                               4
denied Officer Marshall‘s motion to dismiss. James v. City of
Wilkes-Barre, 2011 WL 3584775, at *6 (M.D. Pa. Aug. 15,
2011). Officer Marshall appealed to this Court, arguing that
he was entitled to qualified immunity.

       Because the District Court did not address the issue of
qualified immunity in its opinion, we summarily remanded
the matter for an explanation as to why it denied qualified
immunity to Officer Marshall. Two days later, the District
Court filed a supplemental memorandum opinion. James v.
City of Wilkes-Barre, 2012 WL 425236, at *1 (M.D. Pa. Feb.
9, 2012). The case is now ripe for disposition.

                                II

        The District Court exercised jurisdiction under 28
U.S.C. §§ 1331 and 1343(a)(3).              We have appellate
jurisdiction under 28 U.S.C. § 1291 and the collateral order
doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);
see also Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (―[T]he
applicability of the [collateral order] doctrine in the context of
qualified-immunity claims is well established; and this Court
has been careful to say that a district court‘s order rejecting
qualified immunity at the motion-to-dismiss stage of a
proceeding is a ‗final decision‘ within the meaning of §
1291.‖ (citing Behrens v. Pelletier, 516 U.S. 299, 307
(1996))).

       Because this case comes to us upon a Rule 12(b)(6)
motion to dismiss, we accept the factual allegations contained
in the Complaint as true, but we disregard rote recitals of the
elements of a cause of action, legal conclusions, and mere
conclusory statements. See Iqbal, 556 U.S. at 678–79; Bell




                                5
Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007);
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220–21 (3d
Cir. 2011). We exercise de novo review of a district court‘s
denial of a motion to dismiss on qualified immunity grounds
as it involves a pure question of law. McLaughlin v. Watson,
271 F.3d 566, 570 (3d Cir. 2001) (citing Acierno v Cloutier,
40 F.3d 597, 609 (3d Cir. 1994)).

                              III

       The doctrine of qualified immunity insulates
government officials who are performing discretionary
functions ―from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.‖ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The Supreme Court has established a two-part analysis that
governs whether an official is entitled to qualified immunity.
Saucier v. Katz, 533 U.S. 194, 201 (2001). We ask: (1)
whether the facts alleged by the plaintiff show the violation of
a constitutional right; and (2) whether the right at issue was
clearly established at the time of the alleged misconduct. Id.;
Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.
2010). Courts may address the two Saucier prongs in any
order, at their discretion. Pearson v. Callahan, 555 U.S. 223,
236 (2009). If the plaintiff fails to satisfy either prong, the
defendant is entitled to judgment as a matter of law. See id. at
232.

                               A

       The first question of the Saucier analysis is whether a
constitutional violation occurred. This ―is not a question of




                               6
immunity, but whether there is any wrong to address.‖ Ray v.
Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010) (citing
Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007)). Here, the
Complaint alleges that Officer Marshall falsely arrested and
imprisoned Mrs. James when he insisted that she accompany
her daughter to the hospital in an ambulance.

                              B

        To state a claim for false arrest under the Fourth
Amendment, a plaintiff must establish: (1) that there was an
arrest; and (2) that the arrest was made without probable
cause. See Groman v. Twp. of Manalapan, 47 F.3d 628, 634
(3d Cir. 1995); Dowling v. City of Phila., 855 F.2d 136, 141
(3d Cir. 1988). The Complaint at issue in this appeal fails to
allege facts that give rise to a seizure under the Fourth
Amendment. Accordingly, Officer Marshall is entitled to
qualified immunity on this claim.

        ―Only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a
citizen may we conclude that a seizure has occurred.‖
Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968)) (internal quotation marks
omitted); see also Berg v. Cnty. of Allegheny, 219 F.3d 261,
269 (3d Cir. 2000) (―A person is seized for Fourth
Amendment purposes only if he is detained by means
intentionally applied to terminate his freedom of
movement.‖). When a person claims that her liberty is
restrained by an officer‘s ―show of authority,‖ a seizure does
not occur unless she yields to that show of authority.
California v. Hodari D., 499 U.S. 621, 626 (1991); United
States v. Smith, 575 F.3d 308, 313 (3d Cir. 2009). ―[T]he test




                              7
for existence of a ‗show of authority‘ is an objective one: not
whether the citizen perceived that [s]he was being ordered to
restrict [her] movement, but whether the officer‘s words and
actions would have conveyed that to a reasonable person.‖
Hodari D., 499 U.S. at 628; see also United States v. Brown,
448 F.3d 239, 245 (3d Cir. 2006). We examine the totality of
the circumstances in determining whether a seizure occurred.
Bostick, 501 U.S. at 437; United States v. Crandell, 554 F.3d
79, 86 (3d Cir. 2009). Some factors indicative of a seizure
include ―the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of
the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer‘s request
might be compelled.‖ United States v. Mendenhall, 446 U.S.
544, 554 (1980); see also United States v. Drayton, 536 U.S.
194, 204 (2002) (concluding that the defendant was not
seized because ―[t]here was no application of force, no
intimidating movement, no overwhelming show of force, no
brandishing of weapons, no blocking of exits, no threat, no
command, not even an authoritative tone of voice‖).

       Mrs. James does not claim that Officer Marshall used
any physical force. Instead, she alleges that he made a show
of authority. She asserts in the Complaint:

      54. None-the-less [sic], the Wright Township
      Police officers insisted that at least one parent
      needed to travel with Nicole to the hospital.

      55. Justifiably and reasonably believing herself
      to be compelled by law to do so in reliance
      upon the statements of the Wright Township
      Police officers, Cheryl agreed to accompany




                              8
       Nicole because she believed herself to be in less
       danger than Warren would be if he
       accompanied Nicole.

Compl. ¶¶ 54, 55.

       These allegations are insufficient to establish a show
of authority that rises to the level of a seizure under the
Fourth Amendment. First, the officers‘ insistence that Mrs.
James accompany her daughter to the hospital would not
cause a reasonable person to feel powerless to decline the
officers‘ request or otherwise terminate the encounter. See
Bostick, 501 U.S. at 436. Indeed, the Supreme Court has
repeatedly rejected the notion that a seizure occurs when an
officer approaches a citizen to ask questions or make
requests. See, e.g., Drayton, 536 U.S. at 203–04 (no seizure
when three officers boarded a bus and began questioning
passengers); Bostick, 501 U.S. at 434–35 (no seizure when
two officers approached a citizen on a bus and requested his
consent to search his luggage); Mendenhall, 446 U.S. at 555
(no seizure when two DEA agents approached a citizen at an
airport and requested identification and her airline ticket); see
also Crandall, 554 F.3d at 84 (―The Supreme Court has made
clear that a Fourth Amendment ‗seizure does not occur
simply because a police officer approaches an individual and
asks a few questions.‘‖ (quoting Bostick, 501 U.S. at 434)).

       Mrs. James‘s assertion that she ―justifiably and
reasonably believ[ed] herself compelled by law‖ to comply
with Officer Marshall‘s request does not alter our conclusion.
In finding that Officer Marshall violated Mrs. James‘s
constitutional rights, the District Court reasoned:




                               9
       [T]he complaint alleged that the police officers
       asserted their authority and compelled Cheryl
       James to accompany her daughter to the
       hospital. She alleges that she had no choice in
       the matter, and her freedom of movement was
       thereby intentionally terminated by the actions
       of the police . . . . If she can prove these facts to
       a jury, [she] could prevail on her claim.

James, 2012 WL 425236, at *3. By crediting these
allegations, the District Court assumed that Mrs. James was
―compelled‖ to accompany her daughter to the hospital. This
was error because whether she was in fact ―compelled‖ to do
so is a legal conclusion. At the motion to dismiss stage, we
accept as true all factual assertions, but we disregard
threadbare recitals of the elements of a cause of action, legal
conclusions, and conclusory statements. See Iqbal, 556 U.S.
at 678–79; Twombly, 550 U.S. at 555–57; Burtch, 662 F.3d at
220–21. Although Mrs. James asks us to accept as fact her
assertion that she ―justifiably and reasonably believ[ed]
herself compelled by law,‖ in reality it is a legal conclusion
artfully pleaded as a factual assertion, which is not entitled to
a presumption of truth. See Iqbal, 556 U.S. at 678
(―Although for the purposes of a motion to dismiss we must
take all of the factual allegations in the complaint as true, we
‗are not bound to accept as true a legal conclusion couched as
a factual allegation.‘‖ (quoting Twombly, 550 U.S. at 555)).
As far as relevant factual averments go, the Complaint pleads
only that the officers ―insisted‖ that one parent accompany
Nicole. As we have explained, insistence alone is insufficient
to constitute a seizure under the Fourth Amendment.




                                10
       Even if we were to consider Mrs. James‘s assertion
that she felt compelled by law, she does not establish that a
reasonable person would have felt she had no choice but to
comply. See Hodari D., 499 U.S. at 628; Brown, 448 F.3d at
245. As the Court of Appeals for the Seventh Circuit has
persuasively explained, a seizure results from

       coercive pressure from state actors resulting in a
       significant, present disruption of the targeted
       person‘s freedom of movement. In our view, a
       seizure typically involves an almost complete
       restriction of movement—either a laying of
       hands or a close connection (both temporally
       and spatially) between the show of authority
       and the compliance (as when a police officer
       tells a suspect to get in the back of the squad car
       but declines to handcuff him).

Kernats v. O’Sullivan, 35 F.3d 1171, 1180 (7th Cir. 1994).

       Although we acknowledge that intimidating police
behavior might, under some circumstances, cause one to
reasonably believe that compliance is compelled, the officers‘
actions in this case did not rise to that level. There are no
allegations that the officers intimidated Mrs. James with a
threatening presence, engaged in any physical touching, or
displayed a weapon. See Mendenhall, 446 U.S. at 554. Nor
did the officers order her to the police station for questioning
or threaten to arrest her if she refused to accompany her
daughter to the hospital. See Hayes v. Florida, 470 U.S. 811,
812–13, 816 (1985) (finding a Fourth Amendment seizure
when police approached a citizen at his home, asked him to




                               11
accompany them to the police station for questioning, and
threatened to arrest him when he initially refused).

       The only fact that might point toward a seizure is
Officer Marshall‘s threat that Mr. and Mrs. James would be
charged with assisted manslaughter if they prevented Nicole
from going to the hospital and she actually committed
suicide. But that threat was not made in connection with Mrs.
James‘s decision to accompany Nicole to the hospital; rather,
it was made in the context of the parents agreeing to send
Nicole to the hospital in the first place, which does not
implicate a restriction on Mrs. James‘s freedom of movement.

        Finally, we note that the facts alleged in the Complaint
differ significantly from the circumstances present in the few
cases we have located in which a seizure was found based on
the alleged restraint of a plaintiff‘s freedom of movement by
an official threat. See, e.g., White v. City of Markham, 310
F.3d 989, 992, 995 (7th Cir. 2002) (seizure occurred when
police officer placed hand on man‘s shoulder and told him
that if he did not leave immediately, he would be arrested);
Cassady v. Tackett, 938 F.2d 693, 694–96 (6th Cir. 1991)
(seizure occurred when executive director of a multi-county
jail barricaded herself in her office after the county jailer and
his deputies, brandishing weapons, threatened to kill her and
her husband). Tellingly, Mrs. James does not cite any case
factually similar to hers in which a seizure was found.

       For the reasons stated, we hold that Mrs. James was
not seized in violation of the Fourth Amendment. Having
found no constitutional violation, we hold that Officer
Marshall is entitled to qualified immunity.




                               12
                            C

      Mrs. James also alleges that she was falsely
imprisoned by Officer Marshall after she was forced to
accompany her daughter to the hospital. In this regard, the
Complaint alleges:

      146. Wright Township Police Department
      officers intended that Plaintiff Cheryl James
      should accompany her daughter.

      147. Wright Township Police used the force of
      their authority and threat of future arrest to
      compel Cheryl James to leave her home in an
      ambulance.

      148. Cheryl James was thereafter confined and
      restrained to the ambulance.

Compl. ¶¶ 146–48.

       To state a claim for false imprisonment, a plaintiff
must establish: (1) that she was detained; and (2) that the
detention was unlawful. See Wallace v. Kato, 549 U.S. 384,
389 (2007) (―The sort of unlawful detention remediable by
the tort of false imprisonment is detention without legal
process.‖ (citations omitted) (emphasis deleted)). A false
imprisonment claim under § 1983 which is based on an arrest
made without probable cause, as Mrs. James alleges here, is
grounded in the Fourth Amendment‘s guarantee against
unreasonable seizures. Groman, 47 F.3d at 636.




                            13
       As we have explained, Mrs. James has not pleaded that
she was seized within the meaning of the Fourth Amendment.
She was urged by officers to accompany her daughter in the
ambulance, and she agreed to do so. She was free to leave at
any time. Indeed, she does not allege that any Wright
Township police officers accompanied her in the ambulance
or even that they proceeded to the hospital separately.
Accordingly, Mrs. James cannot show that she was falsely
imprisoned. Therefore, the District Court erred when it failed
to grant Officer Marshall qualified immunity on this claim as
well.

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




                             14
