                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3689
                                       __________

                             LINCOLN DAVE LEVYS, JR.,
                                              Appellant

                                             v.

                 JOHN V. SHAMLIN; WILLIAM D. MATHIAS;
     MORSE, of the City of Pittsburgh P.D. Zone 3 (personal and official capacity);
                      CITY OF PITTSBURGH P. D. Zone 3
                    ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                          (D.C. Civil Action No. 16-cv-01624)
                       District Judge: Honorable Nora B. Fischer
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                January 2, 2019
       Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                              (Opinion filed: April 24, 2020)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Lincoln Levys appeals from an order of the United States District Court for the

Western District of Pennsylvania, which granted the Defendants’ motion for summary

judgment in his civil rights case. We will affirm the District Court’s judgment.

       Levys filed a complaint1 alleging that certain police officers (the Defendants), and

the City of Pittsburgh, violated his Fourth Amendment rights in connection with

unreasonable searches and seizures on September 11, 2014.2 The Defendants moved to

dismiss those claims on the grounds that: (1) Levys failed to allege facts to support a

plausible Fourth Amendment claim against the officers; and (2) the officers were, at a


1
  The District Court construed Levys’s “Opposition and Response to Defendants [sic]
Motion for Definitive Statement and Motion to Strike/Dismiss,” Dkt. #35, and his “Brief
and Response to Motion for Clarification,” Dkt. #44, as a Third Amended Complaint; we
will do likewise. The District Court had stricken Levys’s original complaint and his First
Amended Complaint for failure to comply with local rules, and the District Court had
treated Levys’s Second Amended Complaint as having been superseded by the filings at
Dkt. ##35 and 44. See District Court orders at Dkt. ##5, 13, 43 and 45.
2
  Based on the alleged Fourth Amendment violation, Levys also raised a claim of
municipal liability under Monell v. N.Y. Department of Social Services, 436 U.S. 658
(1978), against the City of Pittsburgh. Additionally, he presented claims against the
officers under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and two criminal
statutes. The District Court dismissed Levys’s Due Process claims under the Fifth, Sixth,
Eight, and Fourteenth Amendments as duplicative of his Fourth Amendment claim,
dismissed the criminal violation claims for lack of standing, and denied the Monell claim
on the merits. Dkt. #66 at 6, 7 n.6, 15. Levys does not challenge the rulings concerning
the criminal statutes and the Monell claim on appeal, so we need not discuss them
further. See Sheinberg v. Sorensen, 606 F.3d 130, 133-34 (3d Cir. 2010) (concluding that
issue was waived by failure to raise it on appeal). To the extent Levys seeks to pursue on
appeal constitutional claims under amendments other than the Fourth, we agree with the
District Court that those claims are subsumed by his Fourth Amendment claim, and that
those amendments do not provide a separate basis for relief. See Albright v. Oliver, 510
U.S. 266, 273-74 (1994).
                                              2
minimum, entitled to qualified immunity. Because the Defendants attached a number of

exhibits to their motion to dismiss, and because Levys similarly attached matter outside

of the pleadings to his response, the District Court converted the Defendants’ motion to

one for summary judgment and allowed time for any additional submissions. Having

received none, the District Court then granted the Defendants’ motion on the grounds that

the officers were entitled to qualified immunity. Levys timely appealed.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise a plenary standard of

review and apply the same standard as the District Court to determine whether summary

judgment was appropriate. See State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566

F.3d 86, 89 (3d Cir. 2009). Thus, we would normally view the evidence in the light most

favorable to Levys. See Kaucher v County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).

However, as the District Court noted, at summary judgment, the non-moving party

cannot simply rest on his complaint, but must establish a genuine dispute as to a material

fact “by ‘citing to particular parts of . . . the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . ., admissions,

interrogatory answers, or other materials.’” Guidotti v. Legal Helpers Debt Resolution,

L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (quoting Fed. R. Civ. P. 56(c)(1)(A)). Given

the evidence produced by the Defendants and Levys’s failure to support his assertions of

factual disputes, we agree with the District Court that the officers were entitled to

summary judgment on the issue of qualified immunity.

                                               3
       Qualified immunity shields government officials 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 qualified immunity inquiry has two parts: (1) whether the plaintiff

demonstrated the deprivation of a constitutional right; and (2) whether that right was

established at the time of the alleged deprivation. Saucier v. Katz, 533 U.S. 194, 201

(2001). The Court may address either part of the inquiry first. Pearson v. Callahan, 555

U.S. 223, 236 (2009). In the first part of the inquiry, courts must carefully define, at the

appropriate level of specificity, the right that allegedly has been violated. Sauers v.

Borough of Nesquehoning, 905 F.3d 711, 716-17 (3d Cir. 2018). But even where a

constitutional right has been violated, the qualified immunity standard allows “ample

room for mistaken judgments by protecting all but the plainly incompetent or those who

knowingly violate the law.” Kelly v. Borough of Carlisle, 622 F.3d 248, 254 (3d Cir.

2010) (citations and internal quotation marks omitted); see also Sauers, 905 F.3d at 718-

19 (affirming grant of qualified immunity, even though officer’s actions were conscience-

shocking, as “constitutional liability for actions taken in conscious disregard of a great

risk of harm during the course of a police pursuit” was not clearly established at the time

of the incident).

       The right at issue here is the Fourth Amendment’s protection against unreasonable

searches and seizures. U.S. Const. amend. IV. Levys claimed that the officers violated

                                              4
his Fourth Amendment rights by: (1) conducting an investigatory stop without

reasonable suspicion; (2) searching his yard without consent or probable cause; (3)

searching his home without consent or probable cause; and (4) wrongly placing him

under arrest. In considering whether the officers are entitled to qualified immunity, we

need not determine whether there was a Fourth Amendment violation in the first place;

rather, we consider only whether the officers’ conduct violated a clearly established

constitutional right “of which a reasonable person would have known.” See Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks omitted).3

       We turn first to the officers’ investigatory stop of Levys. Searches and seizures

without warrants are presumptively unreasonable, but there are exceptions, one of which

is a “brief, investigatory seizure commonly called [a] ‘Terry stop.’” United States v.

Hester, C.A. No. 16-3570, 2018 WL 6259314, at *2 (3d Cir. Nov. 30, 2018) (citing Terry

v. Ohio, 392 U.S. 1 (1968)). A police officer may conduct a brief investigatory stop

when there is “‘a particularized and objective basis for suspecting the particular person

stopped of criminal activity.’” Navarette v. California, 572 U.S. 393, 396-97 (2014)

(quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Such a “reasonable

suspicion” of criminal activity “‘is dependent upon both the content of information


3
  Thus, the fact that a state court granted Levys’s motion to suppress does not preclude a
finding of qualified immunity. See, e.g., Anderson v. Creighton, 483 U.S. 635, 641
(1987) (“We have recognized that it is inevitable that law enforcement officials will in
some cases reasonably but mistakenly conclude that probable cause is present, and we
have indicated that in such cases those officials—like other officials who act in ways they
                                               5
possessed by police and its degree of reliability.’” Id. at 397 (quoting Alabama v. White,

496 U.S. 325, 330 (1990)). While a mere hunch is not sufficient to establish reasonable

suspicion, “the level of suspicion the standard requires is ‘considerably less than proof of

wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary

for probable cause.” Id. (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

         In the night in question, several reports had been made to the 9-1-1 dispatcher that

two individuals were involved in a shooting on the 1400 block of Amanda Street and had

fled by foot; that two blocks away, there was a prowler in the yard near Levys’s residence

at 1215 Amanda Street; and that the prowler had discarded clothing in the yard.4 As

Officer Shamlin approached Levys’s residence in response to the calls, he saw Levys,

who confirmed that he had just come from his house. Officer Shamlin then signaled two

officers in a patrol car traveling the opposite direction to stop Levys. The two officers

stepped out of the car, stopped Levys, and began to search his person.5 The officers

informed him that they had received reports of a prowler in a nearby yard following the

earlier gunfire.6 Officer William D. Mathias arrived shortly thereafter and stated that the


reasonably believe to be lawful—should not be held personally liable.”).
4
  This information is imputed to the officers for purposes of the Fourth Amendment
inquiry. See United States v. Torres, 534 F.3d 207, 210 (3d Cir. 2008).
5
 Levys argues that the officers approached him with hand on their guns, and that they
immediately handcuffed him. But Levys does not point to any evidence in the record to
support his assertions.
6
    Levys argues, in turn, that there was no caller, and that the caller was anonymous. But
                                                6
police had received a third call indicating that Levys was the “right person.” Considering

the totality of the circumstances, reasonable officers in the Defendants’ shoes would not

have believed that detaining Levys was a violation of his constitutional rights. See

Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (noting that officer can consider totality of

the circumstances in determining whether he or she has probable cause).7

         Second, reasonable officers would not have believed that going into Levys’s yard

was a violation of his constitutional rights, since they had reason to believe that a second

person (possibly armed) might be there after fleeing the shooting scene. See Warden,

Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99 (1967) (concluding that exigent

circumstances allowed police to search home without warrant where they were seeking

suspect from armed robbery). Accordingly, when the officers saw the marijuana plants in

Levys’s yard, in plain view, their decision to seize the marijuana and arrest Levys was

also justified.8 See Kentucky v. King, 563 U.S. 452, 462-63 (2011) (“[L]aw enforcement


again, he does not support those statements by any reference to evidence in the record. In
contrast, the police dispatch records produced in the District Court reflect several callers,
and it appears that at least some of those callers identified themselves by name and
address (although that information was redacted before it was included in the record).
7
  Levys cites Florida v. J.L., 529 U.S. 266, 270-71 (2000), in which the Supreme Court
held that an anonymous tip, without more, did not give police reasonable suspicion for a
stop and frisk. But in that case, the call was made from an unknown location by an
unknown caller, and the caller did not provide any reasonable basis for the police to
suspect J.L. of engaging in unlawful conduct. Here, the caller provided a name and
location, and apparently gave a nearly eyewitness account to the 9-1-1 operator about a
prowler discarding clothing.
8
    For these reasons, the defendants are also entitled to qualified immunity with respect to
                                                7
officers may seize evidence in plain view, provided that they have not violated the Fourth

Amendment in arriving at the spot from which the observation of the evidence is

made.”).9

       For the foregoing reasons, we will affirm the District Court’s judgment.10




Levys’s Fourth Amendment claims for false arrest and malicious prosecution based on
the criminal charges against him for the marijuana plants.
9
  Levys’s claim that the search of his house was illegal fails because the officers testified
under oath that Levys’s fiancée consented to the search. Levys did not point to any
record evidence to refute that assertion, and in his brief here, he says that he “assumed
[his fiancée] gave them permission to search the house because how else would they have
gotten in?”. Appellant’s Brief at 4.
10
   Levys’s “Response to Defendants [sic] Motion for Leave to File a Supplemental
Appendix” appears to be, in essence, a reply brief. But to the extent that he is asking us
to overturn the Clerk’s Order granting the Appellees’ motion to file a supplemental
appendix, his request is denied.
                                            8
