                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-23-2003

Shabazz v. Nagy
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4261




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Recommended Citation
"Shabazz v. Nagy" (2003). 2003 Decisions. Paper 260.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/260


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 02-4261

                              *FAHEEMAH SHABAZZ,

                                       Appellant
                                            v.

    STEPHEN NAGY, P.O., Badge No. 3241; RONNIE BRODIE, Badge No. 9110;
THOMAS LEDERER, Det.; WILLIAM CIERRA, Det.; J & W INSURANCE AGENCY,
 d/b/a EAGLE PEAK BUSINESS SERVICES; WANDS DENISE PATE, Individually
 and as Agent, Servant, Employee, and Owner of J & W Insurance Agency, d/b/a Eagle
                              Peak Business Services

                  *(Amended in accordance with Clerk's Order dated 1/7/03)

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (Civil Action No. 01-cv-05396)
                     District Court: Honorable John P. Fullam, Sr.

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 15, 2003

                Before: McKEE, SMITH and COWEN, Circuit Judges.

                              (Filed: September 23, 2003)

                                      OPINION
McKEE, Circuit Judge.

      Plaintiff Faheemah Shabazz appeals an order from the district court granting

defendants’ motion for summary judgment. For the reasons that follow, we will affirm.

                                          I.
       Because we write only for the parties, we need not reiterate the facts except insofar

as may be helpful to our brief discussion. On November 9, 1999, Faheemah Shabazz was

stopped by Officer Stephen Nagy while driving her mother’s recently purchased

automobile. Officer Nagy stopped Shabazz because the temporary license plate or “tag”

on the car she was driving had expired. After executing a routine check of the expired

tag, Officer Nagy was informed that the car had been stolen. Consequently, he arrested

Shabazz for operating a vehicle with a stolen tag. When arrested, Shabazz was wearing a

khimar, or head-scarf, in keeping with her Islamic beliefs.

       However, police made Shabazz remove the khimar so that her picture could be

taken. This was required for everyone detained in police custody. However, out of

respect for her wishes, no males were present when her khimar was removed for the

picture. While being held overnight in a cell at police headquarters, Shabazz was

required to remove the khimar for safety purposes. Accordingly, despite the precautions

police had taken when Shabazz was photographed, male officers saw her without her

khimar. This was a violation of her religious principles.

       After further police investigation, it became clear that a mistake had been made

and Shabazz was innocent of driving a car with a stolen tag. Once police learned of the

error, Shabazz was released from custody. Thereafter, she filed the instant suit against




                                             2
the arresting officers and various police personnel, as well as the licensing agency whose

negligence purportedly caused the error. 1

         The district court granted the remaining defendants’ motion for summary

judgment, and this appeal followed.2

                                              II.

         As noted, Shabazz argues that summary judgment was inappropriate because the

police lacked probable cause to arrest her, and her post-arrest detention was

unconstitutional. W e consider each claim separately.

         At the outset we note that summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). An issue is genuine if “the

evidence is such that a reasonable jury could return a verdict for the non-moving party.”

Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Facts are material when

disputes over the facts might affect the outcome of a case. Id. Thus, a “mere scintilla”


   1
       Shabazz obtained a default judgment against the agency.
   2
    Our inquiry is whether summary judgment was properly granted to the defendants. A
district court’s grant of summary judgment is subject to plenary review. See Ditri v.
Caldwell Banker Residential Affiliates, Inc. 954 F.2d 869, 871 (3d Cir. 1992); Pub.
Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d
Cir. 1990), cert. denied, 498 U.S. 1109 (1991).

                                              3
of evidence is not enough for the plaintiff to defeat a motion for summary judgment.        Id.

at 252. We must therefore decide “whether reasonable jurors could find by a

preponderance of evidence that the plaintiff is entitled to a verdict.” Id.

                                   A. Probable Cause to Arrest

       The Fourth Amendment requires that an arresting officer have probable cause to

make an arrest. See Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995).

“[P]robable cause to arrest exists when the facts and the 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 being arrested.”

Id.

       As noted above, Shabazz was stopped because the automobile she was driving had

an expired temporary license-tag. The initial stop was therefore clearly justified. After a

routine check, Officer Nagy obtained what then appeared to be reliable information that

the tag was stolen. Based on this information, he arrested Shabazz for operating a vehicle

with a stolen tag. That arrest was, therefore, clearly based upon probable cause, and

plaintiff’s argument to the contrary is patently frivolous.

                                       B. Vicarious liability

       Lieutenant Lederer did not personally remove the khimar. Shabazz argues that

Lederer is liable because he was “directly responsible for the post-arrest interview,

investigation and evaluation of Plaintiff’s arrest, and . . . for determining whether she


                                              4
should be detained.” Br. at 19 (italics in original). Yet, Shabazz concedes that Lederer

was not directly involved in her arrest. Id. She nevertheless claims that she is entitled to

recover against Lederer because of his “negligent and callously indifferent actions,” id.,

following her arrest. However, that allegation is not supported by the uncontested facts

on this record. Thus, the district court correctly concluded that the evidence here did not

support any theory that would allow Shabazz to recover against Lederer.

       “[U]nder our cases, ‘[a] defendant in a civil rights action must have personal

involvement in the alleged wrongs’ to be liable.” Sutton v. Rasheed, 323 F.3d 236 (3d

Cir. 2003) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)) (emphasis

added). Allegations of personal involvement sufficient to attach liability under § 1983

“must be made with appropriate particularity.” Rode, 845 F.2d at 1207. Shabazz has not

come forward with sufficient evidence to meet that standard.3 Accordingly, summary

judgment was proper.

                                   C. Post Arrest Detention

       Finally, Shabazz argues that summary judgment was inappropriate on her claim

that her post arrest detention violated her constitutional rights. A reasonable jury clearly


   3
     Shabazz’s brief states that “pursuant to written policy, the City of Philadelphia Police
Department ordered the removal of all headgear while photographs were being taken . . .
.” However, she never raised the issue of the City’s policy in the district court, and there
is nothing here to even suggest Lederer is a policy maker. Thus, even if Shabazz had
properly preserved the issue of the City’s policy, it would not support a finding of liability
against a Lieutenant in the police department.


                                              5
could conclude that Lederer and Officer Brodie did not conduct an error free

investigation. However, an error free investigation is not constitutionally required of

officials charged with maintaining the custody of the accused. Baker v. McCollan, 443

U.S. 137, 146 (1979).

       Shabazz’s allegations regarding shoddy police work do not rise to the level of a §

1983 claim against Lederer or Brodie. “The Constitution does not guarantee that only the

guilty will be arrested. If it did, § 1983 would provide a cause of action for every

defendant acquitted -- indeed, for every suspect released.” Id. at 145. A reasonable jury

could not find that Shabazz’s post arrest detention violated her constitutionally protected

rights. Accordingly, the district court properly granted summary judgment.

                                                 III.

              For all the above reasons, we will affirm the district court’s decision

granting summary judgment.




                                             6
TO THE CLERK OF THE COURT:




         Please file the foregoing Opinion.




                                    /s/Theodore A. McKee
                                    Circuit Judge




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