                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3605
                                       ___________

                                     DON R. ICKES,
                                               Appellant

                                             v.

     CRAIG GRASSMYER; BARRY AUGNST; THOMAS LASKEY; STATE OF
      PENNSYLVANIA; RONALD GIVLER; TOWNSHIP OF GREENFIELD
                ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 3-13-cv-00208)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 27, 2017
             Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

                              (Opinion filed: July 28, 2017)
                                     ___________

                                        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.
         Pro se appellant Don Ickes appeals the District Court’s order granting summary

judgment to the defendants. For the reasons discussed below, we will affirm the District

Court’s judgment.

         On July 18, 2011, Trooper Laskey determined that a man later identified as Ickes

was driving 70 miles per hour in a construction zone where the speed limit was 50 miles

per hour. Trooper Laskey activated his siren to pull over Ickes. Instead of stopping

immediately, however, Ickes continued to drive for nearly another minute, ultimately

pulling into a secluded driveway. 1 Trooper Laskey continually asked for Ickes’s license

and registration, and while Ickes apparently pressed his documents against the inside of

his window, he refused Trooper Laskey’s direction to hand the papers to him.

         Trooper Laskey then called for backup. He also determined that Ickes’s license

plate was fraudulent; it was issued by an organization called the “Embassy of Heaven”

rather than any state. The officers later learned that the vehicle’s registration was also

issued by the Embassy of Heaven. Eventually, four more police officers arrived on the

scene. One officer, Trooper Grassmyer, recognized Ickes and said the officers should

immediately remove him from the car. Grassmyer stated in his declaration that he was

familiar with Ickes as a member of the sovereign-citizen movement, that Ickes had

previously had many run-ins with police officers, that there were standing orders to send

two cars to any calls to Ickes’s home, and that the driveway in which Ickes had stopped

his car belonged to another member of the sovereign-citizen movement who had

1
    This and much of what follows is depicted in a police dash-cam video.
                                              2
previously confronted a police officer with a gun. Trooper Grassmyer then asked Ickes

several times to open the door, and told him that if he did not, it would get opened.

       Ickes still refused to open the door. At this point, Laskey shattered the front-

passenger-side window, unlocked the door, and pulled Ickes out. Ickes claims that he

was pulled through broken glass and then tackled onto the concrete driveway. He was

handcuffed and placed in a police vehicle. During the drive to the police station, Ickes

complained of chest pains, and Trooper Laskey took him to a hospital. At the hospital,

Ickes told the doctor that his chest pains had started earlier that day, before his police

encounter. The doctor recommended that Ickes stay in the hospital overnight, but Ickes

declined to do so. The medical records report that Ickes had some abrasions on his right

forearm but no other injuries. Ickes has presented photographs of the shirt he said he was

wearing on the night of the incident, which has blood stains on the back.

       Ickes was eventually charged with, and convicted of, resisting arrest, harassment

(arising out of his efforts to file a criminal complaint against Trooper Laskey), and

several summary offenses concerning his speeding, his use of a fraudulent license plate

and registration, and his failure to yield to Officer Laskey’s vehicle and provide him with

documents upon request. See D.C. dkt. #7-2.

       Ickes then filed this action, naming as defendants Trooper Laskey, Trooper

Grassmyer, Trooper Augnst (who was also present), Ronald Givler (the chief of the

Greenfield Township Police Department), and Greenfield Township. He presented

several state-law claims and claims under 42 U.S.C. § 1983, including, among other
                                              3
things, excessive force. The parties filed motions to dismiss. The District Court granted

the motions in part and denied them in part, permitting only Ickes’s excessive-force

claims against all defendants and a few state-law claims against Givler to go forward.

After discovery, the Court then granted summary judgment to the defendants on the

remaining claims. Ickes filed a timely notice of appeal.

       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. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566

F.3d 86, 89 (3d Cir. 2009).

       Ickes devotes the majority of his opening brief to challenging the validity of his

state convictions. However, he cannot raise those claims here — both because he did not

present them in the District Court, see, e.g., Eid v. Thompson, 740 F.3d 118, 125 (3d Cir.

2014), and because a civil-rights action is not an appropriate vehicle to challenge his

conviction and sentence, see Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973). Further, because Ickes does not challenge either

the District Court’s partial grant of the defendants’ motions to dismiss or the Court’s

grant of summary judgment to Ronald Givler, he has waived any such challenges. See

United States v. Jackson, 849 F.3d 540, 555 n.13 (3d Cir. 2017).

       Thus, the only issue properly preserved for our review is the District Court’s grant

of summary judgment to the defendants on Ickes’s claim that they used excessive force in


                                             4
the course of arresting him. 2 In analyzing an excessive-force claim, courts examine

whether the force used was objectively reasonable, see Graham v. Connor, 490 U.S. 386,

397 (1989), considering (1) “the severity of the crime at issue,” (2) “whether the suspect

poses an immediate threat to the safety of the officers or others,” (3) “whether he is

actively resisting arrest or attempting to evade arrest by flight,” id. at 396, (4) “the

possibility that the persons subject to the police action are themselves violent or

dangerous,” (5) “the duration of the action,” (6) “whether the action takes place in the

context of effecting an arrest,” (7) “the possibility that the suspect may be armed,” and

(8) “the number of persons with whom the police officers must contend at one time,”

Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). “[T]he right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. The defendants are




2
  The defendants argue at some length that this claim is barred by the applicable statute of
limitations. As they acknowledge, however, the only time that they mentioned this
statute-of-limitations defense was in their answer to the complaint; they did not raise it in
support of their motion to dismiss, their motion for summary judgment, or at any other
time. While we may affirm a district court’s decision on grounds other than those relied
upon by that court, this principle applies only when “the issue which forms the basis of
our decision was before the lower court.” Holk v. Snapple Beverage Corp., 575 F.3d
329, 336 (3d Cir. 2009) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 904
n.1 (3d Cir. 1997)). Because the defendants’ only assertion of this defense was a cursory
statement in their answer, we conclude that this defense was not “before the lower court”
for these purposes. See Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153,
1160-61 (3d Cir. 1989); see also Brown v. Crowley, 312 F.3d 782, 787-88 (6th Cir.
2002); Violette v. Smith & Nephew Dyonics, Inc., 62 F.3d 8, 11 (1st Cir. 1995).

                                               5
entitled to summary judgment if their use of force was objectively reasonable as a matter

of law. See Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004).

       We agree with the District Court’s thorough analysis of the relevant factors. The

undisputed evidence reveals that Trooper Laskey made a legitimate traffic stop. See

United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006). He was entitled to ask

for Ickes’s license and registration and to order him to exit his vehicle. See New York v.

Class, 475 U.S. 106, 115 (1986); 75 Pa. Cons. Stat. § 1311(b). Ickes acted suspiciously

in passing up numerous safe places to pull over his car in favor of a secluded private

driveway. See Dunn v. Matatall, 549 F.3d 348, 354 (6th Cir. 2008). The officers were

entitled to rely on Trooper Grassmyer’s statement that Ickes had clashed with police in

the past. See Estate of Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005). Moreover,

while the officers did not see a weapon in plain sight, they could not rule out the

possibility that there was a weapon concealed in his car — or even that he could attempt

to use his car as a weapon. See Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016). A

reasonable officer might also think that Ickes’s fraudulent license plate and refusal to

comply with any requests suggested that he might be inclined to escalate his resistance.

See Davis v. Clifford, 825 F.3d 1131, 1136 (10th Cir. 2016). And, critically, the

defendants here did limit their use of force. Their force was directly related to their effort

to effectuate the arrest, 3 and the doctor who examined Ickes just after the incident


3
 Some factors unquestionably counsel against any serious use of force: Ickes was
originally stopped for relatively minor traffic violations, see Deville v. Marcantel, 567
                                              6
reported that Ickes had no acute injuries, only “some abrasions to his right forearm.”

D.C. dkt. #47-4 at 20.

       In these circumstances, we agree with the District Court that, even construing the

facts in Ickes’s favor, the officers’ use of force was objectively reasonable under the

relevant factors as a matter of law. 4 See Kopec, 361 F.3d at 777; Grider v. Bowling, 785

F.3d 1248, 1252 (8th Cir. 2015).

       Accordingly, we will affirm the District Court’s judgment.




F.3d 156, 167 (5th Cir. 2009) (per curiam), his resistance to the officers was passive, see
Coles v. Eagle, 704 F.3d 624, 629-30 (9th Cir. 2012), he was 76 years old at the time of
the incident, and, in the video, does not appear to present any physical threat to the
officers. However, as noted above, the officers did limit the amount of force they used.
4
  In addition to Ickes’s claim that the defendants used excessive force in breaking his
window, pulling him out of the car, and handcuffing him, he alleges that the defendants
used excessive force by applying the handcuffs too tightly, buckling his seatbelt too
tightly, and pushing him back in the seat of the police vehicle when he was leaning
forward. Having reviewed the evidence in light of the relevant factors, we agree with the
District Court that these applications of minimal force were objectively reasonable as a
matter of law. See Gilles v. Davis, 427 F.3d 197, 208 (3d Cir. 2005); see generally
Graham, 490 U.S. at 396 (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.”
(quotation marks omitted)). Accordingly, we will likewise affirm the District Court’s
judgment as to these claims.

                                             7
