                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2005

Cummings v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2974




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"Cummings v. Philadelphia" (2005). 2005 Decisions. Paper 937.
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                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEAL
                            FOR THE THIRD CIRCUIT


                                     No. 04-2974


                              GREGORY CUMMINGS;
                                SHIRLEY BAKER

                                          v.

                            CITY OF PHILADELPHIA;
                        TED RYAN; KATHERINE SESSIONS

                                 Gregory Cummings,

                                               Appellant


                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Civil No. 03-cv-0034)
                       District Judge: Hon. Herbert J. Hutton


                                 Argued June 2, 2005

          BEFORE: FUENTES, GREENBERG and COWEN, Circuit Judges

                                (Filed: June 30, 2005)

Tshaka H. Lafayette, Esq. (Argued)
Lafayette & Associates
21 South 12 th Street
Suite 1050
Philadelphia, PA 19107

Counsel for Appellant
Elise M. Bruhl, Esq.
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102

Counsel for Appellees




                                         OPINION


COWEN, Circuit Judge.

       Gregory Cummings appeals the District Court’s order denying his motion for leave

to file a second amended complaint and granting Defendants, Detective Ted Ryan and the

City of Philadelphia’s, Motion for Summary Judgment. Cummings contends that the

District Court: (1) abused its discretion by denying his motion to amend his complaint as

he sought only to provide additional information and was not introducing a new cause of

action; (2) erred in holding that the warrant application, as a matter of law, established

sufficient probable cause to support the issuance of the warrant despite certain omissions;

(3) erred in not finding liability based on the false statements contained in the criminal

complaint which was affirmed by Detective Ryan and submitted as part of the application

for the arrest warrant. We have jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

As we write solely for the parties, we only provide a brief recitation of the facts.




                                              2
       Gregory Cummings was arrested on January 2, 2001, pursuant to two warrants

obtained by Detective Ryan. The first warrant, No. 254514, arose out of complaint made

by Katherine Sessions, his ex-girlfriend, alleging that Cummings broke her front window

and left a threatening note. The note concerned their nine year old son over whom there

was an ongoing custody dispute.

       The second warrant, No. 254785, arose out of a complaint made by Tiffany

Robinson, Sessions’ daughter. She explained that Shirley Baker and Gregory Cummings

approached her in a car. After screaming out the window “[l]isten you little bitch, tell

your mother to give me my grandson back, or I’ll kill her,” Baker fired a gun at her three

times. (App. at 51a.) The day after the alleged incident, Detective Ryan interviewed the

crossing guard who was working at the time of, and in the same vicinity as, the shooting.

The crossing guard did not recall anything out of the ordinary occurring the previous day.

Further, Detective Ryan did not find the gun shells at the scene of the alleged incident.

Although Detective Ryan submitted an affidavit of probable cause in support of the

issuance of the arrest warrant, he did not include these mitigating factors.

       Following his arrest, Cummings remained in pretrial incarceration for 17 months

and was ultimately acquitted of all charges.

       Cummings filed a complaint on January 2, 2003 against the City of Philadelphia,

Detective Ryan (together, the “Defendants”) and Katherine Sessions.1 A few months

   1
     As the Defendants explain, the record does not indicate that Sessions was served
with process or entered an appearance. Accordingly, she does not appear to be a party to

                                               3
later, the complaint was amended to add Shirley Baker as a party plaintiff (together with

Cummings, the “Plaintiffs”). The complaint included claims pursuant to 42 U.S.C. §

1983 for alleged Fourth Amendment rights violations. The District Court denied

Plaintiffs’ motion to file a second amended complaint and granted Defendants’ motion

for summary judgment. The District Court subsequently denied Plaintiffs’ motion for

reconsideration and Cummings brought this appeal.

       We exercise plenary review over the District Court’s order granting defendant’s

motion for summary judgment. See Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d

669, 679 (3d Cir. 2003). We apply the same test required of the district court and view all

of the evidence in the light most favorable to the non-moving party.

       Cummings contends that Detective Ryan omitted the following facts from the

affidavit of probable cause with reckless disregard for the truth: (1) Karo Sharpe, the

school crossing guard on duty at the time of the shooting, reported to Detective Ryan the

day after the shooting that she did not observe anything unusual the previous day; (2)

Detective Ryan searched the alleged crime scene and did not locate the bullet casings; and

(3) Detective Ryan never questioned Cummings about his whereabouts at the time of the

alleged incident.

       Generally, to prevail under a § 1983 claim, a plaintiff must establish that the

defendant (1) acted under color of state law and (2) deprived the plaintiff of a right


the action and does not prevent judgment from being final. See D.R. by L.R. v. Middle
Bucks Vocational School, 972 F.2d 1364, 1366 (3d Cir. 1992).

                                              4
protected by the Constitution. See Groman v. Township of Manalapan, 47 F.3d 628, 633

(3d Cir. 1995). To succeed on a § 1983 claim for a Fourth Amendment violation due to a

false arrest, plaintiff must prove that (1) the officer “knowingly and deliberately, or with a

reckless disregard for the truth, made false statements or omissions that create a falsehood

in applying for a warrant;” and (2) that “such statements or omissions are material, or

necessary, to the finding of probable cause.” Wilson v. Russo, 212 F.3d 781, 786-87 (3d

Cir. 2000) (internal quotation marks and citations omitted); see also, Franks v. Delaware,

438 U.S. 154 (1978). Omissions are made with reckless disregard “if an officer

withholds a fact in his ken that any reasonable person would have known that this was the

kind of thing the judge would wish to know.” Wilson, 212 F.3d at 788 (internal quotation

marks and citations omitted).

       The District Court concluded that although Detective Ryan had no responsibility to

report that he never questioned Cummings on his whereabouts, he did act “with reckless

disregard of the truth by omitting exculpatory facts about the crossing-guard and the

bullet casings from the affidavit of probable cause.” (App. at 16A.) However, the Court

found that the omissions were not “material or necessary, to the finding of probable

cause,” because even after inserting the omitted facts the warrant establishes probable

cause. (App. at 17-18.) Accordingly, the Court granted Defendant’s motion for summary

judgment.




                                              5
       Cummings asserts that the District Court erred by holding that the omissions

contained in the affidavit of probable cause were not materially sufficient to undermine a

finding of probable cause. He further argues that the District Court erred “by interpreting

the fact that Baker was accused of shooting at Robinson in a manner unfavorable to

Cummings.” (Appellant’s Br. at 27.) We disagree.

       The District Court properly concluded that the omissions were made with reckless

disregard for the truth. We also agree with the District Court’s conclusion that the

omissions were not material. The test for determining materiality is to insert the facts

recklessly omitted and determine whether the “corrected” warrant establishes probable

cause. Wilson, 212 F.3d at 789 (citing Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.

1997)). In assessing whether probable cause exists, the inculpatory evidence should be

weighed against the exculpatory evidence to determine whether a reasonable person

would believe an offense has been committed by the suspect. Here, as the District Court

explained:

       [T]he strongest inculpatory evidence is the positive identification of
       Plaintiffs by the victim Tiffany Robinson. There is also evidence of
       the custody dispute and the protection from abuse order issued
       against Cummings. The exculpatory facts recklessly omitted by
       Detective Ryan concern the lack of evidence from the crime scene,
       including the crossing guard’s statement and the lack of bullet shells.

(App. at 17A.) These exculpatory facts are insufficient to vitiate the probable cause

established by the inculpatory evidence.




                                             6
       We find Cummings’ alternative argument meritless—the District Court did not

interpret the fact that Baker was accused of shooting at Robinson in a manner unfavorable

to him. Rather, there was sufficient evidence for a reasonable person to conclude that

Cummings was involved in the alleged shooting offense. Accordingly, the District Court

did not err in granting Defendant’s motion for summary judgment.

       Because we affirm the District Court’s conclusion that there was probable cause to

support the issuance of the arrest warrant involving the shooting incident as a matter of

law, Cummings’ request to amend his complaint to add additional facts involving the

other arrest warrant is dismissed as moot. Cummings cannot maintain a cause of action

for unlawful arrest under the warrant involving the broken window because he was

lawfully arrested under the warrant involving the shooting incident.

       Similarly, because we affirm the District Court’s finding that the affidavit provided

sufficient probable cause to support the issuance of the warrant, we dismiss as moot

Cummings’ argument regarding liability based on the false statements contained in the

criminal complaint.2 So long as the affidavit of probable cause provided adequate support

for the warrant, any defects in the criminal complaint would not vitiate that finding of

probable cause.




   2
     We refrain from determining whether the District Court erred in finding that
“Detective Ryan’s potential liability lies only in the Affidavit of Probable Cause, the
document he prepared,” and not in the Criminal Complaint prepared by the District
Attorney’s Office. (App. at 14A, n.8.)

                                             7
      For the foregoing reasons, we will affirm the order of the District Court granting

Defendants’ motion for summary judgment and denying Plaintiffs’ motion to file a

second amended complaint.




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