                                                                                   NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEALS
                                   FOR THE THIRD CIRCUIT
                                     __________________

                                                  No. 08-2493

                                                NICKY POPE,
                                                         Appellant

                                                         v.

 ROSTRAVER SHOP ‘N SAVE; HOWARD RUSSELL, individually and in his official
capacity as the Store Manager for Rostraver Shop ‘N Save; ROSTRAVER TOWNSHIP;
   ROSTRAVER TOWNSHIP POLICE DEPARTMENT; and OFFICER GEORGE
 MILKENT, individually and in his capacity as an Officer with the Rostraver Township
                                   Police Department
                                 __________________

                             Appeal from the United States District Court
                              for the Western District of Pennsylvania
                                       Case No. 06-cr-01009
                                   (Honorable Nora Barry Fischer)
                                       __________________

                            Submitted pursuant to Third Circuit LAR 34.1
                                         February 5, 2010

       Before McKee, Chief Judge, Rendell, Circuit Judge and Davis, District Judge *
                             (Opinion Filed: July 22, 2010)

                                       OPINION OF THE COURT

McKee, Chief Judge:




        *
          Honorable Legrome D. Davis, United States District Judge for the Eastern District of Pennsylvania, sitting
by designation.

                                                         1
        Plaintiff appeals the district court’s order granting summary judgment in favor of

Defendants and denying Plaintiff’s cross-motion for summary judgment. For the reasons

set forth below, we will affirm.

                                                           I.1

        As we write primarily for the parties, we need not recite the factual or procedural

background except insofar as is useful to our discussion. This action arises from a

situation that occurred in a Rostraver Shop ‘N’ Save grocery store after employees of the

store briefly detained Ms. Pope, and called police because they thought she had stolen

something from the shelves of the store. Although Pope’s brief states four separate

appellate issues, they all amount to a challenge to the district court’s denial of her claim

for false imprisonment.           2



        Defendants respond by claiming that Pope was not totally confined or restrained

and that she therefore has not established a prima facie case of false imprisonment.

Alternatively, Defendants argue that they have immunity under Pennsylvania’s Retail

Theft Act, see 18 Pa. C.S.A. § 3929(d), because they had probable cause to question and

search Pope based upon a reasonable belief that she was concealing an item beneath her

clothing that she had not purchased and had no intend to purchase.


        1
           Our standard of review is plenary. In reviewing a grant of summary judgment we view the evidence in
the light most favorable to the non-moving party and affirm the grant of summary judgment if there is no genuine
issue of material fact. Startzell v. City of Philadelphia, 533 F.3d 183, 192 (3d Cir. 2008).

        2
            W e have appellate jurisdiction to review the district court’s final judgment under 28 U.S.C. § 1291.


                                                            2
       False imprisonment in Pennsylvania is the unlawful detention of another person.

Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). In order to establish a prima

facie case of false imprisonment, a plaintiff must produce sufficient evidence to support a

finding that: (1) the defendant acted with the intent to confine the plaintiff within fixed

boundaries; (2) the defendant’s act directly or indirectly confined the plaintiff; and (3)

plaintiff was aware of the confinement or harmed by it. Gagliardi v. Lynn, 285 A.2d 109,

111 n.2 (Pa. 1971); Pennoyer v. Marriott Hotel Services, Inc., 324 F. Supp. 614, 620

(E.D. Pa. 2004); Caswell v. BJ’s Wholesale Co. et. al., 5 F. Supp. 2d 312, 319 (E.D. Pa.

1998); Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 540-541 (E.D. Pa.

1982); Restatement (Second) of Torts § 35.

       A plaintiff cannot establish a claim for false imprisonment if there is a known

means of escape involving nothing more than slight inconvenience. In other words, the

confinement must be complete. Caswell, 5 F. Supp. at 319. Moreover, in the absence of

physical force or physical barriers, plaintiff must make some attempt to determine

whether s/he is actually confined. Id. Absent force or physical barriers, a claim of false

imprisonment can not rest upon a mere belief that one is confined. Chicarelli, 551 F.

Supp. at 451.

                                             II.

       This record does not support a finding that Pope was totally confined even when

viewed in the light most favorable to her. Pope never asked whether she could leave the


                                              3
store. In fact, her own deposition testimony establishes that she voluntarily remained in

the store to await the arrival of the police. (J.A. 163a). Thus, a safe means of escape, the

front entrance of the store, would have been available had she not decided to remain until

the police arrived. In fact, Pope simply walked out the front door, unescorted, to speak

with Officer Milkent once the police did arrive. Although we certainly do not fault Ms.

Pope for deciding to wait for the police to arrive in the face of accusations that she was a

thief and concealing stolen items under her clothing, we nevertheless can not overlook the

fact that her decision negates her ability to establish the total confinement that is required

for a claim of false imprisonment.

       Pope attempts to rely on Pinkett v. Super Fresh Food Markets, Inc., 1988 U.S.

Dist. Lexis 2553 (E.D. Pa. 1988), in arguing that the evidence is sufficient to allow a jury

to find that she was completely restrained by the duress and coercion even if she was not

physically restrained, and that a jury could therefore find she was falsely imprisoned.

However, a store employee in Pinkett actually grabbed the plaintiff by the arm while

telling her that she was not going to leave until she opened her bag. The plaintiff there

was able to leave only after she called a store security officer and showed him the

contents of her handbag. We think the physical force that was present in Pinkett is

sufficient to distinguish that case from this one.

                                             III.




                                               4
       For the reasons set forth above, we affirm the district court’s grant of summary

judgment based on Plaintiff’s failure to establish a prima facie case of false

imprisonment.




                                              5
