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


3-26-2003

Ross v. Donkocik
Precedential or Non-Precedential: Non-Precedential

Docket 02-2410




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Recommended Citation
"Ross v. Donkocik" (2003). 2003 Decisions. Paper 715.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/715


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                                                                            NOT PRECEDENTIAL

                          THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT

                                           ___________

                                           No. 02-2410
                                           ___________

                                        CARMEN A. ROSS

                                                         Appellant

                                                 v.

                        DAVID DONKOCIK; BLAINE R. HANDERHAN

                                           ___________


                ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                                    (D.C. Civil No. 01-cv-00872)
                            District Judge: The Honorable Malcolm Muir

                                           ___________

                             Submitted Under Third Circuit LAR 34.1(a)
                                         March 11, 2003

               BEFORE: SLOVITER, NYGAARD, and ALARCON,* Circuit Judges.


                                      (Filed March 26, 2003)

                                           ___________




*        Honorable Arthur L. Alarcon, Senior Circuit Judge for the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
                                      OPINION OF THE COURT
                                           ___________


NYGAARD, Circuit Judge.

                Appellant, Carmen A. Ross, Sr. (‘Ross’), argues that the District Court erred

by granting summary judgment against him on his claim that Appellees used excessive

force during his arrest. On appeal, he contends that there exist issues of material fact and

that the officers lacked probable cause for his arrest. We review the grant of summary

judgment de novo, applying the familiar standard that a moving party is entitled to summary

judgment “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). Because we find no issues of material fact, and that Appellees are entitled to

judgment as a matter of law, we will affirm the District Court’s grant of summary judgment.

                The history of this case, its facts, and procedure are well known to counsel,

the parties, and the District Court. Inasmuch as we are writing a non-precedential opinion

and only for the parties herein, we will recite only those facts necessary to our holding.

This cases stems from events that transpired on May 17, 1999, when Appellees, Officers

David Donkocik and Blaine Handerhan, attempted to execute a lawful bench warrant for the

arrest of Carmen A. Ross, Jr., the Appellant’s son. Ross, Jr. lived with his parents at their

residence in Mount Carmel, Pennsylvania and the confrontation occurred when Officer

Donkocik informed Ross that he was there to arrest Ross, Jr. Even viewing the record in

                                                      2
the light most favorable to Ross, it appears uncontroverted that Ross resisted the lawful

attempts to arrest his son, thereby interfering with the administration of the law and

necessitating his own arrest. The force used by the officers was justified in light of Ross’s

attempts to evade his arrest by flight.

                After screaming obscenities at Officer Donkocik and refusing admittance for

the purpose of arresting Ross, Jr., Ross was informed that he was also under arrest pursuant

to 18 Pa.C.S. § 5101 for obstructing the administration of law or other governmental

function.1 Uncontroverted testimony showed that Ross physically resisted his own arrest

and attempted to flee the officers by escaping through his house and out the back door.

Ross’s attempt to flee resulted in the need for the officers to use force in subduing him.

The use of force consisted of tackling Ross and striking him on the back with a flashlight.

Appellant’s own son testified that the use of force transpired within a period of two to three

seconds and that it “all happened real fast” and was over “like wham bam, that’s it.”

                When a police officer uses force to effectuate an arrest, that force must be

reasonable. We have explained that while such an inquiry into reasonableness is objective,

we should “give appropriate scope to the circumstances of the police action, which are

often ‘tense, uncertain, and rapidly evolving.’” Groman v. Township of Manalapan, 47




1.       We note that Ross pleaded guilty to the charge of obstructing the administration of
law or governmental function on April 4, 2002 in the Court of Common Pleas of
Northumberland County. This guilty plea negates Ross’s current argument that Appellees
did not have probable cause to arrest him. See Heck v. Humphrey, 512 U.S. 477, 486–87
(1994).

                                                     3
F.3d 628, 634 (3d. Cir. 1995) (quoting Graham v. Conner, 490 U.S. 386, 397 (1989)).

The Supreme Court has endorsed several factors to be used in assessing the reasonableness

of the force. One of which is “whether [the Appellant] is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at 397. Here, testimony showed

that Ross pulled away from the grasp of Officer Handerhan and ran back through his kitchen

in an attempt to flee the officers. As the District Court noted, the kitchen provides access

to potentially dangerous weapons, like knives. Officers Donkocik and Handerhan simply

used the force necessary to effectuate an arrest in a “tense, uncertain, and rapidly evolving”

situation created when Ross forcibly attempted to flee.

                  We conclude that there is simply no evidence to support Ross’s argument

that excessive force was used. Summary judgment is appropriate because “the evidence

would not support a reasonable jury finding that the police officers' actions were

objectively unreasonable.” Groman, 47 F.3d at 634. Thus, we will affirm the order of the

District Court.




                                                     /s/ Richard L. Nygaard
                                                     Circuit Judge
