                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-1927
                                     ___________

                                  ASHLEY ADAMS,
                                            Appellant

                                           v.

    OFFICER ERIC SELHORST, New Castle County Police, in official capacity and
   individually; OFFICER DOE 1, New Castle County Police, in official capacity and
     individually; Officer Doe 2, New Castle County Police, in official capacity and
                                      individually
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of Delaware
                        (D.C. Civil Action No. 09-cv-00735)
                      District Judge: Honorable Stewart Dalzell
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 25, 2011
           Before: SLOVITER, SMITH and GREENBERG, Circuit Judges

                           (Opinion filed: October 26, 2011 )
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Ashley Adams appeals pro se from the District Court‟s order granting the

defendants‟ motion for summary judgment in a civil rights suit arising from Adams‟
arrest for allegedly sending a harassing text message to her neighbor. For the reasons that

follow, we will affirm.

       Because we write primarily for the parties, who are familiar with the facts, we will

not recite them except as necessary to the discussion. On October 1, 2007, Yaw and

Ninette Aidoo contacted the New Castle County Police Department to complain that Mr.

Aidoo had received a harassing text message on his cellular telephone. That message

stated, “After Ninette goes to sleep you can sneak over and give me what I really need, it

has been a long time.” Officer Erich Selhorst responded to the Aidoo residence. Mr.

Aidoo provided Officer Selhorst with the number from which the text message had been

sent, stated that Mrs. Aidoo had repeatedly called that number but that there was no

answer, and voiced his suspicion that the message had been sent by Adams, who lived on

the same street. Mr. Aidoo believed that Adams may have obtained his unlisted cellular

phone number through her employment at a utility company. Officer Selhorst performed

a search of the Criminal Justice Information System (“CJIS”) and discovered that the

phone number from which the text message originated had been used previously by

Adams in a separate police matter.

       The next day, Officer Selhorst and Officer John Mancuso spoke with Adams.

Adams stated that while she knew of the Aidoos, she did not know their names and

denied sending the text message. She also confirmed that her cellular telephone number

matched the number that Mr. Aidoo identified as the source of the text message. In

addition, Adams acknowledged receiving three calls from an unknown telephone number
                                             2
the previous evening. When Officer Selhorst asked Adams if she still worked for the

power company, Adams stated that her employment was irrelevant. Based on the

evidence, Officer Selhorst drafted a warrant that charged Adams with harassment. See

11 Del. C. § 1311(a)(2). After the warrant was signed by a judge, Officer Selhorst had it

filed by a data officer.

       On October 4, 2007, Officer Selhorst contacted the power company, which

confirmed that Adams worked there, but indicated that Mr. Aidoo‟s cellular telephone

number did not appear in his account records. That evening, at 9:46 p.m., Officers

Selhorst and Mancuso returned to Adams‟ home to execute the arrest warrant. The

officers met Adams in her garage, where she was placed in handcuffs. Adams then

informed the officers that she had turned herself in earlier that day at police headquarters.

When the officers confirmed that account through a check of the CJIS, Adams was

released. The police officers left Adams‟ home at 10:04 p.m.

       Adams filed a pro se complaint on October 1, 2009. She named as defendants

Officer Selhorst, as well as two unidentified officers who allegedly were also present

when she was arrested.1 The District Court liberally construed Adams‟ pro se complaint


1
  The District Court ordered the defendants to provide the names of the two unidentified
officers, who were listed in Adams‟ complaint as “Officer Doe 1” and “Officer Doe 2.”
In response, the defendants indicated that to the best of their knowledge, Officer
Mancuso was the only other police officer present with Officer Selhorst when Adams
was arrested. In her response to Officer Selhorst‟s motion for summary judgment,
Adams asked for permission to file an amended complaint naming Officer Mancuso. The
District Court denied this request, holding that such an amendment would be futile,
largely for the same reasons that it entered summary judgment in favor of Officer
                                              3
to allege federal civil rights and state law causes of action for false arrest and false

imprisonment, use of excessive force, malicious prosecution, selective enforcement,

failure to train, abuse of process, slander, infliction of emotional distress, assault and

battery, and trespass. After discovery was completed, the parties filed cross-motions for

summary judgment. The District Court granted the defendants‟ motion, denied Adams‟

motion, and dismissed all claims with prejudice. Adams v. Selhorst, 779 F. Supp. 2d 378

(D. Del. 2011). Adams timely appealed.

       We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of an order

granting summary judgment is plenary. Curley v. Klem, 298 F. 3d 271, 276 (3d Cir.

2002). Summary judgment is proper where, viewing the evidence in the light most

favorable to the nonmoving party and drawing all inferences in favor of that party, there

is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c) (2010); Kaucher v. Cnty. of Bucks, 455 F.3d 418,

422-23 (3d Cir. 2006).

       Adams alleged that she was falsely arrested and falsely imprisoned because

Officer Selhorst lacked probable cause. An arrest made without probable cause creates a

cause of action for false arrest under 42 U.S.C. § 1983. See Dowling v. City of Phila.,

855 F.2d 136, 141 (3d Cir. 1988). Similarly, “where the police lack probable cause to


Selhorst. Under these circumstances, we conclude that the denial of Adams request to
amend her complaint was not an abuse of discretion, Alvin v. Suzuki, 227 F.3d 107, 121
(3d Cir. 2000), and that the District Court properly granted summary judgment in favor of
the “Doe” defendants.
                                              4
make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a

detention pursuant to that arrest.” Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d

Cir. 1995). “[P]robable cause to arrest exists when the facts and 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 to be arrested.”

Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). Where, as here, an arrest is

made pursuant to a warrant, “[a] plaintiff may succeed in a § 1983 action for false arrest

. . . if [he] shows, by a preponderance of the evidence: (1) that the police 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) (quoting Sherwood v.

Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)).

       We agree that Officer Selhorst had probable cause to arrest Adams for harassment.

In the warrant affidavit, Officer Selhorst stated that he observed a harassing text message

on Mr. Aidoo‟s cellular telephone, explained that Mr. Aidoo believed that Adams may

have sent the message because of an ongoing dispute, and noted that the text message had

been sent from a telephone number which belonged to Adams (as confirmed by Adams

herself and by a search of the CJIS). Officer Selhorst‟s affidavit also noted, however,

that Adams had denied sending the message.


                                              5
       In support of her claims, Adams asserted that the Aidoos fabricated the text

message, that Officer Selhorst should have subpoenaed her telephone records, and that

the allegations in the warrant affidavit did not correspond with the police reports. These

contentions are unavailing. Adams failed to show that Officer Selhorst had reason to

doubt the evidence which supported the arrest warrant. Moreover, the absence of

Adams‟ telephone records did not create a falsehood in applying for the warrant. See

Baker v. McCollan, 443 U.S. 137, 145-46 (1979) (“[W]e do not think a sheriff executing

an arrest warrant is required by the Constitution to investigate independently every claim

of innocence”). To the extent that the information in the arrest warrant affidavit differed

from that in the police reports, those discrepancies are not material to the finding of

probable cause. Accordingly, because the evidence, viewed most favorably to Adams,

reasonably would not support a contrary factual finding, summary judgment was proper

on the false arrest and false imprisonment claims.2 Sherwood, 113 F.3d at 401.


2
 Furthermore, because Officer Selhorst had probable cause to arrest Adams, her
malicious prosecution claim must fail. See, e.g., Estate of Smith v. Marasco, 318 F.3d
497, 521 (3d Cir. 2003) (holding that a malicious prosecution plaintiff must show, inter
alia, that the criminal proceeding was initiated without probable cause). In any event, we
agree with the District Court that there is no evidence in the record that Officer Selhorst
acted with malice. McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009)
(describing elements of malicious prosecution claim). Relatedly, the District Court
properly rejected Adams‟ abuse of process claim because she failed to demonstrate that
Officer Selhorst pursued criminal charges against her for any reason other than intended
by law. Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989) (“In contrast to a section
1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of
process lies where „prosecution is initiated legitimately and thereafter is used for a
purpose other than that intended by the law.‟” (quoting Jennings v. Shuman, 567 F.2d
1213, 1217 (3d Cir. 1977))).
                                               6
       We also agree that despite what the District Court deemed “an unusual twist,”

namely, the fact that the warrant had already been executed when Adams was arrested,

Officer Selhorst is entitled to qualified immunity. To determine whether a government

officer is entitled to qualified immunity, we ask (1) whether the officer violated a

constitutional right, and (2) whether the right was clearly established, such that “it would

[have been] clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 201-02 (2001). “[W]e have generally

extended immunity to an officer who makes an arrest based on an objectively reasonable

belief that there is a valid warrant.” Berg v. Cnty. of Allegheny, 219 F.3d 261, 273 (3d

Cir. 2000). “Nevertheless, an apparently valid warrant does not render an officer immune

from suit if his reliance on it is unreasonable in light of the relevant circumstances.” Id.

Those “circumstances include, but are not limited to, information that the officer

possesses or to which he has reasonable access, and whether failing to make an

immediate arrest creates a public threat or danger of flight.” Id. Here, at the time of

Adams‟ arrest, Officer Selhorst had access to the CJIS, which indicated that Adams had

turned herself in earlier that day. Under the circumstances, however, we conclude that a

reasonable officer would have believed that his conduct was lawful in light of the

information he possessed at the time. Significantly, the warrant was issued only the day

before Officer Selhorst went to arrest Adams, cf. Torres Ramirez v. Bermudez Garcia,

898 F.2d 224, 227 (1st Cir. 1990) (noting that “the jury could have believed that [court

employee] was reckless by not checking his own records before recirculating a warrant
                                              7
that was five months old.”), and she was released immediately after Officer Selhorst

confirmed her claim that the warrant had already been executed. Cf. Pena-Borrero v.

Estremeda, 365 F.3d 7, 13 (1st Cir. 2004) (“While the officers arguably were simply

negligent in failing to check on the warrant before they acted on it, following through on

the arrest and detention once confronted with appellant‟s documents reflected a much

more deliberate disregard for whether the warrant remained valid.”); Berg, 219 F.3d at

267 (noting that constable refused to look at release documents demonstrating that

arrestee was no longer on parole).

       Adams also alleged that Officer Selhorst used excessive force. When a police

officer uses force to effectuate an arrest, that force must be reasonable. Graham v.

Connor, 490 U.S. 386, 394 (1989). Courts considering whether the use of force was

objectively reasonable should consider, inter alia, the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers, whether she

actively is resisting arrest, the possibility that the suspect is violent or armed, and the

number of persons with whom the police officers must contend at one time. Estate of

Smith, 318 F.3d at 515. While the question of reasonableness is frequently one that

should be left to the ultimate factfinder, summary judgment is appropriate when the court

resolves all factual disputes in favor of the plaintiff and concludes that the use of force

was objectively reasonable under the circumstances. See Abraham v. Raso, 183 F.3d

279, 290 (3d Cir. 1999) (declining to grant summary judgment where there were genuine

issues of fact). In this case, Adams was arrested for the misdemeanor charge of
                                               8
harassment, she did not resist, and there is no indication that she was violent or armed.

Officer Selhorst placed Adams in handcuffs, but removed them several minutes later after

confirming that she had already turned herself in on the arrest warrant. We agree that

Adams has not produced evidence from which a finder of fact could arguably infer that

Officer Selhorst‟s use of force was objectively unreasonable in light of the circumstances

surrounding her arrest.3

       According to Adams, Officer Selhorst enforced the harassment law in a racially

discriminatory fashion. Selective enforcement of a facially valid law is unconstitutional

under the Equal Protection Clause. Holder v. City of Allentown, 987 F.2d 188, 197 (3d

Cir. 1993). To establish a selective enforcement claim, Adams must show “(1) that [s]he

was treated differently from other similarly situated individuals, and (2) that this selective

treatment was based on an unjustifiable standard, such as race, or religion, or some other

arbitrary factor, or to prevent the exercise of a fundamental right.” Dique v. N.J. State

Police, 603 F.3d 181, 184 n.5 (3d Cir. 2010) (internal quotation marks, alterations

omitted). Adams presented no evidence that similarly situated individuals were treated

differently. Accordingly, the District Court properly entered summary judgment in favor

of Officer Selhorst on the selective enforcement claim.




3
 In her response to Officer Selhorst‟s motion for summary judgment, Adams provided an
account of her arrest. Because this statement was neither an affidavit nor a sworn
declaration, the District Court properly refused to consider it. See Woloszyn v. Cnty. of
Lawrence, 396 F.3d 314, 323 (3d Cir. 2005); Fed. R. Civ. P. 56(c) (2010).
                                              9
       Adams also attempted to make out a municipal liability claim for failure to train

under Monell v. Dep‟t of Soc. Servs. of N.Y., 436 U.S. 658 (1978). Notably, though,

Adams‟ complaint named only individual police officers as defendants. Even if she had

named a proper defendant, however, we agree that she did not point to any evidence that

a constitutional violation occurred as a result of an approved municipal or governmental

custom. Accordingly, the District Court was correct to grant summary judgment on this

claim. Woloszyn, 396 F.3d at 325-26.

       In her complaint, Adams alleged that the police officers who were present during

her arrest failed to intervene when the other officers allegedly violated her constitutional

rights. “Courts have held that a police officer has a duty to take reasonable steps to

protect a victim from another officer‟s use of excessive force, even if the excessive force

is employed by a superior.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).

However, as described above, Adams failed to demonstrate that her underlying

constitutional rights were violated. Therefore, she cannot maintain a claim for failure to

intervene. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) (stating that “[i]n order

for there to be a failure to intervene, it logically follows that there must exist an

underlying constitutional violation”). In addition, we agree with the District Court that

Adams offered no evidence related to the elements of a conspiracy claim under 42 U.S.C.

§ 1985. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 802 (3d Cir. 2010)

(“To survive a motion for summary judgment on [plaintiff‟s] section 1985(3) claim, [the

plaintiff] first was required to put forward facts that would allow a reasonable factfinder
                                              10
to conclude that [the defendants] formed a conspiracy to deprive him of his rights.”).

Because Adams failed to state a conspiracy claim, the District Court properly ruled that

her related § 1986 claims also failed.4 Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d

Cir. 1980).

       Finally, we agree that Officer Selhorst is immune from Adams‟ common law tort

claims. The Delaware Tort Claims Act generally immunizes “governmental entities and

their employees . . . from suit on any and all tort claims seeking recovery of damages.”

10 Del. C. § 4011(a); see also Couden v. Duffy, 446 F.3d 483, 498 (3d Cir. 2006).

Although this provision is not applicable when the employee‟s actions “were not within

the scope of employment” or “were performed with wanton negligence or willful and

malicious intent,” § 4011(c), Adams has not established that those elements are present

here. Indeed, Officer Selhorst was clearly acting as a police officer when he arrested

Adams, and, as described above, his actions were reasonable. Moreover, for essentially

the reasons provided by the District Court, there is no merit to Adams‟ allegations of

slander, intentional infliction of emotional distress, trespass, and assault and battery.



4
  We also agree that 42 U.S.C. §§ 1981 and 1988 are not relevant to Adams‟ claims. See
Brown v. Philip Morris, Inc., 250 F.3d 789, 796 (3d Cir. 2001) (noting that § 1981
prohibits race discrimination in making and enforcing contracts); Robertson v. Wegmann,
436 U.S. 584, 588 (1978) (holding that pursuant to § 1988(a), where there is no
applicable federal rule, courts are to consider “common law, as modified and changed by
the constitution and statutes of the [forum] State”). Furthermore, the District Court
properly rejected Adams‟ attempt to bring a claim under the Delaware Constitution and a
non-existent Delaware statute.

                                              11
       For the foregoing reasons, we will affirm the judgment of the District Court. 5




5
 We grant Officer Selhorst‟s Motion for Leave to File Supplemental Appendix and
Adams‟ Motion for Leave to File Supplemental Appendix, although we do not consider
any documents that are not part of the District Court record. United States ex rel. Willis
v. United Health Group, Inc., -- F.3d --, 2011 WL 2573380, at *4-5 (3d Cir. 2011).
                                             12
