                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                              No. 13-2222
                             _____________

MYRON WILLIAMS, individually and as Administrator Ad Prosquendum of the
ESTATE OF BRENDA WILLIAMS, LOUISE WILLIAMS, individually and as
               guardian ad litem for A.W., a minor,

                                Appellants

                                    v.

  CITY OF SCRANTON; CITY OF SCRANTON POLICE DEPARTMENT;
     OFFICER JAMES SMITH, individually and in his official capacity
           as a police officer for the Scranton Police Department;
          ERIC JORDAN, individually and in his official capacity
           as a police officer for the Scranton Police Department;
        ROBERT STANEK, individually and in his official capacity
           as a police officer for the Scranton Police Department;
         JASON KNOCH, individually and in his official capacity
           as a police officer for the Scranton Police Department;
    COMMUNITY LIFE SUPPORT; KEVIN JOSEPH YETKOWSKAS,
       individually and as an employee for Community Life Support;
 DAN FLYNN, individually and as an employee for Community Life Support;
     LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES;
                    PENNSYLVANIA STATE POLICE;
SCRANTON COUNSELING CENTER; COMMUNITY MEDICAL CENTER;
                COMMONWEALTH OF PENNSYLVANIA
                                ____________

              On Appeal from the United States District Court
                  for the Middle District of Pennsylvania
                            (No. 3:10-CV-388)
               District Judge: Honorable A. Richard Caputo
                               ____________




                                    1
                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 27, 2014

Before: FUENTES and SHWARTZ, Circuit Judges, and ROSENTHAL, District Judge.1

                              (Opinion Filed: May 7, 2014)
                                     ____________

                               OPINION OF THE COURT
                                    ____________


FUENTES, Circuit Judge:

       This action arises from the fatal shooting of Brenda Williams by three police

officers of the Scranton Police Department (“SPD”). Myron Williams, the administrator

of Brenda Williams’s estate, and Louise Williams, the guardian of Brenda Williams’s

minor daughter, sued the City of Scranton, the SPD,2 and several SPD officers, alleging

various state and federal law claims. The District Court granted summary judgment in the

defendants’ favor. For the reasons that follow, we affirm.

                                            I.

       On May 28, 2009, the SPD received a call from Williams’s neighbors regarding a

domestic disturbance. In response to the call, SPD Officers James Smith and Eric Jordan

went to the complainants’ home. The complainants reported to the officers that Williams



1
 The Honorable Lee H. Rosenthal, United States District Judge for the Southern District
of Texas, sitting by designation.



2
 The City of Scranton and the SPD are treated as a single entity for purposes of this case.
See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997).
                                             2
had been repeatedly banging on their front door and yelling at them. Smith had interacted

with Williams several times before. Based on his previous interactions with Williams, he

thought she might have a mental health condition.

       After speaking with the complainants, the officers went to Williams’s apartment

building. When they arrived and knocked on the front door to the building, Williams

answered the door without any clothing on. After asking the officers an unintelligible

question, she slammed the door and ran upstairs. The officers entered the building,

followed Williams upstairs, and entered her residence through the open front door. When

they attempted to speak with Williams, she cursed and yelled incoherently. At one point,

she said that “Janie” or “Jamie” was going to heaven; Smith goes by the name Jamie.

       The officers looked around Williams’s apartment for weapons and drugs and

observed several knives in the kitchen on top of the oven. The officers called for an

ambulance and EMTs for a possible 302 Commitment,3 and they notified their shift

supervisor that they might be going over their shift.

       An EMT and paramedic responded with an ambulance, and Corporal Robert

Stanek and Officer Jason Knoch arrived shortly afterward. Stanek, the ranking officer on

the scene, had performed roughly seventy 302 commitments. He made the final decision

not to have Williams involuntarily committed. Stanek ordered Knoch to copy Williams’s

information from a previous citation lying on a nearby table so that a disorderly conduct


3
  Section 302 of Pennsylvania’s Mental Health Procedures Act provides for the
involuntary commitment, for purposes of emergency examination and treatment, of a
person who is a danger to themselves or others due to a mental illness. 50 Pa. Cons. Stat.
Ann. § 7302.
                                             3
citation could be sent to her later. As Knoch was copying down the information, Williams

quickly emerged from her bedroom, passed behind him, and entered the kitchen.

       The officers heard the sounds of clinking metal coming from the kitchen, at which

point Smith informed his colleagues about Williams’s collection of kitchen knives.

Williams then exited the kitchen with a large knife. The officers pulled their service

weapons and ordered Williams to stop and put down her knife, but she refused and

moved toward Smith, pointing the knife at him. After issuing several warnings, which

Williams ignored, Stanek, Smith, and Knoch shot Williams. She fell to the ground, on top

of her knife. She was pronounced dead later that day.

       Williams’s surviving relatives, Myron Williams and Louise Williams, brought this

action under 42 U.S.C. § 1983 and Pennsylvania state law. They asserted a Fourth

Amendment excessive force claim, a Fourteenth Amendment failure-to-treat claim, and a

Fourteenth Amendment state-created danger claim against the SPD officers. They also

asserted Monell claims for municipal liability against the City of Scranton, alleging that

the city did not establish sufficient procedures for responding to mentally ill individuals

and did not adequately train and/or supervise its police officers. Additionally, they

brought wrongful death and survival claims against the City of Scranton and the SPD

officers pursuant to Pennsylvania state law.

       The District Court granted summary judgment in favor of the SPD officers and the

City of Scranton. Myron and Louise Williams appealed.4


4
 We exercise plenary review over a grant of summary judgment. Curley v. Klem, 298
F.3d 271, 276 (3d Cir. 2002). Summary judgment should be granted “if the movant
                                               4
                                             II.

                                             A.

       We first address Plaintiffs’ excessive force claim. To prevail on an excessive force

claim, a plaintiff must establish that a seizure occurred and that it was unreasonable.

Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999). It is undisputed that Williams was

seized when she was shot. Thus, the only question is whether this seizure was reasonable.

An officer’s use of deadly force is reasonable when “the officer has probable cause to

believe that the suspect poses a significant threat of death or serious physical injury to the

officer or others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985).

       We agree with the District Court that “no reasonable juror could find that the use

of deadly force . . . violated Ms. Williams’ Fourth Amendment rights.” App. at 10. The

undisputed facts reveal that Williams rapidly moved toward Smith with a large knife,

ignored repeated warnings to stop and drop the knife, and was no more than five feet

away from Smith at the time she was shot. Under these circumstances, the SPD officers

had probable cause to believe that Williams posed a significant threat of serious bodily

injury or death. Likewise, it was objectively reasonable for the officers to believe that

using deadly force was necessary. Therefore, the officers’ use of deadly force against

Williams was reasonable as a matter of law. We affirm the District Court’s grant of

summary judgment to the SPD officers on Plaintiffs’ excessive force claim.

shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In making this determination, we
must interpret the facts in the light most favorable to the non-movant. Watson v. Abington
Twp., 478 F.3d 144, 147 (3d Cir. 2007). We have jurisdiction to review the final order of
the District Court pursuant to 28 U.S.C. § 1291.
                                              5
                                               B.

       Plaintiffs also raised various Fourteenth Amendment claims before the District

Court. On appeal, however, Plaintiffs make only a passing reference to the District

Court’s analysis of their state-created danger claim, and they do not present any argument

regarding the District Court’s rejection of their failure-to-treat claim. Plaintiffs’ failure to

argue these issues on appeal constitutes a waiver and is grounds for dismissal of their

Fourteenth Amendment claims. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003)

(concluding that an appellant’s “failure to identify or argue [an] issue in his opening brief

constitutes waiver of this argument on appeal”); see also Kost v. Kozakiewicz, 1 F.3d 176,

182 (3d Cir. 1993) (noting “that under Federal Rule of Appellate Procedure 28(a)(3) and

(5) and Third Circuit Local Appellate Rule 28.1(a), appellants are required to set forth the

issues raised on appeal and to present an argument in support of those issues in their

opening brief”). Accordingly, we affirm the District Court’s dismissal of the Fourteenth

Amendment claims against the SPD officers. Because Plaintiffs have not established any

violation of Williams’s constitutional rights, we also affirm the District Court’s dismissal

of the Monell claims against the City of Scranton.

                                               C.

       Plaintiffs’ state law claims against the City of Scranton and the SPD officers fail

as well. Pursuant to the Pennsylvania Political Subdivision Tort Claims Act, local

agencies and municipal employees are immune to state law tort claims, subject to

exceptions not applicable here. See 42 Pa. Cons. Stat. Ann. §§ 8541-42. For substantially

the same reasons set forth by the District Court, we conclude that the City of Scranton

                                               6
and the SPD officers are immune to Plaintiffs’ state law tort claims. Therefore, we affirm

the District Court’s dismissal of these claims.

                                            III.

       For the foregoing reasons, we affirm the District Court’s grant of summary

judgment in favor of the City of Scranton and the SPD officers.




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