Filed: Mar. 27, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 3-27-2003 Crane v. Cumberland Precedential or Non-Precedential: Non-Precedential Docket 02-1687 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Crane v. Cumberland" (2003). 2003 Decisions. Paper 709. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/709 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 3-27-2003 Crane v. Cumberland Precedential or Non-Precedential: Non-Precedential Docket 02-1687 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Crane v. Cumberland" (2003). 2003 Decisions. Paper 709. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/709 This decision is brought to you for free and open access by the Opinions of the United..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
3-27-2003
Crane v. Cumberland
Precedential or Non-Precedential: Non-Precedential
Docket 02-1687
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Crane v. Cumberland" (2003). 2003 Decisions. Paper 709.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/709
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No: 02-1687
______________
DAVID CRANE; SAMANTHA CRANE,
Appellants
v.
CUMBERLAND COUNTY, PA; HAMPDEN TOWNSHIP;
M.L. "SKIP" EBERT, District Attorney;
ASSISTANT DISTRICT ATTORNEY JOHN ABOM;
OFFICER STEPHEN SHISSLER; RYAN S. HUNTER;
THOMAS RYAN STEVENSON; TONY S. DOLIMPIO;
RYAN SCHULLER; DEMITRIOUS KARAGIANNIS a/k/a
James Karagiannis a/k/a Jimmy Karagiannis;
PHYLLIS KARAGIANNIS; KARAGIANNIS, INC.;
SIERRA MADRE a/k/a Sierra Madre Saloon a/k/a
Sierra Madre Restaurant; John 1-99 DOE
_________________
____________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No.99-cv-01798)
District Judge: Honorable William W. Caldwell
_______________
Submitted Under Third Circuit LAR 34.1(a)
on January 13, 2003
Before: ROTH, ALDISERT,
and FUENTES CIRCUIT JUDGES
(Opinion filed March 27, 2003)
____________________
OPINION
___________________
ROTH, Circuit Judge:
Appellant David Crane, an African-American, was involved in an altercation in the
parking lot of the Sierra Madre bar with other bar patrons.1 During the altercation, Crane
wielded a knife and injured two men. Crane was tried three times in a criminal prosecution
and the charges were ultimately withdrawn after each prosecution resulted in a hung jury.
Crane and his wife Samantha then filed suit against the prosecuting authorities, the police
(including appellees Hampden Township and Officer Stephen Shissler), several individuals
who participated in the altercation, and the Sierra Madre appellees.2 On appeal, the Cranes
claim that the District Court erred by granting summary judgment to appellees Hampden
Township and Shissler on the Cranes’ 42 U.S.C. §1983 claims of selective denial of
protective services and selective enforcement of criminal law. As to the Sierra Madre
appellees, the Cranes claim that the District Court erred in granting the Appellees’ Fed. R.
Civ. P. 12(b)(6) motion to dismiss (1) the federal claims under 42 U.S.C. §§1981 and
1
Crane characterizes the altercation as a “racially motivated attack” by Caucasians
against him and another African-American male.
2
The Sierra Madre appellees are comprised of Demitrious Karagiannis, Phyllis
Karagiannis, Karagiannis, Inc., and Sierra Madre (a/k/a Sierra Madre Saloon, Sierra Madre
Restaurant). These appellees are represented by different counsel than the Township and
Shissler and, as the claims against each set of appellees differ, they will be addressed
separately. The remaining defendants have had judgment entered in their favor and are not
part of this appeal.
2
1982, and (2) the state law claims.
We have appellate jurisdiction pursuant to 28 U.S.C. §1291. We conduct plenary
review of the District Court’s order granting a motion to dismiss the Cranes’ claims against
the Sierra Madre appellants. See Emerson v. Thiel College, 296 F.3d 184, 188 (3d. Cir.
2002). Further, our review of the District Court’s grant of summary judgment is plenary.
See Carter v. McGrady,
292 F.3d 152, 157 (3d Cir. 2002). “Summary judgment is proper if
there is no genuine issue of material fact and if, viewing the facts in the light most
favorable to the nonmoving party, the moving party is entitled to judgment as a matter of
law.”
Id. (citations omitted). “If the [non-moving] party’s evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 249-50 (1986) (citations omitted).
Hampden Township and Officer Shissler
The Cranes claim that the District Court erred in granting summary judgment in
favor of Shissler and Hampden Township on Crane’s section 1983 claims. As to the
selective enforcement of criminal law claim, the Cranes allege that Shissler and Hampden
Township wrongfully prosecuted only Crane and not the Caucasian individuals who were
involved in the altercation. Though we view the facts in the light most favorable to the
Cranes, as the non-moving party, we agree with the District Court that the Cranes have
failed to demonstrate that there are disputed issues of material fact to survive summary
judgment. See Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 (3d Cir. 1990).
A plaintiff, in order to establish a claim of selective prosecution, must show that similarly
3
situated persons have not been prosecuted and that “the decision to prosecute was made on
the basis of an unjustifiable standard, such as race, religion, or some other arbitrary factor,
or that the prosecution was intended to prevent his exercise of a fundamental right.” See
United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) (citations omitted). The
Cranes have not demonstrated that others were similarly situated, as Crane was the only
person who wielded a knife during the altercation. Nor have they demonstrated that Crane
was prosecuted, as alleged, on the basis of his race. For example, Crane does not dispute
that there was probable cause for his arrest or that there is no evidence of other incidents in
which Hampden Township prosecuted an African-American but did not prosecute persons
of other races.
The Cranes also claim that Crane was selectively denied protective services under
§1983. Hampden Township and Officer Shissler assert that the Cranes failed to properly
plead this claim before the District Court. In response, the Cranes cite various sections of
their complaint3 to demonstrate that they raised the issue of selective denial of protective
services in their pleadings. They also assert that both § 1983 claims “are like two sides of
the same coin.” Admittedly, the District Court did not fully address the selective denial
claim.4 We have reviewed the record, however, and conclude that the claim is without
3
See Compl. ¶ 47, 80, which was incorporated by reference in Count I (claiming a
violation of 42 U.S.C. § 1983). The complaint did not use the terms “selective denial of
protective services” or “selective enforcement.”
4
In its February 7, 2002 order, the District Court stated that “plaintiff contends that
summary judgment . . . was erroneous because defendants’ summary judgment motion never
addressed plaintiffs’ selective-prosecution or selective-enforcement claim.” It then
4
merit. Municipalities do not owe affirmative duties to protect citizens from violence by
private actors. See DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189,
195 (1989). Moreover, there are no facts which support an inference of impermissible
racial motives on the part of Hampton Township and Officer Shissler to establish a claim
for denial of protective services.
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment on the § 1983 claims against Hampden Township and Officer Shissler.
The Sierra Madre Appellees
The Cranes also allege that the District Court erred in granting the Sierra Madre
appellees’ motion to dismiss because their complaint states cognizable federal claims
under 42 U.S.C. §§ 1981 and 1982. In their complaint, the Cranes claimed that Sierra
Madre appellees prevented Crane from exercising his right under §1981 to contract with
them for service. The Cranes allege that a reasonable inference from their complaint is that
Crane’s fear of returning to the Sierra Madre prevents the making of any new contracts with
the bar and that the Sierra Madre appellees interfered with Crane’s § 1981 “privilege” to
come and go from the Sierra Madre at will. We agree with the District Court that while, §
1981 prohibits racially-motivated interference with the right to contract, the party bringing
suit must have sought to enter into a contract for goods or services. The Cranes do not
addressed why the selective enforcement claim failed. In its earlier November 14, 2001
memorandum supporting the grant of summary judgment, the District Court determined
that the § 1983 claims failed because there was probable cause to file charges against
Crane.
5
claim that Crane was denied service while inside the bar as a patron. The events complained
of followed Crane’s departure from the bar. Crane’s alleged fear is not the direct
interference prohibited by § 1981.
The Cranes also allege that, as a patron of the Sierra Madre, Crane had a “right to go
and come at pleasure” from the bar without subjection to racially motivated attacks in
violation of § 1982. See United States v. Brown, 49 F.3d 1162, 1167-68 (6th Cir. 1995)
(holding that section 1982 must be construed broadly to encompass the “use” of property;
also citing with approval Olzman v. Lake Hills Swim Club, Inc.,
495 F.2d 1333, 1337-38
(2d Cir. 1974), in which African-American children were impermissibly denied certain
rights to use a swimming pool). To establish a cognizable claim under § 1982, a plaintiff
“must allege with specificity facts sufficient to show...(1) the defendant’s racial animus; (2)
intentional discrimination; and (3) that the defendant deprived plaintiff of his [property]
rights because of race.” Brown v. Phillip Morris, Inc.,
250 F.3d 789, 797 (3d Cir. 2001).
On review, we agree with the District Court that the Cranes failed to allege such specific
facts to survive a motion to dismiss. The Cranes’ reliance on Olzman is misplaced because
the Sixth Circuit’s holding was not based on events following the plaintiffs’ departure from
the swim club. The Cranes’ allegations are insufficient to establish a reasonable inference
of race-based interference on the part of the Sierra Madre appellees with Crane’s use of the
Sierra Madre bar. For the foregoing reasons, we will affirm the District Court’s dismissal
of the § 1981 and 1982 claims.
Finally, we will affirm the District Court’s denial of the exercise of supplemental
6
jurisdiction over the Cranes’ state law claims against the Sierra Madre appellees.
Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge
7
