Filed: May 23, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-23-2006 Zhai v. Cedar Grove Mun Precedential or Non-Precedential: Non-Precedential Docket No. 05-4836 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Zhai v. Cedar Grove Mun" (2006). 2006 Decisions. Paper 1056. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1056 This decision is brought to you for free and open access by the Opinion
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-23-2006 Zhai v. Cedar Grove Mun Precedential or Non-Precedential: Non-Precedential Docket No. 05-4836 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Zhai v. Cedar Grove Mun" (2006). 2006 Decisions. Paper 1056. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1056 This decision is brought to you for free and open access by the Opinions..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-23-2006
Zhai v. Cedar Grove Mun
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4836
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Zhai v. Cedar Grove Mun" (2006). 2006 Decisions. Paper 1056.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1056
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 2006 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4836
________________
ANN ZHAI,
Appellant
vs.
CEDAR GROVE MUNICIPALITY; CEDAR GROVE
POLICE DEPARTMENT; CEDAR GROVE MUNICIPAL
COURT; OFFICER JOHN DOES (2-10) all in their
individual and official capacities; RICHARD
VANDERSTREET, Officer; JOHN KENNEDY, Officer
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 04-cv-00524)
District Judge: Honorable Faith S. Hochberg
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 19, 2006
Before: FISHER, ALDISERT and WEIS, Circuit Judges.
(Filed: May 23, 2006)
_______________________
OPINION
_______________________
PER CURIAM.
Ann Zhai, a pro se plaintiff/appellant, sued the municipality of Cedar
Grove, NJ, its police department, and police officers Kennedy and Vanderstreet for
violations of the Fourth and Fourteenth Amendments under §§ 1983, 1985, and 1986 of
the Civil Rights Act, the Americans with Disabilities Act, and the Rehabilitation Act.
Zhai appeals the District Court’s grant of summary judgment to the Defendants under all
of her causes of action. For the reasons below, we will affirm in part, vacate in part, and
remand for further proceedings.1
I.
On appeal from summary judgment, we review the evidence in the light
most favorable to Zhai, making all reasonable inferences in her favor. See Podobnik v.
U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir. 2005). Zhai was driving an unregistered,
uninsured car when pulled over by Officer Kennedy. Kennedy told her that the car would
be impounded because it was unregistered and uninsured and asked her to exit the car.
Zhai told Kennedy that she suffered from Post-Traumatic Stress Disorder and a brain
tumor. When Kennedy ordered her out of the car, she repeatedly explained her medical
conditions and personal situation, asking that she be let off the hook.
Zhai alleges that Kennedy became annoyed, showed her handcuffs and
pepper spray, and then sprayed her with the pepper spray. At that point, she experienced
a panic attack and froze with her hands gripping the steering wheel. She had trouble
breathing and thinking. Officers Ribaudo (who just had arrived on the scene) and
Kennedy pried her out of the car and dragged her to the police cruiser. The officers
claim, and Zhai does not materially dispute, that she resisted leaving her car by writhing
1
We have jurisdiction under 28 U.S.C. § 1291. Our review is de novo. Podobnik v.
U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir. 2005).
2
and kicking. The entire incident lasted from 9:00 until approximately 10:00 a.m.
While at the police station, Zhai lost consciousness and was sent to a
hospital, where she was diagnosed with Panic Attack Disorder. Zhai could talk to the
medics without a problem, but became semi-conscious and unresponsive when questioned
by the police. She was in the hospital from 1:00 to about 4:00 p.m. After returning to the
police station, she was interviewed by Kennedy, Vanderstreet, and supervisor Gary
Dillon. Before she was released, she was charged with resisting arrest, obstruction of
justice, and two counts of aggravated assault on police officers. She was released at 6:00
p.m.
At a hearing in Cedar Grove Municipal Court, Zhai entered a plea
agreement in which she pled guilty to resisting arrest. She agreed to release the officers
and municipality from civil liability in exchange for the other charges being dropped.
Although the plea bargain called for her to sign the release within one week, Zhai never
signed it and the prosecutor never followed up on it.
II.
Zhai’s conspiracy claims under 42 U.S.C. §§ 1985-1986 are based on her
allegation that the officers, prosecutor, and judge conspired to bring false charges to
secure a release for any civil liability resulting from the incident. However, these claims
are barred, along with her challenges to the guilty plea itself, by Heck v. Humphrey, 512
U.S. 477 (1994) (holding that hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
3
unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that
the conviction or sentence has been reversed, expunged, declared invalid, or called into
question by a writ of habeas corpus).
Relief under Title II of the of the Americans with Disabilities Act, 42
U.S.C. § 12131, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
requires Zhai to show that she has an impairment that substantially limits at least one
major life activity. See Doe v. County of Centre, PA, 242 F.3d 437, 447 (3d Cir. 2001).
As Zhai did not allege that she was limited in any major life activity, the District Court
properly granted summary judgment on those claims.2
The District Court also correctly found that Zhai has not made out a prima
facie case for disability discrimination under the Fourteenth Amendment. To succeed on
her equal protection claim, Zhai must show that the officers’ actions were motivated by
an intent to discriminate. Washington v. Davis, 426 U.S. 229, 239-40 (1976). She has
not shown any evidence that the police officers at any time acted out of animus toward
2
On appeal, Zhai claims to be reproductively impaired. Even if we were inclined to
consider this claim, which was not made in the District Court, Zhai provides no evidence
or details to support her claim. She also claims that her diagnoses of Post Traumatic
Stress Disorder (“PTSD”) and Temporomandibular Joint Disorder prove that she is
disabled, but fails to specify how those disorders have interfered with a major life
activity. Although Zhai points to gaining some weight and failing the Patent Bar Exam,
these do not qualify as impairments to major life activities. See 29 C.F.R. § 1630.2(i)
(giving examples of major life activities as “caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working”). See also
Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998) (noting that PTSD,
standing alone, is not necessarily an impairment under the ADA).
4
her race, sex, or alleged disability. Neither has she shown that the arresting policies of
the municipality of Cedar Grove had any kind of discriminatory purpose or motivation.
See Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).
Accordingly, we will affirm the judgment of the District Court with regard to the
foregoing claims.
III.
Finally, we turn to Zhai’s claim that Kennedy used excessive force during
her arrest, a claim which we analyze using the Fourth Amendment’s objective
reasonableness standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1988). This
claim is based on Kennedy’s alleged use of pepper spray.
The District Court rejected this claim because Zhai only supposed that
Kennedy used pepper spray based on the onset of her panic attack, but did not actually
remember being hit with pepper spray or feeling its effects. The Court relied upon Zhai’s
statement of facts, which stated that she saw “small canister (a container for Pepper
Spray) being applied by one hand aiming at her . . . . She reasonably believed that officer
Kennedy had made shot at her. . . . Immediately, plaintiff was experiencing lack of
oxygen, cold sweets, neurological deficit, shortness of breath, and stomach churning
aches, etc. ” (Pl. Affirmation in Support of Motion for Summary Judgment, paras. 16-
17). Because Zhai presents no evidence that she was sprayed other than her own
statements, the distinction is crucial to whether her claim survives summary judgment
because we assume her eye-witness testimony is true. See Reeves v. Sanderson Plumbing
5
Prods. Inc., 530 U.S. 133, 150 (2000) (credibility determinations are inappropriate on
summary judgment).
On appeal, Zhai appears to assert that she does, in fact, remember being
sprayed and that the District Court misunderstood her submissions. Summary judgment
is only proper if a review of Zhai’s submissions demonstrate that there is “no genuine
issue of material fact” on this issue. See Fed. R. Civ. P. 56(c). Reviewing Zhai’s
submissions de novo, Fasold v. Justice, 409 F.3d 178, 183 (3d Cir. 2005), we believe that
the District Court did not err in its understanding of her summary judgment papers. The
District Court cannot be faulted for failing to rule on what Zhai did not argue or allege.
Accordingly, we will affirm the judgment of the District Court.
6
