Filed: Mar. 05, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-5-2007 Gravley v. Speranza Precedential or Non-Precedential: Non-Precedential Docket No. 06-1592 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Gravley v. Speranza" (2007). 2007 Decisions. Paper 1529. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1529 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-5-2007 Gravley v. Speranza Precedential or Non-Precedential: Non-Precedential Docket No. 06-1592 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Gravley v. Speranza" (2007). 2007 Decisions. Paper 1529. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1529 This decision is brought to you for free and open access by the Opinions of the U..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-5-2007
Gravley v. Speranza
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1592
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Gravley v. Speranza" (2007). 2007 Decisions. Paper 1529.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1529
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 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-130 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 06-1592
________________
DWAUNE J. GRAVELY, SR.,
Appellant,
v.
MICHAEL SPERANZA, PATROLMAN; JAMES BATTAVIO, PATROLMAN;
GARY KEHN, PATROLMAN; ANTHONY CROKUS, SERGEANT;
RICK PIERCE, DETECTIVE; RICHARD JOHNSON, PATROLMAN;
WILLIAM SCULL, DETECTIVE; ARTHUR MARCHAND, CUMBERLAND
COUNTY PROSECUTOR; THOMAS DESIMMONE, ASSISTANT PROSECUTOR;
THOMAS BEBEE, DETECTIVE; MICHAEL GIAMARI, SERGEANT;
CITY OF BRIDGETON
________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 02-cv-05594)
District Judge: Honorable Joseph E. Irenas
________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
February 16, 2007
Before: BARRY, AMBRO and FISHER, Circuit Judges
(Filed March 5, 2007)
________________
OPINION
________________
PER CURIAM
Appellant, Dwaune Gravely, acting pro se, timely appeals from the District
Court’s January 17, 2006, order granting defendants’ Motion for Summary Judgment.1
Gravely alleges that defendants violated his constitutional rights during and
after his arrest on July 30, 2001. The key events leading to his arrest are undisputed. At
approximately 7:00 p.m., Gravely entered someone else’s residence carrying a machine
gun. This incident was reported to the police, who arrived at the scene and found Gravely
in a vehicle nearby. Gravely attempted to evade arrest; his vehicle first failed to stop in
response to the police patrol car’s lights and sirens, and once it did stop, Gravely fled on
foot. While running away, he discharged the machine gun he was carrying, and he was
shot once in the shoulder by defendant Speranza.2 Coming to an intersection, Gravely
encountered a car containing two adults and an infant. He forced his way into the car,
held a gun to the head of the driver, and attempted to take cover under the dashboard of
the vehicle. As the police approached, the adults escaped the car, but the infant remained
in the back seat. Defendants Kehn, Battavio, Pierce, and Crokus proceeded to fire shots
at Gravely, striking him multiple times. They then removed him from the vehicle, at
which time Gravely contends defendant Speranza kicked him once. An emergency
medical team arrived quickly and airlifted Gravely to Cooper Trauma Center in Camden,
where his wounds were treated. Despite this prompt treatment, Gravely alleges that he
1
While Gravely is pursuing his appeal pro se, he was represented by counsel in the
District Court.
2
As the District Court correctly concluded, Gravely’s criminal conviction for
discharging a firearm in violation of 18 U.S.C. § 924 that arose from these events
forecloses his current attempt to argue that he did not fire his gun.
2
has lost the use of his left hand and arm and suffered severe emotional distress as a result
of being shot. His complaint raised claims of excessive force, conspiracy, falsification of
official records, perjury, failure to preserve evidence, failure to follow police procedures,
and failure to train.3
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and undertake
plenary review of the District Court’s grant of summary judgment. See DeHart v. Horn,
390 F.3d 262, 267 (3d Cir. 2004). Summary judgment is appropriate when there is no
genuine issue of material fact to be resolved at trial and the moving party is entitled to
judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).
We agree with the District Court’s conclusion that Gravely’s claim of
failure to preserve evidence is barred by Heck v. Humphrey, 512 U.S. 477 (1994), as a
judgment in his favor would necessarily imply the invalidity of his conviction for crimes
committed during the events described above. The District Court also found that the
claim of falsification of official records was barred by Heck. However, we find that the
claim is more fundamentally flawed. Gravely did not give any indication as to what
documents he believed were falsified or how their alleged falsification violated his
constitutional rights. Granting a motion to dismiss this claim would have been
appropriate, and disposing of it by summary judgment was clearly correct.
The District Court properly reached the merits of Gravely’s other claims,
3
Gravely has not appealed the March 13, 2003, order dismissing his claims of
prosecutorial misconduct.
3
and we agree with its conclusion that they cannot survive defendants’ motions for
summary judgment. As the District Court explained in some detail, there is no merit to
the claims of perjury and failure to follow official departmental procedure.
Gravely’s remaining claims all hinge on his contention that excessive force
was used to effectuate his arrest in violation of the Fourth Amendment. As there is no
question that the arrest constituted a seizure, Gravely will prevail if he shows that the
force used was unreasonable under the circumstances. See Estate of Smith v. Marasco,
430 F.3d 140, 148 (3d Cir. 2005). Among the factors considered in evaluating
reasonableness are: “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, . . . whether he actively is resisting
arrest or attempting to evade arrest by flight, . . . the possibility that the suspect may be
armed, and the number of persons with whom the police officers must contend at one
time.” Couden v. Duffy,
446 F.3d 483, 496-97 (3d Cir. 2006). While determining the
question of reasonableness is frequently one that should be left to the ultimate factfinder,
summary judgement 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).
We conclude, as did the District Court, that firing at Gravely was an
objectively reasonable use of force to effectuate his arrest. At the time he was shot,
Gravely was suspected of having committed the serious crimes of armed home invasion
4
and car-jacking,4 he had actively resisted arrest both by flight and by firing his machine
gun, he had placed both police officers and bystanders in grave danger. By his own
admission, Gravely had car-jacked a vehicle and placed a machine gun to the head of the
driver moments before he was shot and arrested by the defendant officers. Under the
circumstances, it was objectively reasonable for them to use potentially deadly force to
subdue and arrest him.
Gravely further asserts that after he had been removed from the car, he was
kicked in the chest once by defendant Speranza. In its analysis, the District Court found
that this kick was also an objectively reasonable use of force because Gravely refused to
stop moving after having been ordered to do so. After examining the record, we conclude
that there was a factual dispute as to these events that the District Court failed to resolve
in Gravely’s favor. See Rivas v. City of Passaic 365 F.3d 181, 199 (3d Cir. 2004).
Gravely testified at deposition that he was on the ground after being shot multiple times
when Speranza approached him, said “‘He’s done. He’s Done.,’” referred to him with an
expletive, and kicked him. While Speranza’s actual motive is not relevant, see Estate of
Smith, 318 F.3d at 515, a reasonable finder of fact could conclude based on this evidence
that Gravely was already completely incapacitated making the kick an unnecessary use of
force.
4
We note, however, that taking into consideration the cocaine later found in
Gravely’s car was not appropriate, as there appears to be no evidence that the defendant
officers were aware of the drugs or otherwise had reason to suspect Gravely had
committed drug-related crimes at the time they were pursing and arresting him.
5
Nonetheless, Gravely’s claim could not have survived summary judgment
even resolving all factual disputes in his favor. It is well established that “‘[n]ot every
push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,’
is constitutionally unreasonable.” Sharrar v. Felsing 128 F.3d 810, 821 (3d Cir. 1997)
(quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). Gravely makes no allegation
concerning Speranza’s kick which suggests that it was constitutionally unreasonable.
Because there was no underlying Constitutional violation, the claims of
conspiracy and failure to train also fail.
For the foregoing reasons, we find that this appeal does not lack arguable
merit, and we will not dismiss it under 28 U.S.C. § 1915(e)(2)(B). Because summary
judgment was appropriate, however, we will affirm the District Court’s order entered
January 17, 2006.
6
