PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3345

___________

CHERYL JAMES; WARREN JAMES; NICOLE JAMES

v.

THE CITY OF WILKES-BARRE; WRIGHT TOWNSHIP;

WILKES-BARRE HOSPITAL COMPANY, LLC,

doing business as WILKES-BARRE GENERAL HOSPITAL;

THE WYOMING VALLEY HEALTH CARE SYSTEM;

THE WILKES-BARRE CITY POLICE DEPARTMENT;

THE WRIGHT TOWNSHIP POLICE DEPARTMENT;

DR. RUSSELL ELMER JAMES;

DR. NOEL PACLEB ESTIOKO; AMY LYNN CRAIG;

BETH ANN NOBLE; LORA DENISE PAULUKONIS;

BRIAN THOMAS MORAN; TANYA LYNN OSTOPICK;

RYAN RUSSELL SELTZER; CAROLE FLEMING PIROW;

DENNIS MONK; BRIAN STOUT;

MICHAEL MARSHALL; CHARLIE CASEY;

KATHY PICKARSKI VIDUMSKI; JASON FRANK KILLIAN

DR. MAUREEN M. LITCHMAN

Michael Marshall,

 Appellant

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania
2

(D.C. No. 10-cv-01534)

District Judge: Honorable James M. Munley

___________

Argued October 23, 2012

Before: HARDIMAN, GREENAWAY, JR., and 

VANASKIE, Circuit Judges.

(Filed: November 29, 2012)

Rufus A. Jennings

John P. Morgenstern [Argued]

Deasey, Mahoney, Valentini & North

1601 Market Street

Suite 3400

Philadelphia, PA 19103-0000

Attorneys for Michael Marshall, Defendant-Appellant

James A. Brando [Argued]

William L. Higgs

Law Offices of William L. Higgs

386 South Mountain Boulevard

Mountain Top, PA 18707

Attorneys for Plaintiff-Appellees

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.
3

This appeal requires us to decide whether the District 

Court erred when it denied a police officer‘s motion to 

dismiss a civil rights action.

I

On the evening of September 28, 2009, fifteen-yearold Nicole James sent a text message to a friend stating that 

she planned to commit suicide by ingesting ibuprofen pills. 

The friend called 911 and soon thereafter Officer Michael 

Marshall of the Wright Township Police Department arrived 

at the James residence. Officer Marshall was accompanied 

by two other police officers and emergency medical 

personnel.

When questioned by her parents, Warren and Cheryl 

James, Nicole admitted that she had planned to commit 

suicide, but said that she had changed her mind and had not 

ingested any pills. Nevertheless, Officer Marshall stated that 

Nicole had to go to the hospital for an evaluation. Nicole‘s 

parents disagreed, insisting that they wanted to handle the 

matter themselves. Officer Marshall then ―informed Warren

and Cheryl that [he] would charge [them] with assisted 

manslaughter if something happened to Nicole because they 

did not send Nicole to the hospital with the emergency 

medical services personnel.‖ Compl. ¶ 50. Mr. and Mrs. 

James relented and gave permission for their daughter to be 

taken to the hospital.

Officer Marshall then informed Mr. and Mrs. James

that one of them would need to accompany Nicole. They 

initially refused, stating that they felt unable to travel because 
4

they had taken prescription medication earlier that evening.1 

Officer Marshall persisted, however, and Mrs. James agreed 

to go to the hospital with her daughter.

Cheryl James later brought suit against Officer 

Marshall for false arrest and false imprisonment pursuant to 

42 U.S.C. § 1983 in the Court of Common Pleas of Luzerne 

County, Pennsylvania.2 Officer Marshall then removed the 

case to the United States District Court for the Middle District 

of Pennsylvania, and filed a motion to dismiss pursuant to 

Fed. R. Civ. P. 12(b)(6). In the alternative, Officer Marshall 

argued that he was entitled to qualified immunity. The matter 

was referred to Magistrate Judge Mildred E. Methvin, who 

recommended that the claims be dismissed for failure to state 

a claim. In light of this recommendation, the issue of 

qualified immunity was not addressed.

After the Jameses filed objections, the District Court 

rejected Magistrate Judge Methvin‘s Report and 

Recommendation to the extent that it dismissed Mrs. James‘s

§ 1983 claims for false arrest and false imprisonment, and 

 

1 Mrs. James had taken anti-depression medication and 

had consumed numerous alcoholic beverages. She alleges 

that the medication left her feeling extremely drowsy. Mr. 

James had taken heart medication, which had the same side 

effect.

2

The Complaint pleaded nineteen counts against 

twenty-one defendants. Only the claims against Officer 

Marshall for false arrest and false imprisonment are at issue

in this appeal. We have limited our recitation of the facts and 

procedural history accordingly.
5

denied Officer Marshall‘s motion to dismiss. James v. City of 

Wilkes-Barre, 2011 WL 3584775, at *6 (M.D. Pa. Aug. 15, 

2011). Officer Marshall appealed to this Court, arguing that 

he was entitled to qualified immunity.

Because the District Court did not address the issue of 

qualified immunity in its opinion, we summarily remanded 

the matter for an explanation as to why it denied qualified 

immunity to Officer Marshall. Two days later, the District

Court filed a supplemental memorandum opinion. James v. 

City of Wilkes-Barre, 2012 WL 425236, at *1 (M.D. Pa. Feb. 

9, 2012). The case is now ripe for disposition.

II

The District Court exercised jurisdiction under 28 

U.S.C. §§ 1331 and 1343(a)(3). We have appellate 

jurisdiction under 28 U.S.C. § 1291 and the collateral order 

doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); 

see also Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (―[T]he 

applicability of the [collateral order] doctrine in the context of 

qualified-immunity claims is well established; and this Court 

has been careful to say that a district court‘s order rejecting 

qualified immunity at the motion-to-dismiss stage of a 

proceeding is a  ̳final decision‘ within the meaning of § 

1291.‖ (citing Behrens v. Pelletier, 516 U.S. 299, 307 

(1996))).

Because this case comes to us upon a Rule 12(b)(6)

motion to dismiss, we accept the factual allegations contained 

in the Complaint as true, but we disregard rote recitals of the 

elements of a cause of action, legal conclusions, and mere 

conclusory statements. See Iqbal, 556 U.S. at 678–79; Bell 
6

Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007); 

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220–21 (3d 

Cir. 2011). We exercise de novo review of a district court‘s 

denial of a motion to dismiss on qualified immunity grounds 

as it involves a pure question of law. McLaughlin v. Watson, 

271 F.3d 566, 570 (3d Cir. 2001) (citing Acierno v Cloutier, 

40 F.3d 597, 609 (3d Cir. 1994)).

III

The doctrine of qualified immunity insulates 

government officials who are performing discretionary 

functions ―from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 

known.‖ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

The Supreme Court has established a two-part analysis that 

governs whether an official is entitled to qualified immunity. 

Saucier v. Katz, 533 U.S. 194, 201 (2001). We ask: (1) 

whether the facts alleged by the plaintiff show the violation of 

a constitutional right; and (2) whether the right at issue was 

clearly established at the time of the alleged misconduct. Id.; 

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 

2010). Courts may address the two Saucier prongs in any 

order, at their discretion. Pearson v. Callahan, 555 U.S. 223, 

236 (2009). If the plaintiff fails to satisfy either prong, the 

defendant is entitled to judgment as a matter of law. See id. at 

232.

A

The first question of the Saucier analysis is whether a 

constitutional violation occurred. This ―is not a question of 
7

immunity, but whether there is any wrong to address.‖ Ray v. 

Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010) (citing 

Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007)). Here, the 

Complaint alleges that Officer Marshall falsely arrested and 

imprisoned Mrs. James when he insisted that she accompany 

her daughter to the hospital in an ambulance.

B

To state a claim for false arrest under the Fourth 

Amendment, a plaintiff must establish: (1) that there was an 

arrest; and (2) that the arrest was made without probable 

cause. See Groman v. Twp. of Manalapan, 47 F.3d 628, 634 

(3d Cir. 1995); Dowling v. City of Phila., 855 F.2d 136, 141 

(3d Cir. 1988). The Complaint at issue in this appeal fails to 

allege facts that give rise to a seizure under the Fourth 

Amendment. Accordingly, Officer Marshall is entitled to 

qualified immunity on this claim.

―Only when the officer, by means of physical force or 

show of authority, has in some way restrained the liberty of a 

citizen may we conclude that a seizure has occurred.‖ 

Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry 

v. Ohio, 392 U.S. 1, 19 n.16 (1968)) (internal quotation marks 

omitted); see also Berg v. Cnty. of Allegheny, 219 F.3d 261, 

269 (3d Cir. 2000) (―A person is seized for Fourth 

Amendment purposes only if he is detained by means 

intentionally applied to terminate his freedom of 

movement.‖). When a person claims that her liberty is 

restrained by an officer‘s ―show of authority,‖ a seizure does 

not occur unless she yields to that show of authority. 

California v. Hodari D., 499 U.S. 621, 626 (1991); United 

States v. Smith, 575 F.3d 308, 313 (3d Cir. 2009). ―[T]he test 
8

for existence of a  ̳show of authority‘ is an objective one: not 

whether the citizen perceived that [s]he was being ordered to 

restrict [her] movement, but whether the officer‘s words and 

actions would have conveyed that to a reasonable person.‖ 

Hodari D., 499 U.S. at 628; see also United States v. Brown, 

448 F.3d 239, 245 (3d Cir. 2006). We examine the totality of 

the circumstances in determining whether a seizure occurred. 

Bostick, 501 U.S. at 437; United States v. Crandell, 554 F.3d 

79, 86 (3d Cir. 2009). Some factors indicative of a seizure 

include ―the threatening presence of several officers, the 

display of a weapon by an officer, some physical touching of 

the person of the citizen, or the use of language or tone of 

voice indicating that compliance with the officer‘s request 

might be compelled.‖ United States v. Mendenhall, 446 U.S. 

544, 554 (1980); see also United States v. Drayton, 536 U.S. 

194, 204 (2002) (concluding that the defendant was not 

seized because ―[t]here was no application of force, no 

intimidating movement, no overwhelming show of force, no 

brandishing of weapons, no blocking of exits, no threat, no 

command, not even an authoritative tone of voice‖).

Mrs. James does not claim that Officer Marshall used 

any physical force. Instead, she alleges that he made a show 

of authority. She asserts in the Complaint:

54. None-the-less [sic], the Wright Township 

Police officers insisted that at least one parent 

needed to travel with Nicole to the hospital.

55. Justifiably and reasonably believing herself 

to be compelled by law to do so in reliance 

upon the statements of the Wright Township 

Police officers, Cheryl agreed to accompany 
9

Nicole because she believed herself to be in less 

danger than Warren would be if he 

accompanied Nicole.

Compl. ¶¶ 54, 55.

These allegations are insufficient to establish a show 

of authority that rises to the level of a seizure under the 

Fourth Amendment. First, the officers‘ insistence that Mrs. 

James accompany her daughter to the hospital would not 

cause a reasonable person to feel powerless to decline the 

officers‘ request or otherwise terminate the encounter. See 

Bostick, 501 U.S. at 436. Indeed, the Supreme Court has 

repeatedly rejected the notion that a seizure occurs when an 

officer approaches a citizen to ask questions or make 

requests. See, e.g., Drayton, 536 U.S. at 203–04 (no seizure 

when three officers boarded a bus and began questioning 

passengers); Bostick, 501 U.S. at 434–35 (no seizure when 

two officers approached a citizen on a bus and requested his 

consent to search his luggage); Mendenhall, 446 U.S. at 555 

(no seizure when two DEA agents approached a citizen at an

airport and requested identification and her airline ticket); see 

also Crandall, 554 F.3d at 84 (―The Supreme Court has made

clear that a Fourth Amendment  ̳seizure does not occur 

simply because a police officer approaches an individual and 

asks a few questions.‘‖ (quoting Bostick, 501 U.S. at 434)).

Mrs. James‘s assertion that she ―justifiably and 

reasonably believ[ed] herself compelled by law‖ to comply 

with Officer Marshall‘s request does not alter our conclusion. 

In finding that Officer Marshall violated Mrs. James‘s 

constitutional rights, the District Court reasoned:
10

[T]he complaint alleged that the police officers 

asserted their authority and compelled Cheryl 

James to accompany her daughter to the 

hospital. She alleges that she had no choice in 

the matter, and her freedom of movement was 

thereby intentionally terminated by the actions 

of the police . . . . If she can prove these facts to 

a jury, [she] could prevail on her claim.

James, 2012 WL 425236, at *3. By crediting these 

allegations, the District Court assumed that Mrs. James was 

―compelled‖ to accompany her daughter to the hospital. This 

was error because whether she was in fact ―compelled‖ to do

so is a legal conclusion. At the motion to dismiss stage, we 

accept as true all factual assertions, but we disregard 

threadbare recitals of the elements of a cause of action, legal 

conclusions, and conclusory statements. See Iqbal, 556 U.S. 

at 678–79; Twombly, 550 U.S. at 555–57; Burtch, 662 F.3d at 

220–21. Although Mrs. James asks us to accept as fact her 

assertion that she ―justifiably and reasonably believ[ed] 

herself compelled by law,‖ in reality it is a legal conclusion 

artfully pleaded as a factual assertion, which is not entitled to 

a presumption of truth. See Iqbal, 556 U.S. at 678 

(―Although for the purposes of a motion to dismiss we must 

take all of the factual allegations in the complaint as true, we 

 ̳are not bound to accept as true a legal conclusion couched as 

a factual allegation.‘‖ (quoting Twombly, 550 U.S. at 555)). 

As far as relevant factual averments go, the Complaint pleads 

only that the officers ―insisted‖ that one parent accompany 

Nicole. As we have explained, insistence alone is insufficient 

to constitute a seizure under the Fourth Amendment.
11

Even if we were to consider Mrs. James‘s assertion 

that she felt compelled by law, she does not establish that a 

reasonable person would have felt she had no choice but to 

comply. See Hodari D., 499 U.S. at 628; Brown, 448 F.3d at 

245. As the Court of Appeals for the Seventh Circuit has 

persuasively explained, a seizure results from 

coercive pressure from state actors resulting in a 

significant, present disruption of the targeted 

person‘s freedom of movement. In our view, a 

seizure typically involves an almost complete 

restriction of movement—either a laying of 

hands or a close connection (both temporally 

and spatially) between the show of authority 

and the compliance (as when a police officer 

tells a suspect to get in the back of the squad car 

but declines to handcuff him).

Kernats v. O’Sullivan, 35 F.3d 1171, 1180 (7th Cir. 1994).

Although we acknowledge that intimidating police 

behavior might, under some circumstances, cause one to 

reasonably believe that compliance is compelled, the officers‘ 

actions in this case did not rise to that level. There are no 

allegations that the officers intimidated Mrs. James with a 

threatening presence, engaged in any physical touching, or 

displayed a weapon. See Mendenhall, 446 U.S. at 554. Nor 

did the officers order her to the police station for questioning 

or threaten to arrest her if she refused to accompany her 

daughter to the hospital. See Hayes v. Florida, 470 U.S. 811, 

812–13, 816 (1985) (finding a Fourth Amendment seizure 

when police approached a citizen at his home, asked him to 
12

accompany them to the police station for questioning, and 

threatened to arrest him when he initially refused).

The only fact that might point toward a seizure is 

Officer Marshall‘s threat that Mr. and Mrs. James would be 

charged with assisted manslaughter if they prevented Nicole 

from going to the hospital and she actually committed 

suicide. But that threat was not made in connection with Mrs. 

James‘s decision to accompany Nicole to the hospital; rather, 

it was made in the context of the parents agreeing to send 

Nicole to the hospital in the first place, which does not 

implicate a restriction on Mrs. James‘s freedom of movement.

Finally, we note that the facts alleged in the Complaint 

differ significantly from the circumstances present in the few 

cases we have located in which a seizure was found based on 

the alleged restraint of a plaintiff‘s freedom of movement by 

an official threat. See, e.g., White v. City of Markham, 310 

F.3d 989, 992, 995 (7th Cir. 2002) (seizure occurred when 

police officer placed hand on man‘s shoulder and told him 

that if he did not leave immediately, he would be arrested); 

Cassady v. Tackett, 938 F.2d 693, 694–96 (6th Cir. 1991) 

(seizure occurred when executive director of a multi-county 

jail barricaded herself in her office after the county jailer and 

his deputies, brandishing weapons, threatened to kill her and 

her husband). Tellingly, Mrs. James does not cite any case 

factually similar to hers in which a seizure was found.

For the reasons stated, we hold that Mrs. James was 

not seized in violation of the Fourth Amendment. Having 

found no constitutional violation, we hold that Officer 

Marshall is entitled to qualified immunity.
13

C

Mrs. James also alleges that she was falsely 

imprisoned by Officer Marshall after she was forced to 

accompany her daughter to the hospital. In this regard, the 

Complaint alleges:

146. Wright Township Police Department 

officers intended that Plaintiff Cheryl James 

should accompany her daughter.

147. Wright Township Police used the force of 

their authority and threat of future arrest to 

compel Cheryl James to leave her home in an 

ambulance.

148. Cheryl James was thereafter confined and 

restrained to the ambulance.

Compl. ¶¶ 146–48.

To state a claim for false imprisonment, a plaintiff 

must establish: (1) that she was detained; and (2) that the 

detention was unlawful. See Wallace v. Kato, 549 U.S. 384, 

389 (2007) (―The sort of unlawful detention remediable by 

the tort of false imprisonment is detention without legal 

process.‖ (citations omitted) (emphasis deleted)). A false 

imprisonment claim under § 1983 which is based on an arrest 

made without probable cause, as Mrs. James alleges here, is 

grounded in the Fourth Amendment‘s guarantee against 

unreasonable seizures. Groman, 47 F.3d at 636.
14

As we have explained, Mrs. James has not pleaded that 

she was seized within the meaning of the Fourth Amendment. 

She was urged by officers to accompany her daughter in the 

ambulance, and she agreed to do so. She was free to leave at 

any time. Indeed, she does not allege that any Wright 

Township police officers accompanied her in the ambulance 

or even that they proceeded to the hospital separately. 

Accordingly, Mrs. James cannot show that she was falsely 

imprisoned. Therefore, the District Court erred when it failed 

to grant Officer Marshall qualified immunity on this claim as 

well.

IV

For the foregoing reasons, we will reverse the 

judgment of the District Court.