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 JAM ES; 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; J ASON FRANK KILLIAN

DR. MAUREEN M. LITCHMAN

Micha el Marshall,

Appellant

__________

On Appeal from the United States District Court for the Middle District of Pennsylvania2 (D.C. No. 10

- cv

- 01534 ) District Judge: Honor able 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 & N orth
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 T op, PA 18707 Attorneys fo r 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 eveni ng of September 28, 2009, fifteen

- year

old 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 Poli ce Department arrived
at the James residence. Officer Marshall was accompanied by two other police officers an d 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 daughte r 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 be cause4 they had taken prescription medication earlier that evening. 1

Officer Marshall persisted, however, and Mrs. James agreed

t o 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 pur suant 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. Ja mes had taken anti

- depres sion medication and
had consumed numerous alcoholic beverages . She alleges that the medication left her feeling extremely drowsy. Mr.

James had taken heart medication, w hich had the same side
effect.

2 The Complaint plead ed nine teen counts against
twenty

- one defendants. Only the claims against Officer
Marshall for false arrest and false imprisonment are at issue
in this appeal. W e 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 e ntitled 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 mem orandum opinion. James v. City of Wilkes

- Barre , 2012 WL 425236, at *1 (M.D. Pa. Feb. 9, 2012). T he 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 caref

ul to say that a district court‘ s order rejecting qualified immunity at the motion

- to

- dism iss stage of a proceeding is a  ̳ final decision ‘ within the meaning of §
1291

. ‖ (citing Behrens v. Pelletier , 516 U.S. 299, 307 (1996))).

Bec ause 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; Bell6 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 doct rine of qualified immunity insulate s government officials who are performing discretionary
functions ―fro m 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). Cour ts 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 i d. at
232.

A

The first question of the Saucier analysis is whether a constitutional violation occurred. This ―is not a question of7 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 19 9, 207 (3d Cir. 2007)). Here, the Complaint allege s 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

A mendment, 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). Th e Complaint at issue in this appeal fails to allege facts that give rise to a seizure under the Fourth
Amendment. Accordingly, Officer Marshall is e ntitled to

qua lified 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 Ber

g 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 test8 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 als o 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, 8 6 (3d Cir. 2009). Some factors indicat ive 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 reques t 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 trave l with Nicole to the hospital.

55. Justifiably and reasonably believing herself to be compel led by law to do so in reliance upon the statements of the Wright Township Police officers, Cheryl agreed to accompany9 Nicole because she believed herself to be in less danger than Warren would b e if he accompanied Nicole.

Compl. ¶¶ 54, 55.

These allegat ions 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 powe rless 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

re quests. 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  ̳ se izure does not occur simply because a police officer approaches an indiv idual 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 Ch eryl 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, [sh e] cou ld 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; T

wombly , 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 factua l 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 allegation s in the complaint as true, we

 ̳ are not bound to accept as true a legal c onclusion 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 seizu re 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 Hodar i 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 target ed 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 of ficer 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 C ir. 1994).

Although we acknowledge that intimidating police behavior might, under some circumstances, cause one to

re asonably 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 w eapon. 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) (find ing a Fourth Amendment seizure when police approached a citizen at his home, asked him to12 accompany them to the police station for questioning, and
threatened to arrest h im when he initially refused).

The only fact that might point toward a seizure is
Off icer 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 acc ompany 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 allege d 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 Mar kham , 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, 69 4

– 9 6 (6th Cir. 1991) (seizure occ urred 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 qual ified immunity.13 C

Mrs. Ja mes 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 Jam es should accompany her daughter.

147. Wright Township Police used the force of their authority and threat of future arrest to compel Cheryl James to l eave her home in an
ambulance.

148. Cheryl James was thereafter confined and
restrained to the ambulanc e.

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
th e 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

g rounded in the Four th 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

a mbulance, 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 c annot show that she was falsely imprisoned. Therefore, the District Court erred when it failed to grant Officer Marshall qualified i mmunity on this claim as
well.

IV For the foregoing reasons, we will reverse the judgment of the District Court

.