2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/809NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 4602

___________ KEVIN PATRICK FLOOD , Appellant

v. SUPERVISOR TROOPER CHARLES SCHAEFER, Bdg. #8740; CORPORAL RANDY ZIMMERMAN; CORPORAL JOH N BRAVIS; CORPORAL STEPHEN TOMOVICH; TRP. DAVID SNYDER, Bdg. #6200; OTHER UNKNOWN (P.S.P.) PENNSYLVANIA STATE POLICE; KEITH BRUBAKER

____________________________________ On Appeal from the United States District Court for the Western District of Pennsy lvania (D.C. Civil No. 06

- 0082 ) District Judge: Honorable Kim R

. Gibson

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) July 21, 2011 Before: JORDAN, GARTH AND BARRY , Circuit Judges (Opinion filed : July 22, 2011 )

_________ OPINION

_________ PER CURIAM Pro se appellant Kevin Flood appeals from the District Court’s o rder granting summary judgment to the defendants and a magistrate judge’s order denying a motion to2 compel the production of discovery materials

. 1

This case concerns Flood’s allegations that the defendants violated his Fourth Amendment rights by u sing excessive force against him while they held him at a police barracks for questioning

. More specifically, Flood contends that the defendants handcuffed him for a prolonged period of time in a way that aggravated his pre

- existing back injury and caused him severe pain and suffering. For the reasons discussed below, we will vacate the District Court’s judgment and remand for further proceedings.

The case has previously been before this Court. In January 2009, the District Court dismissed Flood’s amended complaint

. It held that the excessive

- force claim was ba rred by issue preclusion because the Court had resolved the underlying issues adversely to Fl ood in adjudicating Flood’s suppression motion in his criminal action

. We vacated this part of the District Court’s order and remanded for further proceedings. See Flood v. Schaefer , 367 F. App’x 315 (3d Cir. 2010). We held that issue preclusion did not apply because , “[i] n his suppression motion, Flood did not raise any excessive force claims arising under the Fourth Amendment ,” and, as a result, the District Court did not rule upon these issues. Id. at 318. We e xplained that this holding was not contrary to the rule of Heck v. Humphrey

1 We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s order gr anting summary judgment, State Auto Prop. & Cas. Ins. Co. v. Pro Design , P.C. , 566 F.3d 86, 89 ( 3d Cir. 2009), and review the order denying the motion to compel for abuse of discretion, Anderson v. Wachovia Mortg. Corp. , 621 F.3d 261, 281 (3d Cir. 2010)

. , 512 U.S. 477 (1994) , because “ it is3 analytically possible for Flood to claim that Appellees subjected him to unconstitutional conditions even if a statement he made during the sam e time period was voluntary .” Id. at 319. We then ruled that “Flood’ s claims are not barred by preclusion principles since, as indicated above, Flood could not be expected to raise excessive force claims in his suppression hearing which were unrelated to the voluntariness of his confession. ” Id. Finally, we held that “ if, as Flood alleges, police were aware that he had a severe back injury and handcuffed him in a manner that caused excessive pain and suffering, he could succeed in proving that the offic ers violated the Fourth Amendment .” On remand, Flood sought to compel the production of certain audio tapes, which he claimed would show that the defendants were aware of his back injury. A magi strate judge denied that motion. The magistrate judge viewed Flood’s motion as an attempt to
resurrect a previous ly dismissed claim that his criminal case had been plagued by evidence tampering ; the judge did not explicitly consider Flood’s contention that these tapes would bear on the defendants’ knowledge of his back injury

. Flood filed

o bjections to the District Court, but the Court did not rule upon those objections. Id.

The magistrate judge then ordered the parties to present all the evidence that they could muster concerning the excessive

- force claim an d, upon receiving this evidence and supporting briefs, recommended that the District Court grant summary judgment to the defendants. The magistrate judge provided two bases for this recommendation. First, the magistrate judge concluded that Flood’s claim was barred by issue preclusion, because4 Flood should have raised it as a defense in the suppression hearing ; since Flood did not raise the claim then, he was precluded from doing so in this action . Second, the magistrate judge stated that Flood’s claim c ould not proceed because he had failed to produce “a shred of objective evidence that he suffered any injury” from the defendants’ alleged misconduct. The District Court approved and adopted this report and recommendation and entered judgment in favor of the defendants. Flood then filed a timely notice of appeal. We will vacate the District Court’s judgment. As noted above, the District Court first held that Flood’s excessive

- force claim was barred by the doctrine of issue preclusion

. Issue preclusion a pplies when the following three circumstances are present:

“ (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit bas ed on the same cause of action.” Duhaney v. Att’y
Gen. , 621 F.3d 3 40, 347 (3d Cir. 2010)

. W e have already held that “ Flood’s claims are not barred by preclusion principles since, as indicated above, Flood could not be expected to raise excessive force claims in his suppression hearing which were unrelated to the volunta riness of his confession.” Flood , 367 F. App’x at 319. Given this holding, the District Court’s ruling that Flood should in fact have raised his excessive force claim in the criminal action cannot stand. See generally Poulis v. State Farm Fire & Cas

. Co

. , 747 F.2d 863, 867 (3d Cir. 1984)

. 2

2 The District Court’s focus on the force that the defendants allegedly used during5 T he District Court’s second ground for granting summary judgment to the defendants is also flawed. The Court concluded that Flood could not withstand summary judgment because he had failed to present “objective evid ence of injury.” However, in evaluating claims of excessive force, the central issue is the force the officers employed (and whether it was reasonable under the circumstances), not the injury they caused. See Smith v. Messinger , 293 F.3d 641, 649 (3d Cir . 2002); see also Chelios v. Heavener , 520 F.3d 678, 690 (7th Cir. 2008) (“ Although injury is a relevant factor in d etermining whether an officer used excessive force, an excessive force claim does not require any particular degree of injury. ”); see also W ilkins v. Gaddy , 130 S. Ct. 1175, 1179 (2010) (emphasizing this point in the Eighth Amendment context). Similarly, to the extent that the injuries Flood sustained are relevant, the evidence that he presented

— primarily, his affidavit

— is “ about the best that can be expected from him a t the summary judgment phase of the proceedings .” Brooks v. Kyler

the last two hours of Flood’s detention, to the exclusion of the earlier hours that Flood was held, also rests on a misapprehension of our previous opinion. We held that it was legally permissible for Flood to argue that the defendants “ subjected him to unconstitutional conditions even if a statement he made during the same time period was voluntary .” Flood , 367 F. App’x at 319 (emphasis added). Thus, Flood may base his claim on force that was allegedly used at any point during his detention. , 204 F.3d 102 , 108 n.7 (3d Cir. 2000) (internal quotation marks, alterations omitted). As we explained in our previous opinion, Flood may assert a viable ex cessive

- force claim by showing that the “ police were aware that he had a severe back injury and handcuffed him in a manner that caus ed excessive6 pain and suffering.” Flood

Finally, Flood argue s that the magistrate judge erred in denying his motion to compel the production of certain audiotapes that he contends would help to show that the de fendants had knowledge of his back injury. We observe that while Flood appealed the magistrate judge’s adverse ruling to the District Court, the Court never ruled on Flood’s objections. , 367 F. App’x at 319. The District Court therefore erred in focusing exclusively o n the degree of injury Flood suffered rather than the force used by the defendants.

See generally Fed. R. Civ. P. 72(a). Consequently, we must remand f or the
D istrict C ourt to consider in the first instance

— after further developm ent of the record, if necessary

— whether Flood is entitled to production of these tapes. See Hutchinson v. Pfeil Accordingly , we will v acate the District Court’s order granting summary judgment to the defendants and remand for further proceedings consistent with this opinion

. , 105 F.3d 562 , 566 (10th Cir. 1997).

3

3 Flood also filed a motion for an extension of time to file a reply brief and, soon thereafter, his reply brief. We grant this motion and thus deem his reply brief timely file d.