2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-22-2011

Kevin Flood v. Charles Schaefer

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4602

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Recommended Citation

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NOT PRECEDENTIAL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 JOHN 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 Pennsylvania

(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 order granting 

summary judgment to the defendants and a magistrate judge’s order denying a motion to 
2

compel the production of discovery materials.

1

This case concerns Flood’s allegations that the defendants violated his Fourth 

Amendment rights by using 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 

barred by issue preclusion because the Court had resolved the underlying issues adversely 

to Flood 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 explained 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 granting 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 is 
3

analytically possible for Flood to claim that Appellees subjected him to unconstitutional 

conditions even if a statement he made during the same 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 officers 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 magistrate 

judge denied that motion. The magistrate judge viewed Flood’s motion as an attempt to 

resurrect a previously 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 

objections 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 and, 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, because 
4

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 could 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 applies 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 based on the same cause of action.” Duhaney v. Att’y 

Gen., 621 F.3d 340, 347 (3d Cir. 2010). We 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 

voluntariness 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 during 

 
5

The 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 evidence 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 determining 

whether an officer used excessive force, an excessive force claim does not require any 

particular degree of injury.”); see also Wilkins 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 at 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 excessive-force claim by showing that the “police were aware 

that he had a severe back injury and handcuffed him in a manner that caused excessive 
6

pain and suffering.” Flood

Finally, Flood argues 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 

defendants 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 on 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 for the 

District Court to consider in the first instance — after further development of the record, 

if necessary — whether Flood is entitled to production of these tapes. See Hutchinson v. 

Pfeil

Accordingly, we will vacate 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 

filed.