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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2714

___________

CHARLES PRATT,

Appellant

v.

THE PORT AUTHORITY OF NEW YORK & NEW JERSEY;

THE PORT AUTHORITY POLICE DEPARTMENT; 

ABC CORP. 1-3; JOHN DOE 1-3; P.O. NICHOLAS PIMIENTA

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-11-cv-04880)

District Judge: Honorable Faith S. Hochberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2014

Before: SMITH, GARTH and ROTH, Circuit Judges

(Opinion filed: April 8, 2014)

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OPINION

___________

PER CURIAM

Pro se appellant Charles Pratt appeals the District Court’s order granting summary 

judgment to the defendants. We have jurisdiction under 28 U.S.C. § 1291 and exercise a 
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plenary standard of review over the District Court’s order. See State Auto Prop. & Cas. 

Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). As discussed below, we will 

affirm in part, vacate in part, and remand.

This case arises out of an October 15, 2010 encounter between Pratt and Officer 

Nicholas Pimienta of the Port Authority Police Department at a PATH station in Jersey 

City. Pratt had traveled to the station with his wife, Carla, with the intention of helping 

her resolve a problem she was having at work. However, Carla did not want Pratt’s 

assistance, and asked Officer Pimienta to tell Pratt that he could not accompany her to her 

workplace. Officer Pimienta requested identification from Pratt and Carla; apparently 

Carla’s identification was at her job site, and she was permitted to leave the scene to 

retrieve it. 

At this point, Officer Pimienta’s and Pratt’s accounts of what occurred diverge

sharply. Officer Pimienta testified in his deposition that he asked Pratt to stay by his side 

while he made a phone call, but Pratt started to wander away. Officer Pimienta then 

stopped Pratt, asked to search him, and Pratt consented. Either just before or just after 

Officer Pimienta commenced the search, Pratt began to cry uncontrollably. While Pratt 

did not possess any weapons or contraband, Officer Pimienta decided to handcuff him 

because of his emotional reaction; during the process, however, Pratt tripped over Officer 

Pimienta’s foot, fell down, and brought Officer Pimienta down with him. Officer 

Pimienta then put his knees on Pratt’s back and finished handcuffing him. While this was 
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occurring, backup arrived and Carla returned. Pratt was then transported to a hospital.

Carla declined to make a criminal complaint against Pratt. 

Pratt, for his part, claimed that after Carla left to collect her identification, Officer 

Pimienta made a phone call to his superiors. After a short time on the phone, Officer 

Pimienta told Pratt that he had to search him, and Pratt, after initially objecting, 

acquiesced; at Officer Pimienta’s request, he lifted his arms and placed his hands against 

a nearby wall. Once the search was completed and Officer Pimienta stepped back, Pratt 

dropped his arms. This display of initiative angered Officer Pimienta, who responded by 

calling Pratt a racial epithet, demanding that he return his hands to the wall, and 

slamming him against the wall. Next, Officer Pimienta put a handcuff on one of Pratt’s 

wrists, jostled him, and tackled him to the ground by his neck. Pratt landed face-first on 

the concrete, and Officer Pimienta, accompanied now by other officers who had recently 

arrived, pressed his knees on Pratt’s back. At some point during this incident, Pratt began 

to cry because he was in intense pain. 

Pratt was then taken to a hospital. He claimed that because of Officer Pimienta’s 

conduct, he sustained acute, traumatic herniated discs in his cervical spine, and began to 

suffer migraine headaches that persisted for years. Among other things, he presented a 

letter from his chiropractor stating “it is my professional opinion that Mr. Pratt sustained 

injuries as a direct result of the 10/15/2010 accident,” and that “I must conclude, 

therefore, that this injury is fixed and has resulted in a permanent loss of the normal use 
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of the cervical spine along with chronic pain, tenderness and muscle spasm. . . . . [which] 

in itself represents a significant limitation in the patient performing ordinary daily 

functions.” 

Pratt filed a complaint against Officer Pimienta, Port Authority of New York and

New Jersey, and several John Doe defendants (collectively, “the defendants”), raising 

claims of excessive force, false arrest, municipal liability under Monell v. Department of 

Social Services, 436 U.S. 658 (1978), and various claims under state law. The 

defendants filed a motion for summary judgment, which the District Court granted. Pratt 

then filed a timely notice of appeal to this Court.

In this Court, Pratt has filed an informal brief, which consists mostly of irrelevant 

complaints about his attorney’s performance in the District Court. Defendants argue that

Pratt has consequently waived all challenges to the District Court’s order. However, 

because Pratt is proceeding pro se, we will construe his brief liberally. See, e.g., United 

States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). Under this liberal construction, we 

conclude that he has presented two (bare-bones) arguments: (1) that the District Court 

erroneously evaluated the facts in granting summary judgment to Officer Pimienta on the 

excessive-force claim; and (2) that the District Court erred in failing to adjudicate the 

state-law claims. We agree with the defendants that Pratt has waived any other claims. 

See generally United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well 

settled that an appellant’s failure to identify or argue an issue in his opening brief 
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constitutes waiver of that issue on appeal.”); see also Timson v. Sampson, 518 F.3d 870, 

874 (11th Cir. 2008) (per curiam).

We turn first to Pratt’s excessive-force claim under 42 U.S.C. § 1983. This claim 

is analyzed under “the Fourth Amendment’s objective reasonableness standard.” Curley 

v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) (quotation marks omitted). In determining 

whether an officer’s force was reasonable, we consider, among other things, “the severity 

of the crime at issue, whether the suspect poses an immediate threat to the safety of the 

officers or others, and whether he is actively resisting arrest or attempting to evade arrest 

by flight.” Id. at 207 (quotation marks omitted). 

Here, the District Court granted judgment to Officer Pimienta on the ground that 

“[t]he uncontroverted evidence indicates that Plaintiff simply tripped over Defendant 

while Defendant was handcuffing him and that neither Defendant, nor anyone else on the 

scene, ever struck, punched or hit Plaintiff in anyway.”1 However, in reaching this 

conclusion, the District Court impermissibly adopted Officer Pimienta’s version of the 

facts while rejecting Pratt’s; as the factual summary above makes plain, the facts 

 

1 More specifically, the District Court concluded that Officer Pimienta was entitled to 

qualified immunity because there had been no constitutional violation. The Court 

resolved the case without reaching the second prong of the qualified-immunity analysis 

— that is, whether the constitutional right was clearly established at the time of the 

injury, Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) — and we will likewise focus 

on the initial question of whether there has been a constitutional violation, leaving 

analysis of the second prong to the District Court to complete in the first instance if 

appropriate. 
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surrounding the parties’ encounter were hotly contested. See generally Boyle v. Cnty. of

Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998) (“at the summary judgment stage, a 

court may not weigh the evidence or make credibility determinations; these tasks are left 

to the fact-finder”). Indeed, in his deposition testimony (which Pratt filed in opposition 

to the defendants’ motion), Pratt expressly rejected the claim that he just tripped over 

Officer Pimienta’s foot, stating, “No, I didn’t trip over him, he tripped me.” 

Viewing the facts in the light most favorable to Pratt, as we must at this stage, see

id., Pratt did not resist Officer Pimienta in any way, was unarmed, and had committed, if 

anything, a relatively minor offense, yet Officer Pimienta tackled him, face-first, onto the 

ground, twisting his neck on the way down, and causing him serious and permanent 

spinal injuries. Under these facts, a jury could reasonably find that the force Officer 

Pimienta used against Pratt was unreasonable. See, e.g., Raiche v. Pietroski, 623 F.3d 30, 

37 (1st Cir. 2010) (affirming jury verdict in support of plaintiff who was stationary and 

non-threatening when he was tackled by officer); Chelios v. Heavener, 520 F.3d 678, 

689-90 (7th Cir. 2008) (reversing grant of summary judgment to defendant when jury 

could have found that three officers tackled compliant plaintiff); Smoak v. Hall, 460 F.3d 

768, 783-84 (6th Cir. 2006). Thus, although we express no opinion as to the ultimate 

outcome of this case, we conclude that the District Court erred in granting summary 

judgment to Officer Pimienta on Pratt’s excessive-force claim.2

 

2

In the District Court, the defendants’ only argument concerning this claim was that Pratt 
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Moreover, the District Court declined to exercise supplemental jurisdiction over 

Pratt’s claims under state law upon granting judgment to the defendants on all of the 

federal claims. See 28 U.S.C. § 1367(c)(3). Because our decision to remand this matter 

as to Pratt’s excessive-force claim under § 1983 means that not all claims over which the 

District Court has original jurisdiction have been denied, we will also vacate and remand 

the District Court’s order as to supplemental jurisdiction.

Accordingly, we will vacate the District Court’s order to the extent that it (1) 

granted judgment to Officer Pimienta on the excessive-force claim; and (2) declined to 

exercise supplemental jurisdiction over Pratt’s state law claims. In all other respects, we 

will affirm. 

 

had failed to establish a causal connection between his alleged injuries and the alleged 

force. However, even if this is true (an issue on which we express no opinion), Pratt may 

still be awarded nominal damages. See Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir. 

2001); see also Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir. 1996).