NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 19-2820 ______________

JOSEPH J. WATLEY

v.

MICHAEL FELSMAN; DANIEL NILON; JAMES SOHNS

Michael Felsman; Daniel Nilon, Appellants

______________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-16-cv-2059)

District Judge: Honorable A. Richard Caputo ______________

Argued on May 27, 2020

Before: AMBRO, HARDIMAN, and RESTREPO, Circuit Judges

(Filed: December 30, 2020)

Daniel C. Beck [Argued] Emily Jane Rodriguez Pennsylvania State Police Office of Chief Counsel 1800 Elmerton Avenue Harrisburg, PA 17110

Counsel for Appellants Cynthia L. Pollick [Argued] P.O. Box 757 Clarks Summit, PA 18411

Counsel for Appellee

______________

OPINION* ______________

RESTREPO, Circuit Judge

Corporals Michael Felsman and Daniel Nilon appeal from the judgments entered

against them in this civil rights action brought by Joseph J. Watley stemming from a

traffic stop. Nilon appeals the judgment in favor of Watley following trial related to his

search of Watley’s vehicle.1 Felsman appeals the summary judgment entered against him

and in favor of Watley on Watley’s unreasonable seizure claim and the judgment entered

against him after trial and in Watley’s favor on a related excessive force claim. Both

* This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 1 To the extent Nilon intends an appeal of the order denying his summary judgment motion as to the qualified immunity defense to the illegal search claim, we dismiss because he did not appeal the order within 30 days and the claim proceeded through trial. See Ortiz v. Jordan,

(2011) (holding that a party may not appeal an order denying summary judgment after a trial on the claim and must proceed by way of Rule 50 motions to preserve the issue); Weimer v. County of Fayette, Pa.,

(3d Cir. 2020) (“An interlocutory order appealable under the collateral order doctrine must be appealed within thirty days of its entry.”). 2 challenge the denial of qualified immunity related to those claims. For the reasons which

follow, we affirm in part and reverse in part.

I.

On May 11, 2016, Mr. Watley was pulled over by Corporal Felsman who issued

three traffic citations. After issuing the citations, Felsman arrested Watley and placed

him in hand and leg restraints before transporting him to appear before a state magisterial

district judge to address the citations.

Corporal Nilon and Trooper James Sohns conducted a search of Watley’s vehicle

before it was towed. Nilon searched the driver’s side of the vehicle, including the

passenger compartment, underneath and behind the seats, in the door cubbies, in the

center console, the trunk, and around the spare tire. Trooper Sohns searched the

passenger side of the vehicle, including the passenger compartment and under the seats.

He also looked in the trunk of the vehicle. Sohns testified that only a camera phone and

accompanying phone case were found.

After his initial appearance, the judge ordered Watley to be imprisoned overnight.

The following morning, May 12, 2016, Watley was transported from the jail to court in

hand and leg restraints, which remained on him when he appeared in front of the judge.

After the judge realized the citations were issued in another jurisdiction, the hearing was

rescheduled, and Watley was ordered released on his own recognizance.

At the judge’s request, Corporal Felsman drove Watley to his vehicle at the

impound lot. Felsman informed Watley that the hand and leg restraints would need to

3 remain on during the ride to the lot. Upon arrival at the lot, Felsman removed the

restraints and told Watley that he was free to go.

Watley filed a Complaint and three Amended Complaints in the District Court

pursuant to

, alleging, among other things, various violations of his

constitutional rights. As to the events of May 11, 2016, the District Court granted

summary judgment against Watley and in favor of Felsman on Watley’s claims of

unreasonable search and seizure and excessive force against Felsman, and against Watley

and in favor of Corporal Nilon on Watley’s claims of unreasonable search and seizure of

his person against Nilon. As to the events of May 12, 2016, the District Court granted

summary judgment in favor of Watley on his claim of unreasonable seizure against

Felsman and ordered damages to be determined at trial.

The claims against Nilon and Sohns regarding the search and seizure of Watley’s

vehicle on May 11, 2016 and the unreasonable seizure (as to damages) and the excessive

force claims against Corporal Felsman for Watley’s transport from the magisterial district

judge’s office to the impound lot on May 12, 2016 proceeded to trial. After trial, the jury

awarded Watley nominal damages against Corporal Felsman on each separate claim of

illegal seizure and excessive force, as well as against Corporal Nilon on the claim of

unreasonable search. The jury found that Trooper Sohns did not violate Watley’s Fourth

Amendment right to be free from unreasonable search and seizure.

4 II.2

On appeal, Nilon argues that “[t]he jury’s finding of a Fourth Amendment

violation by [him] directly conflicts with the judgment in favor of Trooper James Sohns.”

Appellants’ Br. 30. We affirm the District Court’s decision not to disturb the jury’s

verdict on the claim against Nilon for his search of Watley’s vehicle following Watley’s

arrest on May 11, 2016. “Credibility determinations are the unique province of a fact

finder, be it a jury, or a judge sitting without a jury.” Dardovitch v. Haltzman,

, 140 (3d Cir. 1999).

Unless an exception applies, warrantless searches and seizures are presumptively

unreasonable and therefore in violation of the Fourth Amendment. United States v.

Mundy,

(3d Cir. 2010). A police inventory search of an impounded

vehicle is a “well-defined exception to the warrant requirement of the Fourth

Amendment.” United States v. Bradley,

(3d Cir. 2020) (quoting

Colorado v. Bertine,

(1987)). “Lawful inventory searches must be

conducted according to standardized criteria or established routine consistent with the

purpose of a non-investigative search,” to ensure the search is limited in scope. Mundy,

621 F.3d at 287–88 (internal quotation marks omitted). This prevents an inventory

search for valuables from becoming an unlawful ruse to discover incriminating evidence.

Id. at 288.

2 We have appellate jurisdiction pursuant to

. This Court exercises plenary review over a district court’s grant of summary judgment. Thomas v. Tice,

(3d Cir. 2020). 5 At trial, Nilon testified that there was a regulation allowing for an inventory

search, but no written policy was ever submitted into evidence. Though a written policy

need not be admitted into evidence in order for an inventory search to fall under the

exception to the warrant requirement, see Bradley,

n.5, it was the jury’s

province to assess the credibility of testimony pertaining to the search in reaching its

conclusion as to whether Sohns or Nilon conducted an inventory search and whether that

search was unlawful. See Pitts v. Delaware,

(3d Cir. 2011)

(explaining that a jury is permitted to find testimony not credible in concluding a

supposed inventory search was unlawful).

The jury determined that Corporal Nilon’s conduct in searching Watley’s vehicle

exceeded the scope of a legitimate inventory search and thus violated Watley’s Fourth

Amendment right. Sohns explained to the jury that when conducting a non-inventory

search, the search would be “more intensive” than an inventory search and that they

would look in the trunk for “contraband hidden inside of the spare tires.” App. 362-63.

Although Nilon and Sohns searched Watley’s vehicle together, Sohns testified that he

merely “looked” in Watley’s trunk, App. 362, but Nilon admitted he searched the

vehicle’s spare tire. Because there was evidence that Corporal Nilon’s search of the

vehicle was broader in scope than Trooper Sohns’ search and was consistent with a

search for contraband as described by Sohns, the jury’s finding that Corporal Nilon’s

6 search of the vehicle was unlawful and overbroad in violation of the Fourth Amendment

was not clearly erroneous.3 See, e.g., Pitts,

.

With regard to the summary judgment entered in favor of Watley and against

Corporal Felsman for an illegal seizure in the transport of Watley from the judge’s office

to the impound lot on May 12, 2016, we reverse. We likewise reverse the related

Judgment on the jury’s verdict against Felsman on the excessive force claim for that

transport.

Despite multiple amended complaints, Watley failed to include allegations

challenging the transport from the judge’s office to the impound lot. The Third Amended

Complaint merely alleges: “On May 12, 2016, Plaintiff was unlawfully search [sic] and

seized by Defendant Felsman when he handcuffed and shackled Plaintiff upon leaving

the jail.” App. 532 (emph. added). A review of the operative Amended Complaint

reflects no allegations referring to the transport from the court to the impound lot, nor any

claim challenging Felsman’s conduct in that transport. The District Court erred in

concluding that Watley’s Complaint sufficiently alleged a claim challenging the May 12,

2016 transport from the judge’s office to the impound lot. Because Watley failed to

plead the illegal seizure claim against Felsman related to the transport from the judge’s

office to the impound lot, Watley was not entitled to summary judgment on it.

3 “A court has a ‘duty to attempt to read the verdict in a manner that will resolve inconsistencies.’” Pitts,

n.2 (internal quotation marks omitted).

7 Lastly, Appellants argue they were entitled to qualified immunity and that the

District Court erred in denying immunity. With respect to the inventory search of

Watley’s vehicle, Corporal Nilon was not entitled to qualified immunity. In assessing a

government official’s entitlement to qualified immunity, we determine whether a

plaintiff’s constitutional right was violated, and whether that right was clearly established

at the time of the alleged violation such that a reasonable person in the official’s position

would have known that his or her conduct violated it. Pearson v. Callahan,

(2009).

Here, it was clearly established at the time of the incident that, as Appellants

acknowledge, consistent with the Fourth Amendment right to be free from unreasonable

searches, “[l]awful inventory searches must be ‘conducted according to standardized

criteria’ or established routine, consistent with the purpose of a non-investigative search.”

Mundy,

(quoting Bertine,

n.6); see Appellants’ Br. 30

(citing Mundy and Bertine). Appellants argue Nilon is entitled to qualified immunity on

the basis that “the evidence established that the inventory search was conducted in a

reasonable manner and consistent with routine procedures.” See Appellants’ Reply Br.

15. However, as explained, the jury assessed the credibility of the witnesses who

testified at trial regarding the search, see Pitts, 646 F.3d at 156–57 (explaining that a jury

has the right to discredit an officer’s testimony regarding the legitimacy of an inventory

search), and found that Nilon’s search was not limited to an administrative search. A

reasonable person in Nilon’s position would have known that performing the

investigative search under the circumstances violated Watley’s clearly established right.

8 With respect to Watley’s claims of an unconstitutional seizure and use of

excessive force related to the transport of Watley from the judge’s office to the impound

lot, we agree that Felsman was entitled to qualified immunity. Felsman argues that it was

not clearly established on May 12, 2016 that a reasonable officer in his position would

have known that his transporting Watley in handcuffs from the court to the impound lot

violated Watley’s rights.

“For qualified-immunity purposes, ‘clearly established rights are derived either

from binding Supreme Court and Third Circuit precedent or from a robust consensus of

cases of persuasive authority in the Courts of Appeals.’” James v. N.J. State Police,

(3d Cir. 2020) (citing Bland v. City of Newark,

(3d Cir.

2018)) (internal quotation marks omitted). Here, at the time of the challenged conduct,

no Supreme Court precedent, Third Circuit precedent, or robust consensus of persuasive

authority had held that “an officer acting under similar circumstances as [Corporal

Felsman] . . . violated the Fourth Amendment.” See

(citing White v. Pauly,

(2017)). Therefore, Felsman was entitled to qualified immunity.

III.

Accordingly, we affirm the District Court’s Judgment in favor of Mr. Watley and

against Corporal Nilon on the claim related to the search of Watley’s vehicle on May 11,

2016, and reverse the District Court’s Judgment in favor of Watley and against Corporal

Felsman on the claims related to Mr. Watley’s transport to the impound lot on May 12,

2016.

9