Wayne A. Dreibelbis, Jr. v. TODD SCHOLTON, State College Police Dept.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-4468
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WAYNE A. DREIBELBIS, JR.,
Appellant,
v.
TODD SCHOLTON, State College Police Dept.;
MARK ARGIRO, State College Police Dept.;
ERIC LESHER, State College Police Dept.;
RICHARD OSOSKIE, State College Police Dept.
__________
On Appeal from the United States District Court
for the Middle District
(No. 05-cv-02312)
District Judge: Honorable John E. Jones, III
Submitted Under Third Circuit LAR 34.1(a)
October 23, 2007
Before: SLOVITER, CHAGARES and HARDIMAN, Circuit Judges.
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(Filed: April 11, 2008)
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OPINION OF THE COURT

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CHAGARES, Circuit Judge.
Plaintiff Wayne A. Dreibelbis, Jr., appeals the District Court’s dismissal of his
complaint for failure to state a claim and on qualified immunity grounds. Dreibelbis’s
claims arise from two incidents involving himself and several officers of the State
College Police Department. For the following reasons, we will affirm the District Court’s
judgment.
I.
As we write mainly for the parties, we only briefly recite the facts, accepting
plaintiff’s allegations as true and drawing all reasonable inferences in his favor. Yarris v.
County of Delaware, 465 F.3d 129, 132 n.1 (3d Cir. 2006) (citing Torisky v. Schweiker,
446 F.3d 438, 442 (3d Cir. 2006). Dreibelbis instituted this action against Officers
Scholton, Argiro, Lesher, and Ososkie—in their individual capacities—stemming from
two incidents. During the first, Dreibelbis was videotaping a custody transfer involving
his daughter and his ex-wife when his ex-wife called the police. According to Dreibelbis,
Officers Scholton and Argiro arrived at the scene, ordered him to turn off the
videocamera, grabbed the camera with “significant force . . . threw it approximately 15
feet onto the hood of the police car, and arrested [him] for a violation of a Protection from
Abuse Order.” Appendix (App.) 14. Though the camera was returned to Dreibelbis that
day, he claims that Officers Scholton, Ososkie and/or Argiro destroyed the videotape
sometime between October 24, 2004 and July 31, 2005. Moreover, Dreibelbis contends

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Insofar as Dreibelbis attempts to raise further claims on appeal, such claims are1
considered waived. See Brenner v. Local 514, United Bhd. of Carpenters and Joiners of
Am., 927 F.2d 1283, 1298 (3d Cir. 1991).
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that the tape contained footage relevant to whether he violated the Protection from Abuse
Order (PFA).
On another occasion, when Dreibelbis was scheduled for visitation with his
daughter, Dreibelbis’s ex-wife again called the police. As a result, Officer Lesher came
to Dreibelbis’s house. When Dreibelbis “started to videotape his conversation with
Defendant Lesher that day and informed Lesher that it was being videotaped, Defendant
Lesher told him that he could not videotape their conversation . . . because it was a ‘third
degree felony’ to tape record and record using both audio and video.” App. 10. From
these incidents, Dreibelbis alleges violation of his First Amendment rights based on
retaliation for his videotaping, as well as violation of his Fourteenth Amendment rights
under a denial of access theory, claiming that the officers denied him the ability to
produce the video at his trial for violation of the PFA.1
The District Court granted defendants’ motion to dismiss these claims, finding,
inter alia, that Dreibelbis’s speech was unprotected as it was not a matter of “public
concern.” The Court later denied Dreibelbis’s motion for reconsideration, explaining that
he had failed to contest defendants’ public concern argument, despite ample opportunity
to do so.

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II.
Dreibelbis’s First Amendment retaliation claim—that the officers harassed and
intimidated him for exercising his right to videotape and for complaining about
defendants’ conduct—was properly dismissed. Dreibelbis contends that the District
Court erred by applying the public concern requirement to his speech. As mentioned
above, the District Court found that Dreibelbis had ample opportunity to make this
argument in response to defendants’ motion to dismiss and failed to do so. Accordingly,
the District Court exercised sound discretion when it refused to consider an argument
that, in effect, had been waived. See Confer v. Custom Eng’g Co., 952 F.2d 41, 44 (3d
Cir. 1991); see also Laborers’ Intern. Union of N. Am., AFL-CIO v. Foster Wheeler
Energy, 26 F.3d 375, 398 (3d Cir. 1994).
III.
Dreibelbis’s second claim—that the officers’ failure to return his videotape
deprived him of important evidence that he could have used at his contempt
hearing—was also properly dismissed. Denial of access claims such as Dreibelbis’s
“generally fall into two categories. The first type of claim alleges that some official
action is currently preventing the plaintiff from filing a suit at the present time. . . . In the
second category of cases, the plaintiff looks backward and alleges that some past
wrongful conduct influenced a litigation opportunity such that the litigation ‘ended poorly
or could not have commenced, or could have produced a remedy subsequently

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unobtainable.’” Gibson v. Superintendent of N.J., 411 F.3d 427, 441-42 (3d Cir. 2005)
(quoting Christopher v. Harbury, 536 U.S. 403, 412-14 (2002)). Dreibelbis’s denial of
access claim—that past police misconduct caused his PFA hearing to end poorly—is
clearly of the latter type. In such situations, Heck v. Humphrey provides that “a [42
U.S.C.] §1983 action that impugns the validity of the plaintiff’s underlying conviction
cannot be maintained unless the conviction has been reversed on direct appeal or
impaired by collateral proceedings.” Gilles v. Davis, 427 F.3d 197, 209 (3d Cir. 2005)
(citing Heck v. Humphrey, 512 U.S. 477 (1994)). The “threshold question becomes
whether [plaintiff’s] success on his § 1983 action would ‘necessarily demonstrate’ the
invalidity” of his contempt conviction. Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir.
2006). As Dreibelbis contends that the defendants frustrated his right to access the courts
by suppressing evidence that would have enabled him to demonstrate that he had not
violated the PFA, his Section 1983 action necessarily demonstrates the invalidity of the
contempt conviction, and thus may not be maintained under Heck. See Konopka v.
Borough of Wyoming, 383 F. Supp. 2d 666, 676 (M.D.Pa. 2005) (finding that plaintiff’s
allegations “that defendants have frustrated his right to access the courts by suppressing
evidence” may not be maintained until the underlying conviction is invalidated).
Accordingly, the Court properly dismissed the claim.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.

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