05-4465 (consolidated) ADRIAN KEITH TOTTON, SR. v. Charles A. Keller

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS: 05-4411, 05-4465
(consolidated)
ADRIAN KEITH TOTTON, SR.,
Appellant
v.
CHARLES A. KELLER; OFFICER TERRY WELAND;
TWO UNNAMED HARRISBURG POLICE OFFICERS
_______________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 04-cv-00730)
Magistrate Judge: Honorable J. Andrew Smyser
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
August 11, 2006
Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES
(Filed: November 8, 2006)
_______________________
OPINION
_______________________
PER CURIAM
These consolidated appeals arise from a ruling in favor of State Police Defendants
after a non-jury trial, in which Appellant Adrian Totton alleged the use of excessive force
during the booking of a criminal defendant on an outstanding warrant. Totton has
proceeded pro se since the inception of this litigation, and he continues to do so on

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1 We are unsure whether Respondent’s name is Wealand or Weland. Although Totton
consistently spells the Officer’s name without the “a”, his own counsel uses the spellings
interchangeably. For purposes of consistency, we use “Weland.”
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appeal. Although we have not been provided the trial transcripts, for the reasons that
follow, we will affirm.
I.
In February 2003, Officer Weland,1 came across Totton walking along a
Harrisburg street. Weland discovered that Totton was wanted on outstanding warrants.
Weland informed Totton of the situation, put him in handcuffs, and placed him under
arrest. When they reached the station, Weland escorted Totton to the booking area.
Totton alleged that during his booking, Weland walked over to him and attempted to grab
him in some manner. Totton moved away and said “what’s your problem.” Totton
alleged that Weland then unexpectedly kneed him in the stomach even though he was still
handcuffed. Totton alleged that when he leaned forward in pain, another officer jumped
on his back and together, the police took him to the floor. Totton claimed that Weland
then punched him and pushed his head into the floor while making racist comments and
physical threats. The incident allegedly left Totton with a chipped tooth, split lip, injured
neck, back, and wrists, and tattered clothes.
Officer Weland told a slightly different story. He claimed that although Totton
was cooperative during the initial arrest, he became combative in the cruiser, butting his
head against the plexiglass. Totton was also apparently drunk. Weland stated he

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attempted to inventory Totton’s hat at the police states. Totton refused to give it up and
took a defensive position, as if readying for a fight. Another officer confirmed this
account. At that point, several officers used “empty-handed control measures” to wrestle
Totton to the floor in order to regain control. They claimed that at no point did they hit,
knee, push, kick, or punch Totten in any way. He was, however, eventually subdued and
placed in a cell.
In April 2004, Totton filed a complaint pursuant to 42 U.S.C. § 1983 against
Charles Keller, the Harrisburg Chief of Police, Officer Weland, and two unnamed
officers. The parties agreed to proceed before a Magistrate Judge. The Magistrate Judge
dismissed the two unnamed officers for lack of service. After nearly a year of litigation,
the Magistrate Judge scheduled a bench trial. Totton filed a motion requesting a jury
trial, but the District Court denied the request as untimely. After a one-day trial, the
Magistrate Judge issued two rulings in favor of Keller and Weland respectively.
Specifically, it analyzed Totton’s excessive force claim under the Fourth Amendment and
concluded that although “other less forceful measures” could have been employed, the
officers’ conduct was not unreasonable.
Totton filed an initial appeal in an attempt to preserve his appellate rights. Five
days later, he filed a second notice of appeal, this time specifying the dates of the
appealed from orders. Both appeals were timely and each was docketed here separately.
While the appeals were pending, Totton filed a letter in the District Court dated
September 29, 2005, seeking information on how to obtain transcripts of the trial. The

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District Court directed him to pay the court reporter. Ten calendar days later, he filed a
letter in which he asks the court to provide him with transcripts. The District Court again
responded that he could pay the reporter. Totton also filed other post-trial motions, all of
which were denied. On June 29, 2006, Totton again filed a motion for a transcription of
the record. Without opinion, the Magistrate Judge denied the motion, as well as a number
of other pending motions.
II.
We begin by addressing the Appellees’ argument that the appeal should be
dismissed for Totton’s failure to file a transcript pursuant to Federal Rules of Appellate
Procedure 10(b) and 3(a)(2). Rule 10(b) requires an appellant to order a transcript of the
parts of the District Court proceedings that the appellant considers necessary. Fed. R.
App. P. 10(b)(1). When the Rule is not followed, we have recognized that Rule 3(a)(2)
permits “the court of appeals to act as it considers appropriate, including dismissing the
appeal.” Fed. R. App. P. 3(a)(2); see Horner Equip. Intern., Inc. v. Seascape Pool Ctr.,
Inc., 884 F.2d 89, 92-93 (3d Cir. 1989).
We will first examine whether any of Totton’s arguments on appeal can be
assessed without a transcript. We construe his brief as raising two arguments, (1) that the
Magistrate Judge made an improper ruling with respect to the arrest warrant; and (2) that
the Magistrate Judge applied the incorrect law in assessing the facts.
Although our lack of transcripts prevents us from ascertaining precisely what
ruling Totton refers to in his first challenge, it is clear from his pleadings that not once did

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2 He also appears to argue that the District Court failed to address an Eighth
Amendment claim. However, the Eighth Amendment is applicable only to post-trial
offenders. See Whitley v. Albers, 475 U.S. 312, 318 (1986).
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he raise a false arrest claim prior to trial or any other claim for which the validity of the
arrest warrant would have relevance. His pleadings up to and even after trial deal almost
exclusively with his excessive force claim. As a general rule, a claim that is not raised in
the pleadings or properly introduced through an amendment is forfeited. See Josey v.
John R. Hollingsworth Corp., 996 F.2d 632, 641-42 (3d Cir. 1993). An exception applies
when the parties either expressly or implicitly consent to present an issue at trial. See
Fed. R. Civ. P. 15(b). Here, Totten admits that the Appellees objected to the admission of
evidence relating to a false arrest or an invalid warrant claim at trial. Indeed, even in the
Magistrate Judge’s findings of fact, there is not one mention of evidence relating to a
warrant or Totton’s initial arrest. Thus, even without the assistance of the transcript, we
conclude that the claim was not properly raised. It is now forfeited for the purposes of
appeal.
Totton’s second claim is purely legal. Totton argues that the Court incorrectly
applied the Fourth Amendment’s “objectively unreasonable” excessive force standard.
See Graham v. Connor, 490 F.3d 386, 397 (3d Cir. 1989).2 Under Graham, the
reasonableness standard applies only to claims of excessive force during an arrest. See id.
at 395 n.10; Fuentes v. Wagner, 206 F.3d 335, 346-47 (3d Cir. 2000). The general
guarantees of the Fourteenth Amendment apply to pre-trial detainees. See id. at 341-42;

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Riley v. Dorton, 115 F.3d 1159, 1161-67 (4th Cir. 1997) (analyzing a number of cases
and concluding the Fourteenth Amendment applies to excessive force claims by pre-trial
detainees). While we have never decided at what point an arrest ends and a pre-trial
detention begins, we need not decide the issue here.
Assuming that Totton’s argument is correct and the Magistrate Judge should have
treated him as pre-trial detainee, Totton fails to meet the standard imposed under the
Fourteenth Amendment. To prove a due process violation, the detainee must show that the
force used amounts to a wanton infliction of punishment, as opposed to an amount
“rationally related” to exercising control. See Fuentes, 206 F.3d at 342 (quoting Bell v.
Wolfish, 441 U.S. 520, 538-39 (1979)). Since Totton does not argue with the Magistrate
Judge’s factual conclusions, we find that under the circumstances presented, the
Appellees’ actions were “rationally related” to controlling Totton. Id..
For the foregoing reasons, we will not dismiss the appeal under Appellate Rule
10(b). Instead, we will affirm the order of the District Court.

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