                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2006

Gibson v. Paterson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1343




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Recommended Citation
"Gibson v. Paterson" (2006). 2006 Decisions. Paper 448.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/448


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                                                    NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                            No. 05-1343
                           ____________

                       KATHLEEN GIBSON,

                                 Appellant

                                  v.

            CITY OF PATERSON; MARTIN G. BARNES,
   Mayor of the City of Paterson and Martin G. Barnes, Individually;
ALCOHOLIC BEVERAGE CONTROL BOARD of the City of Paterson;
         BOB GRANT, Public Information Coordinator of the
             City of Paterson and Bob Grant, Individually;
      ANTHONY ZAMBRANO, Acting Finance Director of the
         City of Paterson and Anthony Zambrano Individually;
JOHN GIVENS; MIGUEL DIAZ; JAMES WATKINS, as Commissioners
  of The Alcoholic Beverage Control Board; MADELINE RAMIREZ
                            ____________

                            No. 05-1522
                           ____________

                       KATHLEEN GIBSON

                                  v.

         CITY OF PATERSON; MARTIN G. BARNES,
  Mayor of the City of Paterson and Martin G. Barnes, Individually;
ALCOHOLIC BEVERAGE CONTROL BOARD of the City of Paterson;
       BOB GRANT, Public Information Coordinator of the
           City of Paterson and Bob Grant, Individually;
    ANTHONY ZAMBRANO, Acting Finance Director of the
      City of Paterson and Anthony Zambrano Individually;
JOHN GIVENS; MIGUEL DIAZ; JAMES WATKINS, as Commissioners
  of The Alcoholic Beverage Control Board; MADELINE RAMIREZ,

                                              Appellants
                           ____________

                            No. 05-2148
                           ____________

                      KATHLEEN GIBSON,

                                  Appellant

                                     v.

         CITY OF PATERSON; MARTIN G. BARNES,
  Mayor of the City of Paterson and Martin G. Barnes, Individually;
ALCOHOLIC BEVERAGE CONTROL BOARD of the City of Paterson;
       BOB GRANT, Public Information Coordinator of the
           City of Paterson and Bob Grant, Individually;
    ANTHONY ZAMBRANO, Acting Finance Director of the
      City of Paterson and Anthony Zambrano Individually;
                 JOHN GIVENS, MIGUEL DIAZ,
               JAMES WATKINS, as Commissioners
             of The Alcoholic Beverage Control Board;
                 JOHN GIVENS; MIGUEL DIAZ;
           JAMES WATKINS; MADELINE RAMIREZ
                           ____________

           On Appeal from the United States District Court
                     for the District of New Jersey
                        (D.C. No. 99-cv-01029)
            District Judge: Honorable Faith S. Hochberg
                             ____________

             Submitted Under Third Circuit LAR 34.1(a)
                        September 15, 2006




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               Before: FUENTES, FISHER and McKAY,* Circuit Judges.

                               (Filed: September 18, 2006)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       We write only for the parties and thus will forgo lengthy recitation of the factual

and legal background to this case. Kathleen Gibson brought suit against the city of

Paterson and several of its officials under 42 U.S.C. § 1983. After a jury trial, judgment

was entered for Gibson. Gibson now appeals the entry of judgment and the award of

attorney’s fees. The defendants cross-appeal.

                                             I.

       Kathleen Gibson was employed as a tax collector and served as Secretary to the

Alcohol Beverage Control Board for the City of Paterson. In 1996 she disclosed to the

public that Martin Barnes failed to pay his property taxes. After Barnes became Mayor in

1997, the City filed a disciplinary action against Gibson with the Office of Administrative

Law asking to have Gibson removed from her position as tax collector. Gibson claimed

that the proceedings were brought in retaliation for her disclosures about Barnes. The

Administrative Law Judge found that Gibson had not engaged in any dishonest practices




       *
        The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth
Circuit, sitting by designation.

                                             3
or acted in an inexcusably negligent manner. She retained her job and all reprimands

were removed from her employment file.

       In March of 1999, Gibson was removed from her position as Secretary of the

Alcohol Beverage Control Board. Gibson argued that her removal was in further

retaliation for her disclosures about Barnes.

       Following her removal from the Alcohol Beverage Control Board, Gibson initiated

a § 1983 action against the City of Paterson, Barnes as its Mayor and individually, and a

number of other individuals involved with the Alcohol Beverage Control Board.

Following a five-day jury trial, the District Court submitted a special verdict form to the

jury. The jury returned a verdict in favor of Gibson. The District Court entered judgment

against the defendants individually and granted Gibson’s motion for attorney’s fees in

part. Gibson now appeals.

                                                II.

       Gibson first contends that the District Court erred by refusing to impose joint and

several liability against the City of Paterson. Following testimony at trial, the District

Court issued jury instructions and a special verdict form. The instructions informed the

jury that it could find the City of Paterson liable if Gibson’s rights were violated pursuant

to the enforcement of a city policy. The instructions further stated that if the jury found

that Barnes, acting as Mayor, deprived Gibson of her constitutional rights, it could also

hold the City of Paterson liable. The special verdict form allowed the jury to allocate

damages between the City and each individual defendant.

                                                4
       The jury returned the verdict form, allocating damages to the City and each

defendant. Prior to the Court’s entry of judgment, Gibson moved to have the entire

judgment entered against the City of Paterson based on a theory of joint and several

liability. The Court denied the request, stating that by not objecting to the verdict sheet,

which did not include a theory of joint and several liability, Gibson waived her right to a

determination on that issue.

       When a court submits a special verdict form to the jury, if it omits “any issue of

fact raised by the pleadings or by the evidence, each party waives the right to a trial by

jury of the issue so omitted unless before the jury retires the party demands its submission

to the jury.” Fed. R. Civ. Pro. 49(a). If no demand is made, the court may make the

finding itself, or the judgment shall be made in accord with the judgment on the special

verdict. Id.

       Gibson does not contend that she objected to the special verdict form. By failing

to object, Gibson waived her right to a jury determination of joint and several liability.

Therefore, while the Court could have made a ruling on the issue of joint and several

liability, it did not act outside of its discretion when it simply entered judgment in accord

with the special verdict. Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 94 (3d

Cir. 1993) (“A review of the jury instructions demonstrates that the punitive damages

issue was submitted and the verdict rendered on an individual basis against various

defendants, and we find no basis for the contention that a case should not be tried in this

manner.”)

                                              5
                                              III.

       Gibson next appeals the District Court’s partial denial of her motion for attorney’s

fees. The District Court awarded Gibson attorney’s fees for her attorney’s work on the

§ 1983 action, but denied attorney’s fees for the time her attorney spent preparing for and

defending Gibson in front of the Administrative Law Judge.

       Section 1988(b) of Title 42 allows for recovery of attorney’s fees by a successful

§ 1983 party. It provides: “In any action or proceeding to enforce a provision of . . . this

title . . . the court, in its discretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs . . . .” We review a district court’s

decision to grant attorney’s fees for abuse of discretion. Goodman v. Penn. Tpk.

Comm’n, 293 F.3d 655, 676 (3d Cir. 2002).

       Recovery for reasonable attorney’s fees does not include time spent on such

administrative hearings when they constitute an element of the harm for which suit is

brought. “Section 1988(b) which governs fee and cost awards for § 1983 claims, allows

such awards to the party who prevails on the merits of the federal claim.” Lui v. Comm’n

on Adult Entm’t Establishments, 369 F.3d 319, 327-28 (3d Cir. 2004). The proceedings

in front of the Administrative Law Judge were underlying state proceedings that do not

entitle Gibson to “seek fees and costs in federal court.” Id. at 328.

                                              IV.

       Gibson’s final contention – that the jury verdict should have been molded to

compensate for negative tax consequences – is without merit. Gibson claims that because

                                               6
the award of $700,000 will place her in a higher tax bracket than her $60,000 salary

alone, the judgment should be increased to compensate her for the additional $190,000 in

taxes that she will have to pay. The very few cases discussing this issue have found such

treatment appropriate only when damages are for back-pay, resulting in disparate tax

treatment between those wages, had they been paid when owed, and their payment as a

lump sum. See Skretvedt v. E.I. Dupont De NeMours, 372 F.3d 193, 204 n.15 (3d Cir.

2004) Gelof v. Papineau, 829 F.2d 452, 456 (3d Cir. 1987). This is not such a case.

Gibson’s damages were for not back-pay, but rather were awarded based solely on

emotional pain and mental anguish.

                                             V.

       The defendants’ cross-appeals are equally without merit. They claim that the

District Court improperly submitted a jury instruction on whether Gibson had a property

interest in her position as secretary of the Alcohol Beverage Control Board. “A party

who objects to an instruction or the failure to give an instruction must do so on the record,

stating distinctly the matter objected to and the grounds of the objection.” Fed. R. Civ.

Pro. 51(c). The defendants did not object to the jury instruction on the record; therefore

we review for plain error and will “reverse the trial court only where a plain error was

fundamental and highly prejudicial, such that the instructions failed to provide the jury

with adequate guidance and our refusal to consider the issue would result in a miscarriage

of justice.” Collins v. Alco Parking Corp., 448 F.3d 652, 656 (3d Cir. 2006) (quoting

Franklin Prescriptions, Inc. v. New York Times, Co., 424 F.3d 336, 399 (3d Cir. 2005)).

                                             7
There is no evidence of such fundamental prejudice or a serious miscarriage of justice

here. We find no plain error.

       The defendants also claim that the jury verdict is inconsistent and, therefore, a new

trial should be granted. The written jury verdict bearing the signatures of the jury found

that one of the defendants, Miguel Diaz, was not protected by immunity and assessed

damages against him in the amount of $25,000. At the time the verdict was read in court,

the jury foreperson answered “yes” to the following question: “That Defendant Miguel

Diaz reasonably believed that he was not violating the Plaintiff’s right to challenge the tax

collector removal proceedings when Plaintiff was removed as secretary to the Alcohol

Beverage Control Board.” An affirmative answer would have resulted in immunity.

However, the answer on the verdict form said no, and damages were assessed against

Diaz. The jury foreperson’s misstatement regarding the verdict does not invalidate the

written verdict form. The District Court acted within its power when shaping judgment

based on the jury’s special verdict. See McLaughlin v. Fellows Gear Shaper Co., 786

F.2d 592, 596 (3d Cir. 1986) (quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

Ltd., 369 U.S. 355, 369 (1962)). We find no error.

       The defendants’ final preserved claim is that the District Court abandoned its

proper judicial role and assumed that of an advocate when it questioned a witness. We

have held that a trial judge may question a witness, so long as she does not excessively

intervene, thereby abandoning her judicial role. United States v. Wilensky, 757 F.2d 594,

597 (3d Cir. 1985). The District Court in this case asked the city attorney five questions

                                             8
regarding a city statute. This kind of questioning does not rise to the level of adopting the

role of an advocate. Id.

       The defendants’ remaining claim was not preserved for appeal. The defendants

claim that the District Court improperly excluded evidence regarding Gibson’s prior job

performance. Under Federal Rule of Evidence 103(a)(2), a party who objects to the

exclusion of evidence must do so on the record and indicate what the excluded evidence

would have shown. The defendants admit in their brief that no such objection or showing

was made on the record.

       Accordingly, we will affirm the judgment of the District Court.




                                             9
