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


8-14-2006

Rodriguez v. West New York
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2745




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Recommended Citation
"Rodriguez v. West New York" (2006). 2006 Decisions. Paper 595.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/595


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-2745


                              CALIXTO RODRIGUEZ,

                                                Appellant

                                           v.

                         TOWN OF WEST NEW YORK;
                   ALBIO SIRES; SAL VEGA; DONALD HELLER




                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 02-cv-04046)
                 District Court Judge: Honorable Dennis M. Cavanaugh


                  Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                   June 30, 2006

       Before: BARRY, VAN ANTWERPEN and JOHN R. GIBSON,* Circuit Judges.

                               (Filed August 14, 2006)




                             OPINION OF THE COURT




   *
     The Honorable John R. Gibson, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit.
JOHN R. GIBSON, Circuit Judge.

       After being arrested and charged with driving while intoxicated, Calixto Rodriguez

brought an action under 42 U.S.C. § 1983 against the Town of West New York, Mayor

Albio Sires, Director of Public Safety Sal Vega, and Police Officer Donald Heller raising

claims of unreasonable search and seizure, malicious prosecution, and excessive use of

force. On appeal, Rodriguez contends that the district court erred in granting summary

judgment to Sires and Vega and challenges evidentiary rulings and comments made by

the district judge at Rodriguez's trial against Heller. We affirm.

       In the early morning hours of August 20, 2000, Rodriguez was pulled over by

Officer Heller while he was driving home from Las Palmas Restaurant in West New

York, New Jersey. At trial, Heller and Rodriguez offered different accounts of the stop.

Heller testified that he received a radio report that a person driving a Ford Expedition was

possibly intoxicated, and so he stopped an Expedition that he observed swerving over the

double yellow lines. Heller stated that Rodriguez smelled of alcohol, refused to get out of

his car or perform a field sobriety test, and, after being pulled out of his car by Heller and

another officer, "Mr. Rodriguez wouldn't stand, he just let his legs go limp," so they

handcuffed him. In contrast, Rodriguez testified that he had only two drinks several

hours earlier and had not committed any traffic violations. Rodriguez stated that while he

was reaching for his insurance card after being pulled over, Heller threw him out of the

car onto the ground and handcuffed him. The officers took him to the police station and

held him overnight after he allegedly refused to take a breathalyzer test. The DWI



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charges were subsequently dismissed because the police department failed to comply with

a court order to produce Heller's personnel file and the tape of the radio transmission he

received that night.

       Rodriguez claims that Sires and Vega should be liable for Heller's actions because

they were deliberately indifferent to a "code of silence" in the police department which

permitted police officers to act unconstitutionally. However, the district court correctly

dismissed Sires and Vega from this action. Leaving aside the question of qualified

immunity, in order to be liable under § 1983 as supervisors, individual city officials must

have "personal involvement in the alleged wrongdoing; liability cannot be predicated

solely on the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d

Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). A civil

rights plaintiff must identify specific acts or omissions of the supervisor that evidence

deliberate indifference and persuade the court that there is a "relationship between the

'identified deficiency' and the 'ultimate injury.'" Brown v. Muhlenberg Township, 269

F.3d 205, 216 (3d Cir. 2001) (quoting Sample v. Diecks, 885 F.3d 1099, 1118 (3d Cir.

1989)). Rodriguez did not present any evidence that Sires or Vega were involved in the

alleged constitutional violations arising from the traffic stop or that they were aware of

any previous cases of excessive use of force or malicious prosecution and acquiesced in

such conduct. See Evancho, 423 F.3d at 353. As Rodriguez did not create a genuine

issue of material fact about supervisory liability, Sires and Vega were entitled to summary

judgment.



                                              3
       We are also convinced that the district court did not abuse its discretion in denying

Rodriguez's request for a new trial.

       Rodriguez first argues that the district court made prejudicial comments during

summation. In closing, Rodriguez's counsel argued that the tape of the radio

communication received by Officer Heller was intentionally destroyed in order to cover

up the fact that Heller never had probable cause for the stop. The judge sustained an

objection by defense counsel, stating "There's no testimony of any of that . . . . The

testimony was that Officer Heller had nothing to do with the tapes. And there's no

testimony of coverup or any such thing in this case." A federal judge is permitted to

comment on the evidence so long as the comments do not confuse or mislead the jury or

become so one-sided as to amount to advocacy. Am. Home Assurance Co. v. Sunshine

Supermarket, Inc., 753 F.2d 321, 327 (3d Cir. 1985). No such circumstances exist here,

especially since Rodriguez did not produce any evidence suggesting that Heller attempted

to cover up his misconduct by asking the police department to destroy the tape.

       Rodriguez also argues that the district court erred in refusing to allow the lay

opinion testimony of three former police officers and two physicians. The district court

excluded the testimony on the ground that Rodriguez was required but had failed to

provide Officer Heller with the appropriate expert witness disclosures pursuant to Fed. R.

Civ. P. 26(a)(2). We review this decision under an abuse of discretion standard, although

our review of the district court's legal interpretation of the Federal Rules of Evidence is

plenary. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382-83 (3d Cir. 2002).



                                              4
       The district court did not abuse its discretion in excluding the officers' testimony as

outside the scope of a lay opinion. See Fed. R. Evid. 701(c) (lay witnesses may not testify

based on "specialized knowledge within the scope of Rule 702"). Rodriguez states that

the three former officers would have testified that the West New York police department

fostered a "police culture where police officers routinely act in concert to discredit

victims of police misconduct by committing perjury, filing false police reports and

initiating baseless criminal prosecutions." However, the three officers left the police

force some five to seven years before the traffic stop occurred. Thus, their testimony

would not be based on personal observations about the facts of the case, but rather their

specialized knowledge of customs and practices at the police department. See United

States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006) (per curiam); United States v.

Garcia, 413 F.3d 201, 215-16 (2d Cir. 2005).

       Nor did the district court err in concluding that the testimony offered by the two

physicians fell outside the scope of Rule 701. Rodriguez contends that one of the doctors

would have testified that Rodriguez had visited his office in March 2002 complaining of

shoulder pain and that the other doctor would explain how Rodriguez's diagnosis of

diabetes affected his ability to drink alcohol. The district court did not abuse its

discretion in concluding that a doctor seen almost two years after the traffic stop and

several months before filing the complaint was retained in anticipation of litigation and

was therefore required to file an expert report. See Fed. R. Civ. P. 26(a)(2)(B).

Furthermore, the other physician was not a direct participant in the events at issue nor was



                                              5
he going to testify about his consultation and treatment of Rodriguez. Cf. Gomez v.

Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir. 2003). Rather, he would offer opinion

testimony about the effect of diabetes on a patient's ability to drink alcohol, and the

district court correctly determined that this would amount to an expert opinion based on

specialized knowledge. See Collins v. Prudential Inv. & Ret. Servs., 119 Fed. Appx. 371,

379-80 (3d Cir. 2005).

       We affirm the judgment of the district court.




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