                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-2008

Trueman v. Upper Chichester
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2762




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 07-2762
                                       ___________

                                JEFFREY A. TRUEMAN,

                                                             Appellant
                                             v.

CITY OF UPPER CHICHESTER; MICHAEL FANELLI, Police Officer, Badge Number
       19, individually and as a Police Officer for the City of Upper Chichester;
 DAVID J. MURPHY, Delaware County Regional Court Judge, Magisterial District No.
  3202038, Individually and in his Official Capacity; G. MICHAEL GREEN, Delaware
    County District Attorney; JACKSON M. STEWART, JR., Chief Deputy District
Attorney, Individually and in their official capacity for the office of the District Attorney

                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 04-cv-05085)
                     District Judge: Honorable Clifford Scott Green
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 23, 2008
               Before: MCKEE, SMITH and CHAGARES, Circuit Judges

                             (Opinion filed: August 19, 2008)

                                       ___________

                                        OPINION
                                       ___________
PER CURIAM

          Appellant, Jeffrey A. Trueman, appeals pro se from the District Court’s orders

dismissing his complaint in part, granting judgment as a matter of law in part, and

entering judgment following a jury verdict on the remaining claims. For the reasons that

follow, we will affirm.1

                                               I.

          In the early morning hours of January 31, 2003, Trueman was driving in Upper

Chichester Township (the “Township”) when Police Officer Michael Fanelli, who was in

his police car on routine patrol, saw him drive through an intersection without slowing or

stopping at the stop sign. Officer Fanelli pulled his car behind Trueman’s and signaled

for him to pull over. When Officer Fanelli requested Trueman’s license and registration,

he noticed the smell of alcohol on Trueman’s breath. As a result, Officer Fanelli

conducted a field sobriety test. Trueman failed the test. Officer Fanelli then advised

Trueman that he was under arrest for driving under the influence of alcohol. In response,

Trueman asked Officer Fanelli, “Who sent you, Congressman Weldon?” (Compl. at ¶

11.) Trueman then made several threatening remarks to Officer Fanelli.

          Trueman was taken to police headquarters and charged with driving under the

influence of alcohol (“DUI”), terroristic threats, and failure to stop at a stop sign. Prior to

trial on these charges, Trueman moved to suppress the evidence arising from the traffic



   1
       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                               2
stop on the ground that Officer Fanelli did not have probable cause. Following a hearing,

the Honorable Robert C. Wright of the Delaware County Court of Common Pleas granted

Trueman’s motion. Consequently, the District Attorney’s Office nolle prossed the

charges. Trueman then asked the District Attorney’s Office to investigate Officer

Fanelli’s conduct in connection with the traffic stop. The District Attorney’s Office

investigated the circumstances surrounding the arrest, but found no cause for disciplinary

action against Officer Fanelli.

                                            II.

       In December 2004, Trueman commenced an action under 42 U.S.C. § 1983,

claiming that the traffic stop was part of a government conspiracy against him due to his

work as a veterans’ rights advocate. Trueman alleged federal civil rights violations under

the First, Fourth, and Fourteenth Amendments, and also asserted several state law claims.

The complaint named as defendants: the Township of Upper Chichester and Officer

Fanelli; District Attorney G. Michael Green and Deputy District Attorney Jackson M.

Stewart, who were allegedly involved in both prosecuting Trueman and in investigating

Officer Fanelli; and Judge David J. Murphy, the Delaware County Regional Court Judge

who presided over Trueman’s arraignment.

       In June 2005, the District Court found that Green and Stewart were entitled to

immunity and dismissed Trueman’s claims against them. The court later dismissed the

complaint as to Judge Murphy on the same ground.



                                             3
       Thereafter, the case proceeded to trial against the Township and Officer Fanelli

(the “Township Defendants”). At the conclusion of the liability phase, the District Court

directed a verdict in favor of the Township. Therefore, the sole issue for the jury was

whether Officer Fanelli lacked probable cause to conduct the traffic stop in violation of

Trueman’s rights under the Fourth Amendment. The jury returned a verdict in favor of

Officer Fanelli. Trueman then filed post-trial motions requesting a new trial and

renewing certain pre-trial requests. By order entered May 15, 2007, the District Court

denied the post-trial motions. The present appeal followed.

                                            III.

       A.     Dismissal of District Attorney Green, Deputy District Attorney Stewart, and
              Delaware County District Justice Murphy

       Trueman first challenges the District Court’s orders dismissing his claims against

Green and Stewart, who were allegedly involved in both prosecuting Trueman and in

investigating Officer Fanelli. The District Court found that their actions were entitled to

the protections of absolute immunity. We agree that Green and Stewart were absolutely

immune from suit for actions taken in connection with prosecuting Trueman, as it is well

established that a prosecutor is entitled to absolute immunity for conduct “fairly within

the prosecutor’s function as an advocate.” Buckley v. Fitzsimmons, 509 U.S. 259, 273

(2006) (internal quotations omitted). We are less certain, however, that this immunity

extends to Green’s and Stewart’s alleged failure to conduct an internal investigation into

Officer Fanelli’s misconduct. See id. (explaining that a prosecutor’s administrative duties

                                             4
that do not relate to his preparation for the initiation of a prosecution or for judicial

proceedings are not entitled to absolute immunity) (citation omitted). We need not reach

this question, however, because Trueman’s bare allegations do not state a cognizable

constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding that,

before ruling on immunity in § 1983 cases, the court must first determine whether the

facts alleged show that the officer’s conduct violated a constitutional right).

         Regarding Trueman’s claims against District Justice Murphy, we find, for the

reasons stated by the District Court, that District Justice Murphy was entitled to the

protections of judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 355 (1978)

(internal quotations omitted); Gallas v. Supreme Court of Pa., 211 F.3d 760, 768 (3d Cir.

2000).

         B.    Motion to Amend the Complaint

         Next, Trueman claims that the District Court abused its discretion by denying his

pre- and post-trial requests to amend the complaint. Trueman first sought leave to amend

in May 2006, approximately six months after discovery had been closed. At that time,

Trueman argued that through discovery, he had obtained additional evidence in support of

his theory that the arrest was politically motivated. In light of this new evidence,

Trueman sought to add several new defendants to the complaint. The Township

Defendants opposed the request, arguing that it would be prejudicial to allow Trueman to

add entirely new parties after the end of discovery and while their fully-briefed motion for



                                               5
summary judgment was outstanding.

       By order entered July 26, 2006, the District Court denied Trueman’s motion on the

ground that “the proposed amended Complaint would add new parties and new theories

of liability not presently the subject of this lawsuit.” After the trial, Trueman renewed his

request to file an amended complaint, and the District Court again denied the request.

       We conclude that the District Court acted within its discretion in denying

Trueman’s requests to amend his complaint. Although Federal Rule of Civil Procedure

Rule 15(a) favors allowing amendment “when justice so requires,” a district court has the

discretion to deny such a request if amendment would result in “undue prejudice” to the

opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962); Cornell & Co. v.

Occupational Safety & Health Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978)

(stating that “prejudice to the non-moving party is the touchstone for the denial of an

amendment”). We agree with the District Court that allowing Trueman to add new

parties and new theories of liability so late in the game would have significantly altered

the scope of the case to the prejudice of the defense.

       We also agree with the District Court’s decision to deny Trueman’s post-trial

request to amend. In making his post-trial request, Trueman argued that the District

Court erred in denying his first request because the additional defendants and claims

“would be necessary to advance justice in this civil rights action.” Given that the District

Court acted within its discretion in denying the first motion as unduly prejudicial to the



                                              6
defense, as discussed above, we agree with the District Court that Trueman failed to

present any compelling reason why he should have been able to amend after judgment

was entered against him. See Werner v. Werner, 267 F.3d 288, 296 (3d Cir. 2001)

(internal quotation marks omitted).

       C.     Motion for Recusal

       Next, Trueman challenges Judge Green’s refusal to recuse himself from the case.

According to Trueman, Judge Green was unable to approach the case with objectivity

because he had previously presided over—and dismissed—another one of his cases. We

disagree.

       In July 2006, Trueman sought recusal under 28 U.S.C. § 455(a), which states that

“[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” Recusal of a judge

is proper only if “it appears that he or she harbors an aversion, hostility or disposition of a

kind that a fair minded person could not set aside when judging the dispute.” Liteky v.

United States, 510 U.S. 540, 557-58 (1994) (Kennedy, J., concurring). Here, Trueman

failed to cite any conduct by Judge Green that might raise questions as to his partiality;

rather, Trueman claimed that the Judge was biased solely because he had previously

issued an adverse ruling against him. Without any other indication that Judge Green

harbored a bias against him, there was simply no basis for the Judge to have recused

himself. See id.



                                               7
       We note that, in his appellate brief, Trueman now cites several examples of

allegedly prejudicial comments. For instance, Trueman claims that, when he failed to

follow the proper procedure for admitting a document into evidence, Judge Green

remarked, “that’s not the way you do it, but—,” which caused several jurors to laugh at

him. (Appellant’s Br. 27-28.) Trueman also cites as an example of Judge Green’s bias

his instruction to Trueman to follow the court’s rulings or else he would be held in

contempt. (Id. 12-13.) We are not persuaded that these comments, or any of the others

referenced in Trueman’s brief,2 demonstrate that Judge Green was biased.



   2
    We pause to specifically address one of Trueman’s arguments. In his brief, Trueman
alleges that the following comments by Judge Green at the end of the trial “prove gross
judicial bias and prejudice,” and show that the court had a “pre-determined position” on
the case:

       THE COURT: Well, you know, we’re not really here, and you make that
       argument about whether you can see the sign. The question is whether you
       can see the lights of a vehicle going through without stopping at an
       intersection at which you, from years of patrolling, now is a controlled
       intersection. . . . I mean, whether you can see the sign or not, if you know
       it’s a controlled intersection then you see a vehicles’ headlights continually
       moving and going through that, that would be the failure to stop. I don’t
       know why you have to see the sign to know it.

       TRUEMAN: Well, with all due respect, in that premise, why was I not found
       guilty in the criminal proceedings?

       THE COURT: You may have just got lucky.

(N.T., 11/29/2006, at p. 119.) Even assuming that these remarks could arguably be
construed as improper, we point out that they were made during the hearing on the
Township Defendants’ Rule 50(a) motion, and were therefore spoken outside the
presence of the jury.

                                              8
       D.     Trueman’s Request to “Enter Into the Record” his May 11, 2005 Discovery
              Motions

       Trueman’s next point of error concerns the District Court’s denial of his request to

“enter into the record” certain motions that he had improperly filed during discovery. It

appears that, in May 2005, Trueman drafted a document entitled “motion to compel

discovery, motion to strike frivolous statements, motion for Rule 11 and 37 sanctions . . .

arising from bad faith and improper litigation by Defendants.” Although the motions

were dated May 11, 2005, they were not entered on the docket until November 8, 2005.

Whether the delay in docketing was due to clerical error or Trueman’s own improper

filing is unclear. In any event, at some point in November 2005, Trueman, apparently

under the impression that the motions still remained undocketed, requested the District

Court to “enter his May 11 Motions into the Court record.”

       Before considering Trueman’s docketing request, the District Court considered the

motions themselves and, by order entered November 21, 2005, denied them on the merits.

The same day, the District Court denied as moot Trueman’s request to “enter his May 11

Motions into the Court record.” In denying the latter motion, the court explained that the

documents had indeed been docketed, and had been fully considered on the merits.

       Trueman then filed a motion seeking reconsideration of the District Court’s second

order and a “stay” of the first. Trueman argued that he properly filed his motions back in

May 2005 and that the clerk’s office made a mistake. The District Court denied these

requests. Trueman subsequently attempted to appeal from the District Court’s order, but

                                             9
we dismissed the appeal for lack of appellate jurisdiction. Trueman now claims that the

order has ripened for review, and argues that Judge Green’s “unwillingness to remedy the

critical ‘docket error’” resulted in “manifest injustice.” (Appellant’s Br. 15.)

       We find no abuse of discretion in the District Court’s order denying Trueman’s

motion. As noted above, Trueman’s motions were indeed docketed and then considered

on the merits. Therefore, the District Court properly dismissed as moot Trueman’s

request to have them docketed and properly dismissed Trueman’s request to stay its order

denying the May 11 motions.

       E.     Denial of Motion Requesting Jury Visit to Site of Traffic Stop

       Prior to trial, Trueman filed a motion requesting leave of court to “grant a jury

visit” to the scene of the traffic stop. Trueman explained that his strategy at trial would

be to show that Officer Fanelli falsely accused him of running the stop sign on Cherry

Tree Road in retaliation for his work as a veterans’ rights advocate. According to

Trueman, Officer Fanelli, from his vantage point on Weir Road, could not possibly have

seen him running the stop sign. Thus, Trueman claimed, it was crucial for the jury to visit

the site to see that Officer Fanelli’s account of the incident was untenable. Judge Green,

however, denied the motion, ruling that Trueman could instead use photographs and

diagrams as necessary to depict the intersection at trial. Given that such an on-site visit

would be highly out of the ordinary, the District Court acted well within its discretion in

denying this request. Furthermore, we have reviewed the photographs and diagrams



                                             10
submitted as evidence, and find that they sufficiently depict the scene of the traffic stop.

       F.     Trueman’s Proposed Questions for Voir Dire

       Trueman next claims that the District Court abused its discretion in precluding him

from asking the jury certain questions during voir dire so that he “could seat a fair and

impartial jury.” (Appellant’s Br. 22.) Prior to trial, Trueman submitted a list of

approximately 70 questions concerning the potential jurors’ general understanding of the

law, individual life experiences, and prior jury service. When the jury selection process

was about to begin, Judge Green explained to Trueman that he would ask the proposed

jurors whether they knew any of the parties to the litigation, and explain to them generally

what the case was about. Judge Green then stated:

       I will not go into the political backgrounds or anything of jurors, unless it’s
       something relevant. And I see nothing here that’s relevant. I would give
       you an opportunity at the end of my questioning the jury to suggest
       questions that you would like me to ask the jury. And certainly I would try
       to ask the jury those questions.

(N.T., 11/28/2006, at pp. 32-33.) Although it is not entirely clear from the transcript,

Judge Green was most likely reviewing Trueman’s list of proposed questions when he

stated, “and I see nothing here that’s relevant.” Trueman did not object to the court’s

relevancy ruling. The Judge then proceeded with the voir dire proceedings, during which

only one juror was stricken for cause, and neither Trueman nor the Township Defendants

used any of their peremptory challenges. It does not appear that Trueman requested any

other questioning or made any other objections to the voir dire procedure.



                                             11
       Thus, it appears that Trueman never objected to the District Court’s decision to

preclude his proposed questioning. Furthermore, to the extent that Trueman wished to

obtain additional information from the proposed jurors after the court had concluded its

questioning, Trueman apparently declined to do so. As a result, he has relinquished the

opportunity to challenge this issue on appeal. See United States v. Urian, 858 F.2d 124,

126 (3d Cir. 1988) (holding that defendant failed to preserve the issue of whether the

district court erroneously refused to ask certain questions of the prospective jurors).

       G.     Subpoena of V’ERPA Member, Leigh E. Wise

       Trueman’s next issue on appeal is “whether Judge Green’s allowing of an untimely

subpoena upon V’ERPA member Leigh E. Wise was highly prejudicial and obstructed

Appellant’s rights to a fair trial?” 3 (Appellant’s Br. 18.) It appears that, sometime prior

to trial, Trueman identified Wise as a potential witness, but did not allow the defense to

depose her. As a result, on the first day of the trial, the defense sought to depose Wise

before she took the stand. At that time, the defense also argued to the court that Wise

should not be allowed to testify at all:

       Leigh Wise is going to get up there, she’s not a lawyer, and she’s going to
       pontificate on the law. . . . I have to depose her, if she’s going to testify.
       But she shouldn’t even be allowed to testify, Judge, she knows nothing
       about Mr. Trueman and what took place that night that Fanelli stopped him.

(N.T. 11/27/2006, at p. 9.) In response, Trueman conceded that Wise did not have any



   3
    Trueman is the founder of an organization known as Veterans Equal Rights
Protection Advocacy, Inc. (“ V’ERPA”), of which Wise is a member.

                                             12
personal knowledge of the traffic stop, but explained that she had “personal knowledge of

the damages that resulted from the illegal stop.” The District Court then held that Wise

could testify as to damages, but would not be permitted to testify during the liability phase

of the trial.4

          On appeal, Trueman claims that the “Wise-subpoena highly prejudiced” him and

caused “grave damage to his constitutional due process rights to execute his [case-in-

chief] to its completion.” (Appellant’s Br. 20.) Although Trueman expresses his

objection to the issuance of the subpoena, it appears that he really means to challenge the

court’s decision to preclude him from presenting Wise’s testimony during the liability

phase. Given that, as noted above, Trueman informed the court that Wise’s testimony

went solely to damages, it is difficult to see how he was prejudiced by the court’s

decision. Therefore, we find no abuse of discretion here.

          H.     Denial of Motion to Subpoena Congressman Curt Weldon

          In addition to Ms. Wise, Trueman also identified former Congressman Curt

Weldon as a potential witness at trial. Trueman believed that Congressman Weldon was

part of the alleged government conspiracy to stifle his work as a veterans’ rights

advocate, and that, as part of the conspiracy, Congressman Weldon sent Officer Fanelli to

arrest him under the pretense of a traffic violation. Prior to trial, Trueman confirmed his

intention to subpoena Congressman Weldon and informed the court that some type of



   4
       It appears that Wise was never actually deposed. (N.T., 11/28/2006 at pp. 168-69.)

                                              13
incident with the Congressman—which Trueman believed was somehow relevant to the

present case—had recently occurred in Russia. The District Court denied Trueman’s

request to subpoena Congressman Weldon, explaining to him as follows:

       Listen, the police misconduct here, as you have charged it in your
       complaint, is the arrest of you for inappropriate reasons. . . . Now if you
       think that now, since Congressman Weldon has been the subject of some
       publicity, that you’re going to try all of the allegations about Mr. Weldon in
       this case, that’s not going to happen. . . . You’re going to—I’ll let you
       proceed according to your complaint. But as to what Mr. Weldon did or did
       not do in regard to someone in Russia, is not going to be a subject matter of
       this suit.

(N.T., 11/27/2006, at pp. 22-23.)

       We are unable to find any abuse of discretion in the District Court’s decision. As

noted above, Trueman apparently believed that Congressman Weldon was behind the

traffic stop. We see no indication in the record, however, that Trueman had any evidence

whatsoever tying him to the arrest. Without any such evidence, the District Court

appropriately determined that Congressman Weldon’s testimony was not relevant. See

Fed. R. E. 401.

       I.     Exclusion of Trueman’s Proposed Police “Expert”

       Trueman also sought to introduce retired police officer Steve Copeland as an

expert witness at trial. According to Trueman, Copeland would have testified that Officer

Fanelli failed to follow proper safety procedures when he conducted the stop.5 Prior to


   5
    It is not entirely clear what the basis for Copeland’s testimony would have been. At
the pre-trial hearing, Trueman told the court that, “Mr. Copeland, after he reviewed the
evidence, said that he would be willing, based off of facts of the egregiousness, to testify

                                             14
trial, the Township Defendants sought to preclude Copeland’s testimony on the ground

that Trueman had failed to provide an expert report or curriculum vitae on his behalf. At

the pre-trial hearing, Judge Green stated that, although Copeland might be permitted to

testify as a fact witness to those facts of which he had personal knowledge, the court

would not permit him to opine that Officer Fanelli failed to take sufficient safety

precautions because it was not a proper subject for expert testimony. Judge Green then

stated that he would take the issue under advisement, and refrained from making a final

ruling at that time.

       Now Trueman claims that the District Court’s decision to prohibit Copeland’s

testimony denied him a fair trial. As an initial matter, we note that it is not clear from the

record whether the District Court ever actually reached a final decision on the issue; our

review of the trial transcript does not reveal any further discussion of the matter.

Moreover, to the extent that the District Court did decide to exclude Copeland’s

testimony, we see no error there, as an opinion that Officer Fanelli put himself in danger

during the arrest would not be probative of the issue at trial, namely, whether there was

probable cause for the arrest. See Fed. R. E. 401.

       J.      Exclusion of Judge Wright’s Order Granting Trueman’s Motion to Suppress
               in the Underlying Criminal Case



as an expert police office of 33 years, that he would never make a traffic stop based off of
exhibit P-1. Nobody would.” (N.T., 11/27/2006, at p. 53.) Exhibit P-1, however, is a
police log entry by Officer David R. DiSands, the officer who transported Trueman from
the police department to the courthouse for arraignment.

                                              15
       Next, Trueman claims that the District Court erred in precluding him from

introducing into evidence Judge Wright’s order in the underlying criminal case finding

that the traffic stop was illegal. At trial, Trueman presented as a witness Thomas T. Bush,

Chief of Police for the Township. During Chief Bush’s testimony, Trueman attempted to

have him read into the record Judge Wright’s order. When the defense objected, Judge

Green sent the jury out of the courtroom and explained to Trueman that Judge Wright’s

decision was not admissible. Specifically, Judge Green stated as follows:

       What I’m saying is that you’re trying this case here and asking the jury to
       determine whether there was an unconstitutional conduct on behalf of
       Officer Fanelli based upon the record presented here. Judge Wright
       determined his suppression motion based upon what was before Judge
       Wright. I don’t know and can’t tell whether the identical evidence before
       Judge Wright is that which is being submitted to this jury. Therefore, this is
       neither to be offered to the jury informationally or is binding on them. This
       jury is going to make a determination in this case based upon the record
       submitted here and not the suppression record before Judge Wright.

(N.T. 11/27/2006, pp. 127-28.)

       We see no error in the District Court’s decision. In order to prevail on his Fourth

Amendment claim, Trueman was required to show that Officer Fanelli’s decision to

conduct the traffic stop was not based on probable cause. See Whren v. United States,

517 U.S. 806, 810 (1996). Given that the criminal court’s order does not state the basis

on which it found that the traffic stop was illegal, that court’s legal conclusion was not

relevant to determining whether Officer Fanelli lacked probable cause.6 Therefore, we


   6
    We note that, under principles of collateral estoppel, the state court’s ruling was not
binding on the District Court as a matter of law. See Smith v. Holtz, 210 F.3d 186, 199

                                             16
conclude that the District Court did not err in excluding this order.7

       K.     Attorney Gallagher’s Alleged Attacks on Trueman’s Character

       Next, Trueman claims that, “attorney Gallagher’s rants to discredit the honor,

integrity and character of the Appellant in front of the jury calls for a new trial, in of [sic]

itself.” (Appellant’s Br. 27.) Trueman, however, fails to direct this Court to the specific

questions or comments that might be prejudicial. Therefore, we are unable to review this

claim.8 See Fed. R. App. P. 28(a)(9)(A) (providing that the appellant’s brief must contain

“appellant’s contentions and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies”).

       L.     Alleged Jury Misconduct

       Trueman’s next complaint concerns alleged jury misconduct at the end of the first

day of the trial. Specifically, Trueman claims that at that time, Wise witnessed Police

Chief Thomas T. Bush—who had taken the stand earlier that day—speaking to several

members of the jury outside the courtroom. The following morning, Trueman brought the

alleged incident to Judge Green’s attention. Trueman was unable, however, to identify



n.18 (3d Cir. 2000).
   7
    In his brief, Trueman lists as a separate point of error, “whether all Post-trial Filings
were arbitrarily dismissed by the Judge Green.” (Appellant’s Br. 29.) In support of this
claim, however, Trueman simply reiterates his objection to the District Court’s decision to
exclude Judge Wright’s order from the underlying criminal case.
   8
    In fact, most of Trueman’s argument in support of this claim concerns comments
made by Judge Green, not Mr. Gallagher. (Appellant’s Br. 27-28.) We considered these
and other allegations that Judge Green made improper comments in Section B. above.

                                               17
which jurors had been involved. As a result, Judge Green told Trueman to ask Ms. Wise

to identify the jurors to him, and to then relate their identities to the court at the next

recess. Judge Green assured Trueman that he would then question the jury about Wise’s

allegations. In the meantime, Judge Green reminded the jury that they were not permitted

to have any substantive conversations with parties or witnesses.

       Based on our review of the trial transcript, Trueman never raised the issue on the

record again. In light of the limited information that Trueman gave the court, and in light

of the fact that the court promptly cautioned the jury against any further communication

with witnesses, we cannot say that the District Court erred in failing to take any additional

action in response to Trueman’s allegations.

       M.      Judgment as a Matter of Law for the Township

       Next, Trueman claims that the District Court erred in granting the Township’s

motion for judgment as a matter of law under Fed. R. Civ. P. 50(a). At the close of the

Township Defendants’ case, defense counsel argued that Trueman had failed to establish

that the Township had in place any policy or practice to violate citizens’ constitutional

rights; that the Township had reason to believe that Officer Fanelli would violate a

citizen’s constitutional rights; or that the Township had failed to adequately train the

police department. The District Court granted the Township’s motion, issuing an oral

ruling as follows:

       . . . I will grant the motion as it relates to the Township of Upper
       Chichester because there is absolutely no evidence of any policy


                                               18
       regulation procedure law that authorizes unlawful conduct by a
       police officer, nor is there any evidence from which a jury could find
       that they completely ignored conduct of officers or that there was a
       failure to train or anything else.

       They’re just not in this case. You attempted to make that assertion
       and prove it, but the witnesses you called all testified to the fact of
       the training and so forth of their officers. So, I will grant the motion
       as to all of your claims as it relates to Chichester because as I
       understand it, you would not have claims under their statutes against
       Chichester anyway. They would be barred.

(N.T., 11/30/2006, at p. 120.)

       Based on our review of the transcripts, it appears that the only claim against the

Township at trial was one for negligent supervision under section 1983. In order to

succeed on this cause of action, Trueman had to prove the existence of a policy or custom

that resulted in a constitutional violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 694-

95 (1978). A municipality cannot be held liable under section 1983 on a respondeat

superior theory. Id. at 691. Thus, liability for failure to train subordinate officers will lie

only where a constitutional violation results from deliberate indifference to the

constitutional rights of the municipality’s inhabitants. Groman v. Twp. of Manalapan, 47

F.3d 628, 637 (3d Cir. 1995) (internal quotations omitted).

       Based on our careful review of the record, we agree with the District Court that the

jury could not reasonably have found in Trueman’s favor on his claim against the

Township. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (“A motion

for judgment as a matter of law under Federal Rule 50(a) ‘should be granted only if,



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viewing the evidence in the light most favorable to the nonmoving party, there is no

question of material fact for the jury and any verdict other than the one directed would be

erroneous under the governing law.’”) (quoting Macleary v. Hines, 817 F.2d 1081, 1083

(3d Cir.1987)). Neither the testimony that Trueman introduced nor any other evidence

admitted at trial gave the jury reason to believe that the Township had an inadequate

training program or a municipal policy of negligent supervision which rises to the level of

deliberate indifference required for section 1983 liability. Therefore, we affirm the

District Court’s order granting judgment as a matter of law in favor of the Township.

       N.     Whether the Jury Should have Ruled in His Favor

       Finally, Trueman argues that, based on the evidence he presented through the

testimony of Officers Fanelli and Smoak, the jury should have found in his favor. First,

Trueman claims that, if the jurors had been “paying attention,” they “would have

concluded via the preponderance of the evidence standard that Fanelli was liable to the

Appellant for his ‘illegal’ police conduct.” (Appellant’s Br. 24-25.) Trueman further

alleges that Officer Fanelli’s testimony lacked credibility, and that, as a result, “the jury’s

verdict on behalf of Fanelli was grossly wrong [and] must be overturned in the interest of

justice.” (Id. 26.) Trueman also believes that the testimony of Officer Smoak, an Upper

Chichester Township police officer who was present at the scene of Trueman’s arrest,

“should be discounted by this Court” because he lacked credibility on the stand.9 (Id. 26.)


   9
   To the extent that Trueman argues that he should have been permitted to amend the
complaint in order to add Officer Smoak as a defendant, we have considered this

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       In making these arguments, Trueman misunderstands the role of this Court; we

may not weigh the evidence, determine the credibility of witnesses, or substitute our own

version of the facts for the jury’s version. See Lighting Lube, Inc. v. Witco Corp., 4 F.3d

1153, 1166 (3d Cir. 1993) (citing Fineman v. Armstrong World Indus., Inc., 980 F.2d

171, 190 (3d Cir.1992)). Therefore, we will not disturb the jury’s verdict on the grounds

that Trueman suggests.

                                            IV.

       We have reviewed Trueman’s remaining allegations of error and find them

meritless. Therefore, for the foregoing reasons, we will affirm the District Court’s orders.




argument in section A. above.

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