                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 10-1822
                                   _______________

                                     JASON BARR,
                                             Appellant

                                            v.

      THE COUNTY OF CLARION, ADULT PROBATION/PAROLE OFFICER
              ELIZABETH B. GRAHAM and JOHN DOES 1-5,

                                   _______________

                    On Appeal from the United States District Court
                       For the Western District of Pennsylvania
                                 (D.C. No. 2:08-cv-866)
                     District Judge: Honorable Nora Barry Fischer
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 25, 2011
                                  _______________

    Before: FUENTES and CHAGARES, Circuit Judges, and POLLAK, Senior District
                                  Judge*

                             (Opinion filed March 14, 2011)
                                   _______________

                                      OPINION
                                   _______________




*
 Honorable Louis H. Pollak, District Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge

       Plaintiff Jason Barr appeals from the District Court‟s order granting summary

judgment to the defendants for alleged violations of Barr‟s due process rights. For the

following reasons, we affirm the judgment of the District Court.

                                             I.

       Because we write primarily for the parties, who are of course fully familiar with

the background of this case, we set forth only the facts and procedural history that are of

central relevance to our decision. On November 4, 1998, Barr was sentenced to seven

years of probation for forgery and theft by unlawful taking by the Clarion County Court

of Common Pleas. On July 18, 2001, Barr was arrested for driving under the influence

and possession of marijuana. This conduct violated the terms of his probation, prompting

the district attorney‟s office to recommend to the Court of Common Pleas that Barr‟s

probation be revoked and that he be imprisoned and sentenced to additional probation.

On December 20, 2001, Judge James G. Arner (“Judge Arner”) of the Court of Common

Pleas held a revocation hearing at which the prosecutor and Barr‟s public defender agreed

to the sentencing recommendations, including a five-year probation term. Because of a

transcription error, however, the order issued by Judge Arner on that date included all of

the sentencing recommendations except for the five-year probation term.

       On February 20, 2002, Elizabeth Graham (“Graham”), Barr‟s probation officer,

wrote a letter to Judge Arner which said the following:

       Dear Judge Arner:



                                             2
       On December 20, 2001, Jason Barr was sentenced at a [revocation] hearing
       on a probation violation.        It was my recommendation and the
       recommendation of the District Attorney that Jason [Barr] receive a
       sentence of [not less than] twenty-three days nor more than two years less
       one day, followed by a consecutive five year probation period.

       After checking with [court stenographer] Barb Everman, she said that her
       notes indicated that the consecutive probation period was [ADA Mark
       Aaron‟s] recommendation, but that it did not appear in the order. Do you
       have any objection to signing the attached amended order, which includes
       the consecutive probation? Jason [Barr] agreed to the recommendation at
       the hearing.

       Thank you for reviewing this matter. If you have any questions, please
       contact me.

       Respectfully,
       Elizabeth B. Graham
       Adult Probation/Parole Officer

Graham did not provide a copy of this letter, or the enclosed proposed order, to the

district attorney, to Barr, or to Barr‟s public defender. Judge Arner signed the proposed

order on February 25, 2002, and Barr‟s sentence was amended and extended by an

additional five years of probationary supervision. Judge Arner did not give notice to the

district attorney, to Barr, or to Barr‟s public defender before issuing the amended order.

       In November of 2005 and July of 2006, Barr violated the conditions of his

probation and was incarcerated for a total of 188 days. On October 10, 2006, Barr filed a

petition to vacate illegal sentence in the Court of Common Pleas. The petition argued

that under 42 Pa. C.S. § 5505,1 a sentencing court may only amend a sentence within


1
 See 42 Pa. C.S. § 5505 (“Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from such order
has been taken or allowed.”).
                                             3
thirty days of the initial order. Noting that sixty-seven days passed between the entry of

the original sentence and the issuance of the amended order, the petition argued that the

amended order was illegal and void ab initio. On October 13, 2006, Judge Arner granted

the petition.2

       Thereafter, Barr filed the present action under 42 U.S.C. § 1983, alleging that

defendants—probation officer Graham and the County of Clarion (“County”) 3—violated

his constitutional due process rights. Barr‟s complaint seeks to hold Graham individually

liable for her actions which led to the modification of his sentence. It also seeks to hold

the County municipally liable because the Office of Adult Probation/Parole for Clarion

County allegedly maintained a policy or custom of communicating with judges regarding

criminal cases ex parte. Following discovery, the District Court granted defendants‟

motion for summary judgment on February 23, 2010, finding that (1) Barr‟s claims were

barred by the statute of limitations; (2) Barr had failed to establish that the defendants‟

conduct was the proximate cause of the alleged due process violation; (3) Barr failed to

establish that the probation office‟s practice of communicating directly with Judge Arner

was attributable to the County of Clarion; and (4) Barr‟s claims against defendant

Graham were barred by qualified immunity.




2
  As explained in footnote 7, infra, whether Judge Arner‟s amended order did violate §
5505 is a matter of dispute. We find it unnecessary to resolve that dispute in this appeal.
We presume, as did the district court, the invalidity of the amended order.
3
  The complaint also included claims against several Doe defendants. Because Barr was
not able to ascertain the identities of the Doe defendants after reasonable discovery, the
district court dismissed these claims. Barr has not appealed that ruling.
                                              4
         Barr has appealed all of these rulings. Because we agree that Barr has failed to

demonstrate proximate cause—a failure that is fatal to his claims against both Graham

and the County—we affirm the judgment of the District Court on that basis, without

reaching the district court‟s other rulings. 4

                                                 II.

         The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343.

We have jurisdiction under 28 U.S.C. § 1291. “Our standard of review applicable to an

order granting summary judgment is plenary.” Kossler v. Crisanti, 564 F.3d 181, 186 (3d

Cir. 2009) (quotations and citations omitted). In exercising this review, “[w]e may affirm

the order when the moving party is entitled to judgment as a matter of law, with the facts

viewed in the light most favorable to the non-moving party.” Id. (quotations and citations

omitted); Fed. R. Civ. P. 56(c). We may affirm the District Court‟s summary judgment

order on any grounds supported by the record. Shook v. Avaya, 625 F.3d 69, 72 (3d Cir.

2010).




4
  We also grant the defendants‟ motion for leave to file a supplemental appendix. Barr
does not contest defendants‟ motion with respect to supplemental appendix pages 1-12.
Barr does, however, object to supplemental appendix pages 13-14, which contain a letter
from Judge Arner to defendants‟ counsel authored in December 2008 stating his
“position” that defendant Graham “did not violate any of [Barr‟s] rights.” Even if Barr is
correct that Judge Arner‟s letter is hearsay not fitting within any exception, “hearsay
statements can be considered on a motion for summary judgment if they are capable of
admission at trial.” Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223 at n.
2 (3d Cir.2000). Because Judge Arner could “testify about the substance of [his letter] at
trial,” Smith v. City of Allentown, 589 F.3d 684, 694 (3d Cir. 2009), the letter may be
considered on a motion for summary judgment.
                                                 5
                                             III.

       To properly state a claim under 42 U.S.C. § 1983 for a violation of the Fourteenth

Amendment‟s Due Process Clause, a plaintiff must, among other things, establish that the

defendant “subjected the plaintiff, or caused the plaintiff to be subjected to” the

deprivation of a protected liberty interest without due process. Sample v. Diecks, 885

F.2d 1099, 1113 (3d Cir. 1989). In evaluating causation, “[i]t is axiomatic that „[a]

§ 1983 action, like its state tort analogs, employs the principle of proximate causation.‟”

Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000) (quoting Townes v. City of New York,

176 F.3d 138, 146 (2d Cir.1999)); see also Hector v. Watt, 235 F.3d 154, 160 (3d Cir.

2000). The concept of “proximate cause” has traditionally been defined “as a person‟s

wrongful conduct which is a substantial factor in bringing about harm to another.”

Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004) (citing Restatement (Second) of

Torts § 431). However, “an intervening act of a third party, which actively operates to

produce harm after the first person‟s wrongful act has been committed, is a superseding

cause which prevents the first person from being liable for the harm which his antecedent

wrongful act was a substantial factor in bringing about.” Id. (citing Restatement

(Second) of Torts § 440-441).

       In Egervary v. Young, we recognized that “the actions of a judicial officer may

sever the chain of causation” between the wrongful act of a party who appeared before

the judicial officer and the harm that befell another as a result. Id. at 246. In Egervary,

we distinguished between a party‟s misrepresentations of law and misrepresentations of

fact in determining whether the chain of causation was broken. A judge‟s error of law is

                                              6
generally sufficient to sever the chain of causation, even if a party misrepresented the

state of the law to the judge, because “it is axiomatic that, in any given case, the

responsibility for determining the governing law and procedures lies with the judge.” Id.

at 249. However, because a judge depends on the party appearing before her to honestly

state the facts relevant to the judge‟s decision, a judge‟s actions do not sever the chain of

causation where the party makes “an inadequate or false representation of the factual

basis upon which the legal ruling depended.” Id.

       Egervary noted that the Second Circuit‟s decision in Warner v. Orange County

Department of Probation, 115 F.3d 1068 (2d Cir. 1997), suggests that some qualification

of this general framework is called for when the case involves the conduct of a probation

officer. See Egervary, 366 F.3d at 249 n.7.5 The plaintiff in Warner brought a § 1983

action against his probation department in Orange County, New York, alleging that a

probation condition requiring his attendance at Alcoholics Anonymous (“A.A.”)

meetings forced him to participate in religious activity in violation of the First

Amendment‟s Establishment Clause. The Warner court stated that:

5
  Egervary did not involve conduct by a probation officer. Rather, that case involved an
international child custody dispute in which a private attorney, at the request of the State
Department, agreed to represent the child‟s Hungarian father pro bono. 366 F.3d at 241.
The private attorney appeared before the district judge at an ex parte hearing and
persuaded the judge to issue an order requiring the child‟s mother to hand over the child
to the private attorney for immediate transport to Hungary. Id. at 241-42. The attorney
told the district court that the court was not required to provide the child‟s mother with a
post-deprivation hearing, and the court did not provide such a hearing. Id. The mother
later sued the private attorney for unconstitutionally infringing her due process rights. In
that suit, we held that due process required a post-deprivation hearing, but found that the
attorney‟s “misrepresentation . . . [was] a legal one and not an inadequate or false
representation of the factual basis upon which the legal ruling depended.” Id. at 249. We
therefore held that the judge‟s action constituted a superseding cause. Id.
                                              7
       The probation officer . . . is not a partisan advocate aligned with either the
       prosecutor or the defendant. He is a neutral adviser to the court. . . . Given
       the neutral advisory role of the probation officer toward the court, it is an
       entirely natural consequence for a judge to adopt the [probation officer‟s]
       recommendations as to a therapy provider without making an independent
       investigation of the qualifications and procedures of the recommended
       provider.

115 F.3d at 1072-73 (citations and alterations omitted). In Egervary, which involved

misrepresentations of law by a party involved in an international child custody dispute,

we distinguished Warner on the ground that judges confronting attorneys “appearing in a

partisan capacity . . . should „know[] that scrutiny is warranted.‟” 366 F.3d at 249 n.7

(quoting Warner, 115 F.3d at 1072).

       The District Court, relying on Egervary, held that Graham‟s letter was not the

proximate cause of Barr‟s alleged due process injury because the letter contained no

misrepresentations of fact and “the court acted as an intervening cause” by acting on the

letter. Appellant‟s Appendix at 11. The District Court did not address Egervary‟s

discussion of Warner in its opinion, and Barr argues that Warner‟s reasoning requires us

to reverse the District Court‟s holding because this case involves an error by a probation

officer upon whose advice it would be natural for the judge to rely.

       While it is true that Pennsylvania law, like the law of New York applied in

Warner, requires that probation officers serve a neutral advisory role, see Commonwealth

v. Rhodes, 990 A.2d 732, 747 (Pa. Super. 2009), we reject the argument that Warner

supports a finding of proximate cause under the circumstances of this case. Warner

placed heavy emphasis upon the fact that:



                                             8
       [c]ourt adoption of the probation officer‟s recommendation is particularly
       likely when the recommendation deals with a provider of therapy. Judges
       are unlikely to possess particularized information about the relative
       characteristics and merits of different providers of therapy. For this type of
       information, courts generally rely heavily on probation department
       recommendations.

115 F.3d at 1073. In addition, the Warner court stressed that its:

       discussion relates only to the selection of a therapy provider and not at all
       to the court‟s determination of appropriateness of probation and of alcohol
       therapy. The selection of a provider of therapy is not an issue of law, and
       courts are ill equipped to perform this task without relying heavily on
       recommendations.

Id. at 1073 n.4. Thus, we understand Warner to articulate a rule that a judge‟s adoption

of a probation officer‟s recommendation will not sever the chain of causation if the

recommendation involves a determination that the judge is “ill equipped” to make

without “relying heavily” on information provided by the probation officer. Id.6

       It is plain that Judge Arner was capable of determining, without any help from the

probation office, under what circumstances he could amend a sentence after its issuance.

Making this determination would presumably have required him to consult the relevant

statutory provision which governs such amendments, see 42 Pa. C.S. § 5505, along with

any judicial decisions construing that statute. These are standard judicial tasks requiring

no special outside expertise or knowledge, and for this reason Judge Arner was in a

position to make an “independent exercise of judicial review.” Egervary, 366 F.3d at


6
 Of course, if a probation officer makes an “inadequate or false representation of the
factual basis upon which [a] legal ruling depended,” a judge‟s order based on such a
misrepresentation would not constitute a superseding cause. Egervary, 366 F.3d at 249.
Because Graham‟s letter does not contain any misrepresentation of fact, Barr cannot
establish proximate cause on this basis.
                                             9
248. Thus, we hold that Graham‟s ex parte communication with Judge Arner cannot be

considered the proximate cause of any due process deprivation Barr may have suffered as

a result of Judge Arner‟s order. Instead, at most,7 this appears to be one of those

unfortunate cases in which the sentencing judge “fail[ed] in the primary judicial duty of

identifying the legal principles and procedures which govern the dispute.” Id. at 249.

       For these reasons, we affirm the judgment of the District Court.




7
 We note that there is some question regarding whether Judge Arner failed to comply
with 42 Pa. C.S. § 5505 when he issued the amended order. Defendants argue that he
was permitted to amend the sentencing order more than 30 days after it was issued,
pointing to Pennsylvania state court precedents which recognize an exception to Section
5505 “where the mistake is patent and obvious.” Commonwealth v. Walters, 814 A.2d
253, 256 (Pa. Super. Ct. 2002). Thus, if we did not resolve this case on proximate cause
grounds, we would have to address whether the mistake in this case was “patent and
obvious.” We would also have to determine whether, even if the mistake was “patent and
obvious,” Judge Arner was nonetheless required to give “notice to the parties” prior to
amending Barr‟s sentencing order. See 42 Pa. C.S. § 5505 (“Except as otherwise
provided or prescribed by law, a court upon notice to the parties may modify or rescind
any order . . . .” (emphasis added)). Because we find that Graham‟s actions could not
have been the proximate cause of any due process violation Barr may have experienced,
we do not reach these questions.
                                             10
