                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-2003

Tobin v. Badamo
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3918




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"Tobin v. Badamo" (2003). 2003 Decisions. Paper 195.
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                                               NOT PRECEDENTIAL

      THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      ___________

                      No. 02-3918
                      ___________

                 MICHAEL TOBIN, JR.;
                 MICHAEL TOBIN, III,

                           Appellants


                           v.

           MICHAEL BADAMO, Officer; NEW
          CASTLE TOWNSHIP; NEW CASTLE
          TOWNSHIP POLICE DEPARTMENT;
              MICHAEL O. SKRINCOSKY,
           Individually; JOSEPH R. SKROBAK

                      ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                 (D.C. Civil No. 00-cv-00783)
      District Judge: The Honorable James M. Munley

                      ___________

        Submitted Under Third Circuit LAR 34.1(a)
                   September 5, 2003


BEFORE: SLOVITER, NYGAARD, and ROTH, Circuit Judges.
                                 (Filed October 21, 2003)

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Appellants Michael Tobin, Jr. (“Tobin Jr.”) and Michael Tobin, III (“Tobin

III”) (collectively, “the Tobins”) brought suit against Appellees Michael Badamo,

Michael Skrincosky, Joseph Skrobak, and New Castle Township (“the Township”),

alleging various violations of Appellants’ civil rights, including a violation of 42 U.S.C. §

1983 (“section 1983”). The District Court granted Appellees’ motion for summary

judgment with respect to all claims against Skrincosky, Skrobak, and the Township. A

jury found in favor of Badamo, the only remaining defendant. Appellants challenge the

District Court’s partial grant of summary judgment, as well as several evidentiary rulings

made during trial. We will affirm.

I. FACTS AND PROCEDURAL HISTORY

              As the facts are known to both parties, we will review them only briefly.

Appellant Tobin Jr. is the father of Appellant Tobin III. Tobin III was elected to the

Township’s Board of Supervisors in 1996, joining Appellees Skrincosky and Skrobak on

the board. Appellee Badamo was hired as a police officer for the Township in 1999, and

was placed under the authority of Tobin III in his capacity as the Supervisor of Police.



                                              2
              After a period of growing animosity, Tobin III and Badamo engaged in a

confrontation on September 29, 1999, over the policies Tobin III had attempted to

implement for the police department. The parties disagree about the nature of this

confrontation. Badamo asserts that Tobin III confronted him while he was on duty and in

his police uniform, spitting in his face, shoving him onto his desk and challenging him to

take off his badge and step outside to fight. Badamo further claims that Tobin Jr. visited

him shortly after this incident and threatened him, in an attempt to dissuade him from

filing charges against Tobin III. The Tobins deny engaging in any threatening or violent

behavior.

              Following this confrontation, Badamo claims he spoke to the other two

supervisors and consulted the district attorney and state police. Then he filed a probable

cause affidavit and arrested Tobin III for aggravated assault, simple assault, official

oppression, and disorderly conduct. Later that day Badamo requested the issuance of a

summons for Tobin Jr. on a charge of terroristic threats. Badamo promptly informed the

news media of the charges against the Tobins. A state magistrate dismissed all criminal

charges against the Tobins after a preliminary hearing.

              Subsequently, the Tobins filed suit against all the Appellees and the New

Castle Police Department, alleging violations of section 1983, substantive due process,

the Fourth Amendment, and the First Amendment; as well as libel and slander, false

imprisonment, and malicious prosecution. The Tobins also requested punitive damages.

In an order that is not under appeal, the District Court dismissed the New Castle Police

                                              3
Department as a party, the punitive damages claim against the Township, and the claim

for the violation of substantive due process.

              The District Court granted a portion of the Appellees’ motion for summary

judgment in an order filed April 25, 2002. All counts against Skrincosky, Skrobak, and

the Township were dismissed, while the Tobins were allowed to proceed to trial with

their claims against Badamo. Trial was held September 24-25, 2002, and the jury returned

a verdict in favor of Badamo on all counts.

              The Tobins filed notice of the current appeal on October 17, 2002. This

Court has jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

              A. Summary Judgment

              The Tobins challenge the District Court’s grant of summary judgment on

behalf of the Township, Skrincosky, and Skroback. This Court exercises plenary review

of the District Court’s grant of summary judgment. See Blair v. Scott Specialty Gases,

283 F.3d 595, 602-03 (3d Cir. 2002). As did the District Court, we examine the facts in

the light most favorable to Appellants and affirm the grant of summary judgment if there

is no genuine issue of material fact and Appellees are entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c).

              A municipality may be held liable under section 1983 when its failure to

supervise police officers reflects a policy of deliberate indifference to constitutional

rights. See Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998). Such

                                                4
deliberate indifference is established if: 1) municipal supervisors had contemporaneous

knowledge of the offending incident or of a “prior pattern of similar incidents,” and 2) the

supervisors’ action or inaction somehow communicated approval of the offending

behavior. Id. at 127.

               The Tobins offer no support for the contention that Township supervisors

Skrincosky and Skroback had contemporaneous knowledge that Badamo was filing false

charges, and they did not raise this claim before the District Court. See App. at 10.

Instead, they contend Skrincosky and Skroback did not sufficiently supervise the

Township’s police department, and failed to respond when Badamo improperly took his

patrol car out of town, wrote an offensive memoranda to Tobin III, persistently wore the

wrong uniform, ordered business cards without permission, and demonstrated hostility

toward Tobin III. Brief of Appellant at 29-30. None of these transgressions can be

classified as “similar to” an unlawful arrest, the alleged misconduct that gives rise to this

suit. Therefore, these contentions do not implicate the kind of deliberate indifference

necessary for a municipality to be liable under section 1983, and the District Court was

correct in granting summary judgment in favor of the Township. See Montgomery, 159

F.3d at 127.

               The Tobins also challenge the District Court’s grant of summary judgment

to Skrincosky and Skroback as individuals, based on the finding that they enjoyed

qualified immunity. Government officials enjoy immunity from civil actions related to

their discharge of discretionary functions, as long as their conduct does not “violate

                                              5
clearly established statutory or constitutional rights of which a reasonable person would

have known.” Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As discussed above, the Tobins have

not demonstrated that Skrincosky or Skroback did anything that violated the Tobins’

rights, and which might therefore constitute conduct that voids qualified immunity.

Accordingly, the District Court’s grant of summary judgment was appropriate.

              B. Evidentiary Rulings

              This Court reviews the District Court’s decision to admit evidence for abuse

of discretion. See United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999). We do not

disturb the District Court’s exercise of discretion unless it rests upon “a clearly erroneous

finding of fact, an errant conclusion of law or an improper application of law to fact.”

Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000) (internal quotations and

citation omitted).

              The Tobins contest the District Court’s refusal to allow Badamo to be

questioned at trial about a lawsuit he filed against the Township. Since this lawsuit was

filed some time after the events that gave rise to the current case, and concerned a

separate employment grievance, the District Court did not abuse its discretion by finding

that it was irrelevant and therefore inadmissible.

       The District Court likewise did not abuse its discretion in preventing cross-

examination of Badamo on the subject of a 10-year-old arrest for drunk driving, and

subsequent enrollment in Pennsylvania’s Accelerated Rehabilitative Disposition program.

                                              6
Because discussion of this objection was held largely off the record, the ground on which

the Court excluded this evidence is not clear. However, the Court could properly have

held that the evidence was inadmissible under Fed. R. Evid. 609, governing admissibility

of prior convictions, and Fed. R. Evid. 404(b), governing admissibility of prior bad acts.

The Court could also have properly found that the prejudicial effect of the evidence

substantially outweighed its probative value, under Fed. R. Evid. 403.

       Finally, the District Court appropriately exercised its discretion by preventing the

questioning of witnesses in regard to a statement made by the Township solicitor in a

memorandum to the Township supervisors. The solicitor was not called as a witness, and

the Court could have properly concluded that the statement was inadmissible as hearsay

under Fed. R. Evid. 802. If the District Court did make any error in excluding the

testimony, it was surely harmless, because evidence of the solicitor’s recommendations

was ultimately admitted through the testimony of two witnesses. See App. at 24, 44.

III. CONCLUSION

       For the reasons set forth above, we will affirm the District Court’s grant of

summary judgment and the judgment entered on the jury verdict, and deny Appellant’s

request for a new trial.



_________________________


TO THE CLERK:


                                             7
Please file the foregoing opinion.




              /s/ Richard L. Nygaard_________________________________
              Circuit Judge




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