                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-26-2009

Charles Texter v. Todd Merlina
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2020




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Recommended Citation
"Charles Texter v. Todd Merlina" (2009). 2009 Decisions. Paper 1318.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1318


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                                                         NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 08-2020
                                  ___________

                           CHARLES LEE TEXTER,
                                           Appellant

                                       v.

 TODD MERLINA, (Trooper) an individual; PENNSYLVANIA LIQUOR CONTROL
     BOARD; PENNSYLVANIA STATE POLICE; CHAMBERSBURG POLICE
 DEPARTMENT; RICHARD SWARTZ, an individual; MICHAEL T. DEFRANK, an
   individual; JOHN F. NELSON, an individual; JOHN R. WALKER, an individual;
     HONORABLE JUDGE CAROL VAN HORN, an individual; BOROUGH OF
CHAMBERSBURG; THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
  DISTRICT, PENNSYLVANIA FRANKLIN COUNTY BRANCH; JOHN DOE #3;
   JOHN DOE#2; JOHN DOE#1; JONATHAN NEWMAN; JEFFERY B. MILLER;
 GEORGE BUCK, Pennsylvania State Police Officer; TAMMY TUCK, Pennsylvania
State Police Officer; JEROME BOTCHIE, Pennsylvania State Police Officer; ROBERT
      PATRIZI, Pennsylvania State Police Officer; SCOTT NORTH, Borough of
     Chambersburg Police Officer; THOMAS NEWCOMER, Mayor of Borough of
 Chambersburg; JILL MCCRACKEN, Assistant District Attorney for Franklin County
                       ____________________________________

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                       (M.D. Pa. Civil Action No. 04-00173)
                 District Judge: Honorable Christopher C. Conner
                   ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                February 2, 2009

             Before: McKEE, HARDIMAN and ROTH, Circuit Judges

                          (Opinion filed May 26, 2009)
                                        ___________

                                         OPINION
                                        ___________

PER CURIAM

          Charles Texter, proceeding pro se, appeals following a judgment entered in favor

of several Pennsylvania Liquor Control Enforcement Officers after a jury trial in his civil

rights action. He also appeals certain pre-trial orders of the District Court. We will

affirm.

          Texter sued the Pennsylvania State Police, the Borough of Chambersburg Police

Department, the Pennsylvania Liquor Control Board, and numerous State and Borough of

Chambersburg employees, claiming violations of his constitutional rights stemming from

his arrest at a bar and his conviction for disorderly conduct. The District Court granted

motions to dismiss the complaint filed by the Pennsylvania State Police, the Borough of

Chambersburg Police Department, and the Pennsylvania Liquor Control Board,

concluding that these entities were not “persons” subject to liability under 28 U.S.C.

§ 1983. The District Court also dismissed Texter’s claims against two judges based on

their absolute immunity from suit and dismissed his claims against Assistant District

Attorneys Jill McCracken and John Nelson based on their absolute immunity.

          The District Court granted summary judgment in favor of other named defendants

who lacked personal involvement in the incidents at issue. Texter’s claims against four

Pennsylvania Liquor Control Enforcement Officers for use of excessive force during his


                                               2
arrest and his claim against one officer for failure to intervene went to trial. The jury

returned a verdict in favor of the officers. This appeal followed.

       Texter raises five issues for our review. First, Texter argues that the District Court

erred in placing the burden of proof on him in a trial for false arrest and false

imprisonment. The only claims that went to trial, however, were Texter’s claims for use

of excessive force and failure to intervene. The District Court precluded Texter from

offering evidence at trial to support claims of false arrest and false imprisonment under

Heck v. Humphrey, 512 U.S. 477 (1994). See 2/26/08 Dist. Ct. Order. To the extent

Texter claims that the burden was improperly placed on him to prove his claims at trial,

his claim lacks merit. See Edwards v. City of Philadelphia, 860 F.2d 568, 572 (3d Cir.

1988) (holding that the plaintiff has the burden of proving claim of use of excessive force

in the course of an arrest).

       Texter also claims that the District Court abused its discretion in refusing to allow

him to present evidence at trial regarding the injuries he suffered during his arrest.

Appellees Todd Merlina, George Buck, Tammy Tuck, Jerome Botchie, and Robert Patrizi

(the “Officers”) state that Texter testified about his injuries and presented photographs

depicting them. The Officers state that the District Court precluded certain photographs

that were repetitive and other medical evidence because Texter did not have an expert,

but that Texter was able to establish the nature of his injuries.

       To the extent Texter appeals the District Court’s February 26, 2008, pre-trial order

precluding him from presenting any testimony about his injuries which would require a

                                               3
medical expert, the District Court did not abuse its discretion in precluding such

testimony. See Fed. R. Evid. 701. To the extent Texter appeals the District Court’s

February 29, 2008, order precluding the introduction of certain cumulative photographs,

Texter has not shown that the District Court abused its discretion. Finally, to the extent

Texter argues that the District Court erred in precluding the admission of evidence at trial,

he has failed to file the trial transcript, and we are unable to review a claim of error at

trial.1

          Texter further claims that the District Court abused its discretion in precluding him

from conducting discovery, and that the defendants failed to comply with Federal Rule of

Civil Procedure 26. Texter does not further explain his claim. The Officers correctly

note that Texter never filed a motion to compel discovery in District Court. Texter also

has not identified the nature of the information allegedly withheld or explained how he

was prejudiced. To the extent Texter is claiming that the District Court erred in denying

his October 18, 2007, motion to reopen discovery, which the Officers correctly note was

filed more than a year after the discovery deadline expired and after the case was set for

trial, the District Court did not abuse its discretion.



    1
    The Officers also argue that we lack jurisdiction to review any claim of error at trial
because Texter did not file post-trial motions. It is a rule of practice – not jurisdiction –
that, absent exceptional circumstances, we will not review any issue that was not raised in
the district court. Franki Foundation Co. v. Alger-Rau & Assoc., 513 F.2d 581, 586 (3d
Cir. 1975). The right to appeal is not conditioned upon the filing of post-trial motions,
and there are many instances in which the filing of such motions would be unnecessary
and/or futile Id. at 587.

                                                4
       Texter also claims that the District Court abused its discretion in inviting the jury

to presume facts not in evidence. Specifically, Texter states that “no evidence was

entered into the record to verify the identities of any of the defendants, to verify that any

of the defendants were actually government employees, or that any of the defendants

were acting in compliance with any statutory authority whatsoever, yet counsel for the

defendants repeatedly pled the defendants as state actors carrying out lawful duties.”

Appellant’s Br. at 9. Texter’s claim is unclear. To the extent he contends that there was

no evidence establishing that the defendants acted under color of state law, Texter had the

burden of proving that the defendants acted under of color of state law when they violated

his federal rights. Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).

       Finally, Texter claims that the District Court erred in dismissing his claims against

certain defendants on grounds of official immunity based on unsworn statements of

counsel. Texter does not further explain his claim, other than arguing that qualified

immunity is more appropriately addressed at the summary judgment stage rather than on a

motion to dismiss. To the extent Texter contends that the District Court erred in granting

the motions to dismiss of prosecutors Jill McCracken and John Nelson based on absolute

and qualified immunity, we disagree. Texter alleged in his amended complaint that

Nelson had failed to take certain actions during his state court criminal proceedings, and

that McCracken had laughed at him while he was detained at the Borough of

Chambersburg Police Department. The District Court did not err in holding that

McCracken and Nelson were entitled to absolute immunity for acts undertaken while

                                              5
initiating and pursuing a criminal prosecution. See Hughes v. Long, 242 F.3d 121, 125

(3d Cir. 2001). The District Court also ruled that Nelson and McCracken did not

participate in a violation of Texter’s constitutional rights, a conclusion that he does not

dispute on appeal.

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




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