                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-13-2004

Maldonado v. Olander
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2114




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Recommended Citation
"Maldonado v. Olander" (2004). 2004 Decisions. Paper 397.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/397


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                                                      NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 03-2114

                           MARIO DIAZ MALDONADO,

                                               Appellant

                                          v.

     ROBERT A. OLANDER, WARDEN; WILLIAM J. BEERS, LIEUTENANT;
    WHITE, CORRECTIONAL OFFICER; VOLPE, CORRECTIONAL OFFICER;
   LAMBERT, CORRECTIONAL OFFICER, NORTHAMPTON COUNTY (DEPT.
    OF CORRECTIONS); SHOUDT, CORRECTIONAL OFFICER; AXELDARE,
     CORRECTIONAL OFFICER; AXELBAND, CORRECTIONAL OFFICER




                       _________________________________

                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                    District Judge: The Honorable R. Barclay Surrick
                                 (D.C. No. 02-cv-1922)
                       _________________________________

                              Argued on March 25, 2004

                           Before: FUENTES, SMITH, and
                          JOHN R. GIBSON,* Circuit Judges

                               (Filed: August 13, 2004)




      *
       The Honorable John R. Gibson, Senior Circuit Judge for the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
                                  OPINION OF THE COURT
                                  _______________________

JOHN R. GIBSON, Circuit Judge.

       Mario Diaz Maldonado, a former inmate at Northampton County Prison, brought

suit under 42 U.S.C. § 1983 against five corrections officers. He alleged that the officers

used excessive force in restraining him after a fight with another inmate, in violation of

the Eighth Amendment to the United States Constitution. The district court entered

judgment after the jury returned a verdict for the defendant officers. Maldonado appeals,

arguing that the district court erred when it excluded evidence of the internal affairs

investigation that occurred at the prison after the incident. We affirm.

       In April 2000, Maldonado was incarcerated at Northampton County Prison, where

guards intervened in a fight between Maldonado and another inmate. After receiving a

letter from another inmate about the incident, the warden of the prison asked the acting

internal affairs officer, Michael Pittaro, to investigate. Pittaro's investigation consisted of

reading the officers' written reports of the incident and possibly interviewing two of the

officers.1 During the investigation, Maldonado signed a written release drafted by Pittaro

stating that he did not want to pursue charges and did not want the incident referred to the

District Attorney for an investigation. Pittaro testified in his deposition that he drafted the

unique document and offered it to Maldonado to protect himself, in case Maldonado



       1
         Pittaro does not recall speaking to any of the defendants during his investigation, but two
of the officers recall speaking with him.

                                                 2
alleged at some future time that he had wanted to pursue charges but Pittaro had refused

to investigate. Maldonado alleges that in exchange for signing the release, Pittaro offered

him a transfer to the state prison in which he was formerly housed and no disciplinary

action. If Maldonado did not sign, he would be sent back to Northampton for 100 days of

solitary confinement.

       Maldonado filed this action alleging that the five corrections officers used

excessive force in restraining him after the fight. Prior to trial, the defendants filed a

motion in limine seeking to exclude evidence of Pittaro's internal affairs investigation,

including the release signed by Maldonado. The defendants argued that the evidence was

irrelevant under Federal Rule of Evidence 402. In the alternative, the defendants argued

that the evidence should be excluded under Federal Rule of Evidence 403 because the

probative value was substantially outweighed by the danger of prejudice to the defendants

and confusion of the issues. Maldonado opposed the motion, arguing that this evidence

was relevant as direct evidence of what Pittaro learned from the officers and because the

drafting of the release illustrated Pittaro's tacit acknowledgment of the officers'

wrongdoing.

       After hearing argument from both sides, the district court decided not to allow the

plaintiff to introduce evidence of Pittaro's investigation. The district court reasoned that

the evidence was about what individuals other than the defendants might have done and

what conclusions they may have reached on their own and therefore did not bear on the



                                               3
incident itself, especially when the plaintiff was not claiming there was a pattern or

practice of excessive force at the prison under Monell v. Dep't of Soc. Servs., 436 U.S.

658 (1978). Thus, the district court concluded that the evidence "would go far afield and

be prejudicial." However, the district court noted that Maldonado had the right to call

Mr. Pittaro to testify:

       With regard to Mr. Pittaro's testimony, however, if you want to put Mr.
       Pittaro on the stand and ask him, what may have been said to him by any of
       the parties in this matter, you certainly have every right to do that. Any
       admission made to Mr. Pittaro may be brought before this jury, but what --
       what he may have concluded as a result of what he was told and any action
       that he may have taken on his own, is excluded.

Maldonado did not call Pittaro as a witness during the trial.

       In general, we review a trial court's rulings on the admissibility of evidence for

abuse of discretion. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341 (3d Cir. 2002).

However, if the district court makes a tentative ruling excluding the evidence but suggests

that it would reconsider the ruling at trial, the party must attempt to introduce that

evidence at trial in order to preserve the issue for appellate review. Walden v. Georgia-

Pacific Corp., 126 F.3d 506, 517-18 (3d Cir. 1997). If the party does not, we review only

for plain error. Id.

       Thus, whether the district court's ruling was "definitive" in excluding the evidence

or only "tentative" determines our standard of review. When the district court excluded

the evidence, it explicitly mentioned the option of calling Pittaro to testify. Maldonado's

counsel asked the court to clarify what he could and could not ask Pittaro while on the

                                              4
stand. The following exchange occurred:

       THE COURT: "Well, Counsel, I'm going to have to take it as it comes,
       because --
       DEFENSE COUNSEL: Okay, that's fair, your Honor.
       THE COURT: -- I don't know exactly what -- where -- where it will go.
       You -- I have indicated to you, that admissions of the defendants to M r.
       Pittaro, any statements made by them to Mr. Pittaro are evidentiary. His
       report and that material is not.
               And you can try to develop through Mr. Pittaro what the defendants
       said and I'll have to take it as it -- as it comes.

Although the district court made other statements to suggest its ruling was definitive, the

court never repudiated its statement that it would "take [] as it comes" any testimony by

Pittaro regarding the earlier investigation. Because the relevant question is whether the

district court's ruling to exclude was a definitive ruling with "no suggestion that it would

reconsider the matter at trial." Walden, 126 F.3d at 519 (emphasis added), we conclude

the ruling was tentative and review only for plain error. 2

       The plain error doctrine "should only be invoked with extreme caution in the civil

context." Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1289 (3d

Cir. 1995) (quoting United States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995)). Thus,

"[a] finding of plain error is only appropriate in the civil context when the error is so

serious and flagrant that it goes to the very integrity of the trial." Walden, 126 F.3d at




       2
         However, we would also affirm under the abuse of discretion standard of review
that would apply if the ruling was definitive or if Maldonado had made an offer of proof
concerning the investigation. We reject Maldonado's argument that we should review the
district court's Rule 403 ruling de novo.

                                              5
521. Accordingly, we use the power to reverse for plain error "sparingly." Penn. Envtl.

Def. Found. (P.E.D.F.) v. Canon-McMillan Sch. District, 152 F.3d 228, 234 (3d Cir.

1998).

         The Federal Rules of Evidence define relevant evidence as anything "having any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence." Fed. R.

Evid. 401. Considering the low threshold of relevance, we will assume for the sake of this

appeal that the evidence Maldonado wished to admit was relevant to his claim of

excessive force. Cf. Combs v. Wilkinson, 315 F.3d 548, 554-55 (6th Cir. 2002) (holding

that report by institution's use of force committee was relevant in inmate's claim alleging

excessive force). Even if evidence is relevant, however, it may be excluded under

Federal Rule of Evidence 403 "if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence." This is an analysis that is best conducted by the district judge who was in the

courtroom; as we stated in United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978), "[i]f

judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is

reviewed by an appellate tribunal."

         Maldonado argues on appeal that the district court erred in excluding the evidence

of Pittaro's investigation. Because no offer of proof was made, it is difficult for us to



                                                6
engage in a meaningful review of the evidence and understand the precise purpose for

which M aldonado would have offered the evidence. See Walden, 126 F.3d at 518 n.10.

However, Maldonado asserts that he "did not (and does not) intend to offer Mr. Pittaro's

investigatory report containing his conclusions as to whether the defendants used

excessive force. The plaintiff intended to question Mr. Pittaro only about the facts

learned in his investigation and his reasons for drafting the release." 3

       The "facts" Pittaro learned in his investigation were either already in evidence or

were permitted to be introduced. Pittaro's investigation consisted of reading the

defendants' incident reports and possibly interviewing two of the defendant officers. The

incident reports Pittaro relied upon were admitted into evidence. The two officers who

allegedly spoke to Pittaro testified, as did the inmate whose letter prompted the

investigation. Thus, the district court's exclusion of the report precluded the presentation

of cumulative evidence and ensured that the jury would not give undue weight to Pittaro's

understanding of the facts. Cf. Vance v. Peters, 97 F.3d 987, 994-95 (7th Cir. 1996)

(upholding exclusion of employee review officer's report concluding that guard had used

excessive force on Rule 403 grounds because it was cumulative and more prejudicial than

probative, giving rise to concern that the jury would give "inordinate weight" to the

hearing officer's conclusions). There was no plain error.


       3
         This is consistent with Maldonado's oral representation to the district court that he "did
not intend to produce any evidence of what [Pittaro's] conclusions were . . . . " To the extent that
Maldonado challenges the district court's ruling because he wanted to introduce the fact of the
investigation itself, the ruling was not plain error.

                                                 7
       Likewise, the district court did not commit plain error in excluding evidence of the

release and the circumstances surrounding Maldonado's signing of it. Maldonado argues

that the release drafted by Pittaro was admissible to show the defendants' "consciousness

of guilt." Maldonado essentially suggests that because the release was specially drafted,

and because Pittaro allegedly bribed Maldonado into signing it by promising him no

disciplinary action and a desired transfer, Pittaro must have concluded that the defendants

did something bad. The release was therefore intended to protect the defendant officers

and thwart any further investigation. The district court did not commit plain error by

rejecting this quite tenuous inferential chain. First, for Maldonado's inferential sequence

to work, the defendants must have said something incriminating to Pittaro during the two

interviews. However, the district court explicitly allowed Maldonado to call Pittaro and

question him on the substance of those conversations; Maldonado chose not to do so.

Second, Maldonado fails to cite a case where the "consciousness of guilt" principle was

applied in the civil context. Third, the release itself contained no language that could

have given rise to an inference that excessive force had been used. It did not describe any

force allegedly employed, why it was employed, or by whom. Finally, even if the

principle applied, the record is devoid of evidence that Pittaro was acting at the behest of

the defendants. Compare United States v. Gatto, 995 F.2d 449, 455 (3d Cir. 1993)

(evidence of a third party's threat to testifying witness during trial admissible to show

defendants' consciousness of guilt when there is evidence in the record suggesting a link



                                              8
between the defendants' organization and the third party). Because evidence of Pittaro's

actions in this regard may have unduly confused the issues for the jury, it and was

properly excluded by the district court.

       We will affirm the judgment of the district court.




                                             9
