Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-14-2006
Rodriguez v. West New York
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2745
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Recommended Citation
"Rodriguez v. West New York" (2006). 2006 Decisions. Paper 595.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2745
CALIXTO RODRIGUEZ,
Appellant
v.
TOWN OF WEST NEW YORK;
ALBIO SIRES; SAL VEGA; DONALD HELLER
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 02-cv-04046)
District Court Judge: Honorable Dennis M. Cavanaugh
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
June 30, 2006
Before: BARRY, VAN ANTWERPEN and JOHN R. GIBSON,* Circuit Judges.
(Filed August 14, 2006)
OPINION OF THE COURT
*
The Honorable John R. Gibson, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit.
JOHN R. GIBSON, Circuit Judge.
After being arrested and charged with driving while intoxicated, Calixto Rodriguez
brought an action under 42 U.S.C. § 1983 against the Town of West New York, Mayor
Albio Sires, Director of Public Safety Sal Vega, and Police Officer Donald Heller raising
claims of unreasonable search and seizure, malicious prosecution, and excessive use of
force. On appeal, Rodriguez contends that the district court erred in granting summary
judgment to Sires and Vega and challenges evidentiary rulings and comments made by
the district judge at Rodriguez's trial against Heller. We affirm.
In the early morning hours of August 20, 2000, Rodriguez was pulled over by
Officer Heller while he was driving home from Las Palmas Restaurant in West New
York, New Jersey. At trial, Heller and Rodriguez offered different accounts of the stop.
Heller testified that he received a radio report that a person driving a Ford Expedition was
possibly intoxicated, and so he stopped an Expedition that he observed swerving over the
double yellow lines. Heller stated that Rodriguez smelled of alcohol, refused to get out of
his car or perform a field sobriety test, and, after being pulled out of his car by Heller and
another officer, "Mr. Rodriguez wouldn't stand, he just let his legs go limp," so they
handcuffed him. In contrast, Rodriguez testified that he had only two drinks several
hours earlier and had not committed any traffic violations. Rodriguez stated that while he
was reaching for his insurance card after being pulled over, Heller threw him out of the
car onto the ground and handcuffed him. The officers took him to the police station and
held him overnight after he allegedly refused to take a breathalyzer test. The DWI
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charges were subsequently dismissed because the police department failed to comply with
a court order to produce Heller's personnel file and the tape of the radio transmission he
received that night.
Rodriguez claims that Sires and Vega should be liable for Heller's actions because
they were deliberately indifferent to a "code of silence" in the police department which
permitted police officers to act unconstitutionally. However, the district court correctly
dismissed Sires and Vega from this action. Leaving aside the question of qualified
immunity, in order to be liable under § 1983 as supervisors, individual city officials must
have "personal involvement in the alleged wrongdoing; liability cannot be predicated
solely on the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d
Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). A civil
rights plaintiff must identify specific acts or omissions of the supervisor that evidence
deliberate indifference and persuade the court that there is a "relationship between the
'identified deficiency' and the 'ultimate injury.'" Brown v. Muhlenberg Township, 269
F.3d 205, 216 (3d Cir. 2001) (quoting Sample v. Diecks, 885 F.3d 1099, 1118 (3d Cir.
1989)). Rodriguez did not present any evidence that Sires or Vega were involved in the
alleged constitutional violations arising from the traffic stop or that they were aware of
any previous cases of excessive use of force or malicious prosecution and acquiesced in
such conduct. See Evancho, 423 F.3d at 353. As Rodriguez did not create a genuine
issue of material fact about supervisory liability, Sires and Vega were entitled to summary
judgment.
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We are also convinced that the district court did not abuse its discretion in denying
Rodriguez's request for a new trial.
Rodriguez first argues that the district court made prejudicial comments during
summation. In closing, Rodriguez's counsel argued that the tape of the radio
communication received by Officer Heller was intentionally destroyed in order to cover
up the fact that Heller never had probable cause for the stop. The judge sustained an
objection by defense counsel, stating "There's no testimony of any of that . . . . The
testimony was that Officer Heller had nothing to do with the tapes. And there's no
testimony of coverup or any such thing in this case." A federal judge is permitted to
comment on the evidence so long as the comments do not confuse or mislead the jury or
become so one-sided as to amount to advocacy. Am. Home Assurance Co. v. Sunshine
Supermarket, Inc., 753 F.2d 321, 327 (3d Cir. 1985). No such circumstances exist here,
especially since Rodriguez did not produce any evidence suggesting that Heller attempted
to cover up his misconduct by asking the police department to destroy the tape.
Rodriguez also argues that the district court erred in refusing to allow the lay
opinion testimony of three former police officers and two physicians. The district court
excluded the testimony on the ground that Rodriguez was required but had failed to
provide Officer Heller with the appropriate expert witness disclosures pursuant to Fed. R.
Civ. P. 26(a)(2). We review this decision under an abuse of discretion standard, although
our review of the district court's legal interpretation of the Federal Rules of Evidence is
plenary. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382-83 (3d Cir. 2002).
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The district court did not abuse its discretion in excluding the officers' testimony as
outside the scope of a lay opinion. See Fed. R. Evid. 701(c) (lay witnesses may not testify
based on "specialized knowledge within the scope of Rule 702"). Rodriguez states that
the three former officers would have testified that the West New York police department
fostered a "police culture where police officers routinely act in concert to discredit
victims of police misconduct by committing perjury, filing false police reports and
initiating baseless criminal prosecutions." However, the three officers left the police
force some five to seven years before the traffic stop occurred. Thus, their testimony
would not be based on personal observations about the facts of the case, but rather their
specialized knowledge of customs and practices at the police department. See United
States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006) (per curiam); United States v.
Garcia, 413 F.3d 201, 215-16 (2d Cir. 2005).
Nor did the district court err in concluding that the testimony offered by the two
physicians fell outside the scope of Rule 701. Rodriguez contends that one of the doctors
would have testified that Rodriguez had visited his office in March 2002 complaining of
shoulder pain and that the other doctor would explain how Rodriguez's diagnosis of
diabetes affected his ability to drink alcohol. The district court did not abuse its
discretion in concluding that a doctor seen almost two years after the traffic stop and
several months before filing the complaint was retained in anticipation of litigation and
was therefore required to file an expert report. See Fed. R. Civ. P. 26(a)(2)(B).
Furthermore, the other physician was not a direct participant in the events at issue nor was
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he going to testify about his consultation and treatment of Rodriguez. Cf. Gomez v.
Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir. 2003). Rather, he would offer opinion
testimony about the effect of diabetes on a patient's ability to drink alcohol, and the
district court correctly determined that this would amount to an expert opinion based on
specialized knowledge. See Collins v. Prudential Inv. & Ret. Servs., 119 Fed. Appx. 371,
379-80 (3d Cir. 2005).
We affirm the judgment of the district court.
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