Fanor v. Alvarado

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2907
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EVANS FANOR,
Appellant
v.
OFFICER CARLOS ALVARADO, individually and in his capacity as an officer with the
Newark Police Department; NEWARK POLICE DEPARTMENT; CITY OF NEWARK
___________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil No. 05-cv-05536)
District Judge: Honorable Peter G. Sheridan
______________________________
Submitted Pursuant to Third Circuit LAR 34.1
August 13, 2010
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed: September 13, 2010)
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OPINION
_________
PER CURIAM
Evans Fanor, proceeding pro se, appeals a judgment of the United States District
Court for the District of New Jersey in favor of Officer Carlos Alvarado, the City of
Newark, New Jersey, and the Newark Police Department in his civil rights action. We
will affirm.
Fanor was employed as a patient advocate in a hospital emergency room. In
March 2004, a nurse asked Officer Alvarado, who brought prisoner-patients to the
hospital, to move away while she treated a patient. Officer Alvarado would not do so and
his superior was contacted. According to Fanor, Officer Alvarado became belligerent.
Fanor claimed that, after this incident, Officer Alvarado belittled him when he brought
prisoners to the hospital. Officer Alvarado denies harassing Fanor.
On May 8, 2004, Fanor told Officer Alvarado, who was talking on his cell phone,
to get off of his phone because Fanor believed that cell phones were prohibited in the area
where Officer Alvarado was talking. The parties dispute what happened next. Fanor
alleged that Officer Alvarado poked him, grabbed him and pinched his skin, and twisted
his arm in order to handcuff him. Officer Alvarado stated that Fanor approached him in a
hostile, threatening manner and would not stop yelling after he warned Fanor to stop.
Officer Alvarado arrested Fanor on charges of terroristic threats, obstruction of
administration of the law, resisting arrest, and disorderly conduct. The disorderly conduct
charge was dismissed in municipal court. Fanor was not indicted on the other charges.
Fanor filed a pro se complaint against Officer Alvarado pursuant to 42 U.S.C.
§ 1983, raising claims of false arrest, false imprisonment, malicious prosecution, and use
of excessive force. He also claimed that the City of Newark and the Newark Police
Department had a policy or custom of supporting any action taken by its officers, that the
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City and Police Department had knowledge of prior similar incidents involving Officer
Alvarado, and that the City and Police Department failed to train, discipline, or control its
personnel.
The District Court granted summary judgment in favor of Officer Alvarado on
Fanor’s excessive force claim, explaining that the pokes and pinch Fanor allegedly
suffered did not constitute excessive force. The District Court also ruled that the City of
Newark and the Newark Police Department were entitled to summary judgment on
Fanor’s municipal liability claims. The District Court explained that Fanor had not
identified a policy of deliberate indifference to constitutional rights and that the evidence
established that complaints against police officers for excessive force are investigated.
The District Court further found that whether Officer Alvarado had probable cause to
arrest Fanor was a question for the jury. Fanor’s remaining claims proceeded to trial and
the jury returned a verdict in favor of Officer Alvarado. This appeal followed.1
Although Fanor has not included in his brief a statement of issues for our review,
he primarily argues that the District Court improperly excluded evidence at trial. The
District Court granted Officer Alvarado’s motions in limine to exclude certain evidence
and we review these rulings for abuse of discretion. Forrest v. Beloit Corp., 424 F.3d
1Fanor also filed a motion for a mistrial, which the District Court construed as motion
for relief from the judgment. The District Court rejected Fanor’s argument that a new
trial was warranted because he mentioned a settlement offer in his closing statement.
Fanor has not appealed the District Court’s post-judgment order or raised an issue as to
his closing statement in his brief. Thus, we will not consider this question.
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344, 349 (3d Cir. 2005).
Fanor contends that Officer Alvarado’s Internal Affairs file, which purportedly
contained evidence showing his prior use of excessive force, was improperly excluded at
trial. The use of excessive force, however, was not at issue at trial as the District Court
granted summary judgment in favor of Officer Alvarado on this claim. Fanor also does
not dispute the District Court’s finding that Officer Alvarado was exonerated in the
alleged prior incidents. Because the Internal Affairs file was not relevant to the issues
before the jury, the District Court did not abuse its discretion in granting Officer
Alvarado’s motion to exclude this evidence.
Fanor also argues that his expert medical reports, expert medical witnesses, and
evidence of his injuries were excluded at trial and that the jury was unable to get a clear
picture of his injuries resulting from his encounter with Officer Alvarado. As noted
above, Fanor’s excessive force claim was not before the jury at trial. Moreover, the
medical records Fanor submitted pertain to treatment he received in 2006 and 2007, two
years after the incident at issue. The records excluded by the District Court do not state
that Fanor’s medical issues are related to the incident with Officer Alvarado. Fanor has
not shown that the District Court abused its discretion in granting Officer Alvarado’s
motion to exclude this evidence.
Fanor further contends that statements by Nurse Robert Roshetar, Security Officer
Ellis Haynes, and hospital employee Maria Romero, which conflicted with their trial
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testimony, were improperly excluded at trial and that, as a result, he was precluded from
effectively cross-examining these witnesses. This argument lacks merit. The District
Court’s order granting Officer Alvarado’s motion in limine provides that the statements
of these witnesses would not be admitted into evidence “but may be used to refresh a
witnesses [sic] recollection or to impeach credibility.” 5/20/08 Order at 2. Thus, Fanor
was not precluded from cross-examining these witnesses with their prior statements.
Similarly, Fanor argues that the police report of Officer Lijo was improperly
excluded at trial. He states that Officer Lijo testified that he did not hear Fanor threaten
Officer Alvarado, but his police report states otherwise. Officer Lijo’s report is not
encompassed by the District Court’s order granting Officer Alvarado’s motion in limine
and Fanor has not cited to the portion of the record excluding the report. To the extent
the report was excluded, Fanor has not shown that he was precluded from impeaching
Officer Lijo’s credibility with the report. It is also unclear why Fanor complains about
the exclusion of this evidence, which would appear to have been detrimental to his case.2
Fanor also contends that several improprieties occurred at trial. First, Fanor states
that Officer Alvarado and his attorney improperly conferred with his witnesses, Officer
2
Fanor has filed a motion to expand the record to include Officer Lijo’s report. Fanor
asserts in his brief that the District Court Clerk’s Office failed to file the report. Fanor’s
assertion is unsupported and this motion is denied. Fanor’s motion to expand the record
to include a report by Officer Ellis Haynes is also denied. See In re Capital Cities/ABC,
Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990)
(noting court cannot consider material on appeal that is outside district court record).
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Ellis Haynes and Nurse Roshetar, before they testified. The record reflects that on the
second day of trial, Fanor called to the court’s attention that Officer Alvarado was
speaking with witnesses before they came into the courtroom. 6/4/08 Trans. at 3-4. The
District Court told Fanor that he could cross-examine Officer Alvarado on that point, but
Fanor apparently chose not to do so. Fanor has not explained how he was prejudiced nor
has he shown that the District Court abused its discretion.
Fanor further states that he was precluded from providing his witness, Charles
Cohen, a copy of his statement or his deposition transcript before he testified. The record
does not reflect that Fanor was precluded from doing so. In addition, to the extent Fanor
complains that he was not permitted to provide Cohen his statement when he testified, the
District Court stated in its order granting Officer Alvarado’s motion in limine that
Cohen’s statement could be used to refresh his recollection or to impeach his credibility.
See 5/20/08 Order at 2.
Fanor also asserts that, while one of his witnesses was testifying, Officer Lijo
entered the courtroom, conferred with Officer Alvarado’s attorney, and then sat for a
period of time in the courtroom. Fanor states that Officer Lijo left the courtroom when he
was about to bring the matter to the court’s attention. To the extent Fanor has not waived
this claim by failing to raise it in District Court, the record reflects that the District Court
granted Fanor’s request to sequester the witnesses. Fanor, however, has not shown that
he was prejudiced by Officer’s Lijo’s alleged presence in the courtroom or that he is
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entitled to relief on this basis.
Fanor also does not appear to have raised in District Court his argument in his
brief that the District Court improperly changed the order of his witnesses and confused
the jury. Rather, Fanor appears to have agreed that the defense could present its
witnesses before he presented Officer Alvarado so that the witnesses would not have to
be there longer than necessary. 6/4/08 Trans. at 39. The record also reflects that Fanor
presented all of his witnesses before the defense presented its case and, to the extent the
witnesses were not in the order Fanor intended, the District Court explained to the jury
the reason for the change in order.
Fanor also claims that the District Judge was frustrated by Fanor’s mistakes in
questioning witnesses and that the jury may have been negatively influenced. Fanor has
not cited any portions of the transcript reflecting such frustration. He has not shown any
error on the part of the District Court.
Finally, Fanor argues that summary judgment was improperly entered for the
Newark Police Department in light of the evidence of reports of excessive force by
Officer Alvarado. We disagree. Fanor did not produce evidence showing that the alleged
deprivation of his constitutional rights was the result of a policy or custom of the Newark
Police Department. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). To the
contrary, as noted by the District Court, the Internal Affairs documents show that
complaints of misconduct are investigated.
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Fanor’s remaining claims of error are without merit and do not warrant discussion.
Accordingly, we will affirm the judgment of the District Court.3
3
Fanor’s motion to file a reply brief exceeding the permitted page limit is denied as his
reply brief is in large part a reproduction of his opening brief.
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