477 F.

2d 1140

John William SMITH, Appellant,

v.
Dominick SPINA, Individually and as Director of the Police
Department of the City of Newark, N. J., et al.
No. 72-1402.

United States Court of Appeals,

Third Circuit.
Argued March 1, 1973.
Decided April 24, 1973.

Morton Stavis, Irvin L. Solondz, Newark, N. J., for appellant.

William G. Scott, Donald L. Berlin, Lieb, Teich & Berlin, East Orange, N.
J., for appellees.
Before MARIS and ALDISERT, Circuit Judges, and GORBEY, District
Judge.
OPINION OF THE COURT
ALDISERT, Circuit Judge.

The question presented is whether appellant was prejudiced by error during the
course of the trial of an action brought by him under the Civil Rights Act, 42
U.S.C. Sec. 1983, against certain police officers and the City of Newark, "for a
brutal assault and battery inflicted upon him by the Newark police officers
DeSimone and Pontrelli, without cause, justification, or provocation." We have
concluded that there was no reversible trial error as to the appellant and will
affirm the judgment of the district court.

Appellant, a black man, was driving a taxicab in the City of Newark on the
evening of July 12, 1967, when he was stopped by police officers DeSimone
and Pontrelli for an alleged traffic offense. Following a verbal exchange, the
policemen took appellant into custody and brought him to the precinct house.
While in custody he sustained injuries. It was the plaintiff's contention that

these injuries were caused by an assault and battery committed upon him by the
police. The police contended that appellant violently resisted arrest, had to be
carried from the police car to the precinct house, and that "while being carried,
plaintiff kicked and wiggled and thrashed about so violently that the officers
carrying him were caused to fall," and that, in turn, the plaintiff also fell and
that the injuries received were due to the fall on the steps of the station house.
3

Before treating appellant's assignments of error, we address the jurisdictional

posture of this appeal. Although federal jurisdiction was based on the general
federal question statute, 28 U.S.C. Sec. 1331, and the civil rights jurisdictional
statute, 28 U.S.C. Sec. 1343, and although the remedy exclusively relied on by
appellant was the Civil Rights Act, 42 U.S.C. Sec. 1983, appellant tried the
case as a civil tort action. Indeed, at oral argument on appeal, in response to
specific questions from the court, appellant's counsel asserted that the theories
of negligence, res ipsa loquitur, and intentional assault and battery, which form
the major bases of this appeal, were properly brought as an integral part of the
Sec. 1983 remedy. It is, of course, fundamental that the Civil Rights Act
permits recovery for only "deprivations of any rights, privileges, or immunities
secured by the [federal] Constitution and [federal] laws." We have recently
said: "It becomes important to delineate that conduct which is actionable in
state courts as a tort, and that which is actionable in federal courts under Sec.
1983. The two rights of action do not always stand in pari materia. Some
common law and statutory torts, although actionable in a state forum, do not
rise to constitutional dimensions. The converse is equally true. Conduct may be
actionable as a deprivation of constitutional rights where no force and violence
has been utilized, and there exists no orthodox counterpart of state common law
or statutory relief available." Howell v. Cataldi, 464 F.2d 272, 278 (3d Cir.
1972).

Thus, we have previously held "that a tort committed by a state official acting
under color of state law is [not], in and of itself, sufficient to show an invasion
of a person's right under the Act [Sec. 1983]." Kent v. Prasse, 385 F.2d 406,
407 (3d Cir. 1967). Similarly, an averment of improper medical treatment was
held insufficient to state a cause of action under the Civil Rights Act,
Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970); Fear v. Commonwealth of
Pennsylvania, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S.Ct. 278,
24 L. Ed.2d 234 (1969); as was an averment of inferior medical treatment
facilities for treatment of an ear infection, Kontos v. Prasse, 444 F.2d 166 (3d
Cir. 1971); as was an averment of being forced to work in prison on a press
which was dangerous and unfit and which had previously been condemned,
Kent v. Prasse, supra, 385 F.2d at 407; as was an averment of professional
malpractice against an attorney, Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir.

1971).
5

We have no hesitancy in concluding, therefore, that appellant's counsel

proceeded under fundamental misapprehensions that Sec. 1983 subsumed these
state tort causes of action. Had the case been presented to the jury in this light
by the trial judge, there would be no necessity to discuss the points raised on
this appeal; we would have simply dismissed the appeal for want of federal
jurisdiction of the tort claims, there being no averment of diversity between the
parties, and there being no actual diversity of citizenship. Without the benefit of
a proper pleading in the complaint, however, the trial court treated the tort
claim as an independent state claim appended to the claim based on federal law
under Sec. 1983. The trial court obviously exercised discretion under
instructions contained in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86
S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), that if the state and federal claims
derive from a common nucleus of operative fact, and if they "are such that he
would ordinarily be expected to try them all in one judicial proceeding, then,
assuming substantiality of the federal issues there is power in federal courts to
hear the whole."

That there is power to hear a pendent state claim does not mean that its
assumption is automatic or that the federal courts should be hospitable to such
claims without proper pleadings. It is hornbook law that the jurisdiction of the
federal court must appear in the plaintiff's statement of his claim. Joy v. City of
St. Louis, 201 U.S. 332, 26 S. Ct. 478, 50 L.Ed. 776 (1906). "It is incumbent
upon the plaintiff properly to allege the jurisdictional facts, according to the
nature of the case. . . . He must allege in his pleadings the facts essential to
show jurisdiction." McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
182, 189, 56 S.Ct. 780, 782, 785, 80 L.Ed. 1135 (1936). See also, F. R.Civ.P.
8(a)(1).

Procedural requirements aside, dictates of fundamental fairness require that a

defendant have the opportunity to interpose any objection to the annexation of a
pendent state claim to a federal question claim. In the case at bar, the
defendants did not object to the unpleaded theory of the plaintiff, the reception
of evidence thereunder, and the court's charge to the jury. Having received a
favorable verdict, defendants do not press this point, and properly so, for they
now have the advantage of res judicata on the state claims.

Our analysis of jurisdiction, although not invited by the parties, is a critical

prerequisite to a consideration of appellant's contentions, for this threshold
determination directs us to the appropriate substantive law in considering
claims of negligence, assault and battery, and res ipsa loquitur. Here again,

appellant's counsel was in basic error when he advised the court, at oral
argument, that federal substantive law, and not state law, would govern these
claims. See Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188
(1938).1
9

Additionally, we observe that appellant did not object to the Sec. 1983 charge
given by the trial court, and does not press any specific points on this aspect of
the charge. The defendants also made no objection and, therefore, the issue is
not before us. We are constrained to observe, nevertheless, that the Sec. 1983
charge would not have withstood an objection by the defendants. Indeed, had
an adverse verdict been returned against the defendants, we are persuaded that
the charge would not have withstood a contention of plain error. Quoting the
Fourteenth Amendment, the court told the jury that it was the theory of the
plaintiff that "these men, acting under the color of the State law, wrongfully
deprived him of his Constitutional Rights by exceeding their authority in using
excessive force in taking him into custody." At no time did the court define
"excessive force" in terms of a constitutional deprivation or a violation of a
right protected by federal law. The court also referred to "unlawful acts" of the
policemen and essentially charged that if the jury found that the policemen
defendants committed "unlawful acts," they would be liable. Here, too, the
court did not describe "unlawful acts" in the context of the Civil Rights Act, but
stated simply that "the unlawful acts must be of such a nature or character and
be permitted under such circumstances that they would not have occurred but
for the fact that the person committing them was an official exercising his
official powers outside the bounds of lawful authority." Such a jury instruction
was overbroad, all-encompassing, and did not relate with specificity to any
deprivation under the federal constitution or federal laws. Thus, under these
instructions, the jury could have found the defendants liable under Sec. 1983 if
they found that the police officers committed some "unlawful" act under the
civil or criminal laws of the state. Recovery under Sec. 1983 is strictly limited
to deprivations under the federal constitution and federal law.2 But, as we have
heretofore observed, this error militated against the defendants only, and, being
the winner of the verdict, they do not complain.

10

Still another pleading error of which appellant was the beneficiary was the
inclusion of the City of Newark as a defendant in the Sec. 1983 action. Even
though Newark consented to this defendant status, a district court does not have
subject matter jurisdiction under Sec. 1983 to entertain a claim against a
municipality. In Monroe v. Pape, 365 U.S. 167, 187, 191, 81 S.Ct. 473, 484,
486, 5 L.Ed.2d 492 (1961), the Court observed "that Congress did not
undertake to bring municipal corporations within the ambit of Sec. 1979. . . .
The response of the Congress to the proposal to make municipalities liable for

certain actions being brought within federal purview by the Act of April 20,
1871, was so antagonistic that we cannot believe that the word 'person' was
used in this particular Act to include them." See also United States ex rel.
Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969).
11

That no objection was lodged by Newark at trial is immaterial. "[T]he District

Court is vested with authority to inquire at any time whether these
[jurisdictional] conditions have been met. They are conditions which must be
met by the party who seeks the exercise of jurisdiction in his favor." McNutt v.
General Motors Acceptance Corp., supra, 298 U.S. at 189, 56 S.Ct. at 789. Nor
does an agreement to submit to jurisdiction control, for just as it is well settled
that the issue of subject matter jurisdiction is always open, so too is it settled
that subject matter jurisdiction cannot be supplied by consent of the parties.
See, e. g., Knee v. Chemical Leaman Tank Lines, Inc., 293 F. Supp. 1094, 1095
(E.D.Pa.1968). There is some authority, however, suggesting that the fact that
the municipality could not have been a defendant under Sec. 1983 would not
preclude it from being a proper defendant under the pendent state claim, so
long as the other factors conferring pendent jurisdiction under the Gibbs test
are present. See Astor-Honor, Inc. v. Grossett & Dunlop, Inc., 441 F.2d 627 (2d
Cir. 1971).3 Here, the court properly charged: "You will recall I stated to you
that this case was brought on two grounds. First, against the officers for a
violation of his Civil Rights, the second against the City of Newark and the
Police Officers, those named and unnamed under the theory of negligence."

12

Appellant urges several assignments of trial error, most of which relate to the
state claims of negligence and intentional tort and, hence, will be governed by
state law. Others relate to the reception of evidence, and will be governed by
the broad provisions of F.R. Civ.P. 43.4

13

Appellant contends that the court erred in excluding evidence that other
Newark police officers from the Fourth Precinct were guilty of brutal police
conduct shortly after the arrest of appellant. This was relevant only on the issue
of the liability of the chief of police, and at least as to the state claim, to the
issue of the city's respondeat superior liability. The basis of the theory is that
Chief Spina knew or should have known of the propensity of his subordinate
officers to abuse blacks and, therefore, was negligent in not promulgating
prophylactic regulations to prevent this. The relevancy of this evidence at best
is highly suspect. After defendant Spina testified, he was dismissed as a party
defendant upon motion of the appellant. With Spina out of the case, the
relevancy is virtually nonexistent. And even if relevant, factors leading to
admissibility could be offset by remoteness, undue prejudice, or confusion of
the issues. The matter was within the discretion of the trial judge and we find

that he did not abuse his discretion when he refused to admit the evidence.
"When the risk of confusion is so great as to upset the balance of advantage, the
evidence goes out." Shepard v. United States, 290 U. S. 96, 104, 54 S.Ct. 22,
26, 78 L.Ed. 196 (1933). See also Rule 403, Proposed Rules of Evidence for
the United States Courts and Magistrates.
14

Next, appellant argues that the trial court erred in permitting the introduction of
evidence of written police reports of appellant's arrest. The records were
introduced after the authors of the reports had testified but before their crossexamination. The court admitted the reports on the theory that they were
business records. Rule 803, Proposed Rules of Evidence, supra, provides:

15 following are not excluded by the hearsay rule, even though the declarant is
The
available as a witness. . . .
16 Public Records and Reports. Records, reports, statements, or data compilations,
(8)
in any form, of public offices or agencies, setting forth (A) the activities of the office
or agency, or (B) matters observed pursuant to duty imposed by law, or (C) in civil
cases and against the government in criminal cases, factual findings resulting from
an investigation made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of trustworthiness.
17

The Federal Public Records Act, 28 U.S.C. Sec. 1733, by its terms is not
applicable to non-federal public agencies. Thus, resort must be made to the
common law business record exception to the hearsay rule. Kay v. United
States, 255 F.2d 476 (4th Cir. 1958). As stated in the Advisory Committee's
note to Section 803: "Public records are a recognized hearsay exception at
common law and have been the subject of statutes without number.
McCormick, Sec. 291. . . . Justification for the exception is the assumption that
a public officer will perform his duty properly and the unlikelihood that he will
remember details independently of the record. Wong Wing Foo v. McGrath,
196 F.2d 120 (9th Cir. 1952)." Accordingly, under federal practice, it was not
error to admit the police record.

18

Appellant further assigns as error the refusal to apply the law of res ipsa
loquitur to the testimony adduced at trial. It is the theory of the appellant, "that
he had been in perfectly good health before he was taken into police custody,
that he had been badly beaten while in such custody, and that the police
testimony did not provide reasonable explanation of the cause or causes of all
of plaintiff's multiple injuries." Consideration of this charge is limited to the
pendent state claim and, therefore, would be controlled by the substantive law
of New Jersey. Erie v. Tompkins, supra. Defendants argue that under New

Jersey law for the res ipsa doctrine to apply, there must be indications that the
injury could not have resulted from plaintiff's own conduct. Bornstein v.
Metropolitan Bottling Co., 26 N.J. 263, 139 A.2d 404 (1958). Because
defendants claimed that it was the plaintiff's violent kicking and thrashing
which caused his fall on the steps of the station house, we are persuaded,
therefore, that the doctrine would not apply. Moreover, in Cleary v. Camden,
118 N. J.L. 215, 192 A. 29, 32, affirmed, 119 N.J.L. 387, 196 A. 455 (1937),
the court declared:
19 course, where all the facts and circumstances under which an accident occurs are
Of
disclosed by the proofs, and the question is whether, under the proofs as submitted,
the conduct of the defendant is negligent, there is nothing left to inference, and the
doctrine of res ipsa loquitur has no application.
20

See also Kahalili v. Rosecliff Realty, 26 N.J. 595, 141 A.2d 301 (1958).

21

The trial court charged the jury that the City of Newark could not be held liable
for an intentional tort of its agents or servants. As we have heretofore observed,
the liability of the city was properly an issue only on the pendent state claims
and not under the Sec. 1983 action; accordingly, New Jersey law will apply. It
is apparent that this instruction contravened the rationale of McAndrew v.
Mularchuk, 38 N.J. 156, 183 A.2d 74 (1962). It would appear under the
doctrine of respondeat superior the City of Newark would be held liable for the
actions of Officers DeSimone and Pontrelli, even if intentional. We have
concluded, however, that this was harmless error. The finding of the jury
exonerated DeSimone and Pontrelli of liability under any theory. Because the
City of Newark could have been liable only on a theory of respondeat superior,
the liability of its servant was a necessary prerequisite to the liability of the
master.

22

Finally, appellant argues: "The lower court erred in permitting testimony as to

the plaintiff's prior conviction in the state court-a conviction since set aside by
this court-particularly when the pendency of the appeal to this court was called
to the attention of the trial judge." Prior to the reception of this evidence
appellant made a timely motion to exclude evidence that he had been convicted
of a state charge of assault and battery upon one of the policemen defendants
arising out of this same occurrence. He argued then, as he does now, that
although this conviction was affirmed by the New Jersey appellate courts, State
v. Smith, 102 N.J.Super. 325, 246 A.2d 35 (1968); 55 N.J. 476, 262 A.2d 868,
cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970), he
subsequently filed a petition for a writ of habeas corpus in the federal district
court, which, although denied by the district court, was the subject of an appeal

in this court at that time. The trial court rejected his contention. As a matter of
trial strategy, appellant put his own criminal record in evidence. Later, this
court reversed the judgment of the federal habeas court and ordered that a writ
issue on the basis of an improper jury selection. Smith v. Yeager, 465 F. 2d 272
(3d Cir. 1972).
23

We find no merit in appellant's contention. Although this court has ordered that
a writ of habeas corpus issue, such action is not the equivalent of a reversal of a
state conviction. Only the Supreme Court has power, on direct appeal, to
reverse a state judgment of conviction. Federal habeas corpus jurisdiction is
based on detention simpliciter. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9
L.Ed.2d 837 (1963). The jurisprudential effect of the granting of a federal writ
is to release relator from custody. It does not have the force and effect of
voiding a conviction. Moreover, at the time the evidence was introduced at
trial, no court had granted the writ of habeas corpus.

24

Buttressing our conclusion is the philosophy of proposed Rule 609(c), supra,

stating that evidence of a conviction is not admissible under this rule if ". . . the
conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on innocence." Since the action of this court in reversing the
denial of the writ was not based on the appellant's innocence, it is extremely
doubtful that even if the writ had been granted at the time of the trial whether
the evidence of the conviction would have been excluded on the specific theory
posed by appellant.

25

Moreover, it appears to be the general rule that it is permissible to attack the

credibility of a witness by showing a previous criminal conviction even though
an appeal therefrom or a motion for a new trial is pending. United States v.
Owens, 271 F.2d 425 (2d Cir. 1959), cert. denied, 365 U.S. 874, 81 S.Ct. 910, 5
L.Ed.2d 863 (1961); Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert.
denied, 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 (1956).

26

We have carefully considered the other contentions of the appellant and find
them to be without merit.

27

The judgment of the district court will be affirmed.

Properly styled, appellant's Sec. 1983 claim would track two theories: (1) A
Fourteenth Amendment deprivation in that without due process of law the
police punished him for his alleged traffic violation by administering a physical

beating upon him instead of submitting him to trial by jury to determine his
guilt or innocence and, if guilty, to be exposed to fine or imprisonment as
provided by law. See United States v. Delerme, 457 F.2d 156, 161 (3d Cir.
1972). (2) An Eighth Amendment deprivation in that the police inflicted cruel
and unusual punishment
2

"Although, as originally drafted in 1871, Sec. 1983's predecessor protected

rights, privileges, or immunities secured by the Constitution, the provision
included by the Congress in the Revised Statutes of 1874 was enlarged to
provide protection for rights, privileges, or immunities secured by federal law
as well." Mitchum v. Foster, 407 U.S. 225, 240 n. 30, 92 S.Ct. 2151, 2161, 32
L.Ed.2d 705 (1972)

See also Moor v. County of Alameda, 458 F.2d 1217 (9th Cir.), cert. granted,
409 U.S. 841, 93 S.Ct. 66, 34 L.Ed.2d 80 (1972), where the issue argued before
the Supreme Court was whether a federal court has power to exercise
jurisdiction over a party on a pendent state claim when the party is not involved
in the related federal claim

Rule 43(a) reads:

In all trials the testimony of witnesses shall be taken orally in open court, unless
otherwise provided by these rules. All evidence shall be admitted which is
admissible under the statutes of the United States, or under the rules of
evidence heretofore applied in the courts of the United States on the hearing of
suits in equity, or under the rules of evidence applied in the courts of general
jurisdiction of the state in which the United States court is held. In any case, the
statute or rule which favors the reception of the evidence governs and the
evidence shall be presented according to the most convenient method
prescribed in any of the statutes or rules to which reference is herein made. The
competency of a witness to testify shall be determined in like manner.