George Manolovich, III v. Bethel Park , 461 F. App'x 187 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4476
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GEORGE M. MANOLOVICH, III,
Appellant
v.
BETHEL PARK AND ERIC M. ANIBALDI
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 08-cv-01746)
District Judge: Hon. Terrence F. McVerry
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 6, 2012
Before: SLOVITER, VANASKIE, and GARTH, Circuit Judges.
(Filed: February 10, 2012)
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OPINION
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GARTH, Circuit Judge.
Appellant George Manolovich, III appeals from the District Court‟s order granting
summary judgment in favor of the defendants, Bethel Park and Eric M. Anibaldi on
Manolovich‟s claims pursuant to 42 U.S.C. § 1983. At all times relevant to this appeal,
Anibaldi has been an employee of the Bethel Park Police Department. On appeal,
Manolovich claims that a genuine issue of material fact existed as to whether Manolovich
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could establish his claims under 42 U.S.C. § 1983 and Pennsylvania state law. For the
reasons that follow, we will affirm the District Court‟s grant of summary judgment to
Bethel Park and Eric M. Anibaldi.
I.
We write principally for the benefit of the parties and recite only the facts essential
to our disposition.
In December 2006, Manolovich, who is divorced, began a relationship with Janet
Martin, who is bound to a wheelchair. Martin‟s sisters became concerned when Martin
chose to move in with Manolovich, and her sister Nancy Nix asked Manolovich to
provide certain pieces of personal information, including his date of birth, social security
number, and information about his divorce. With this information, Nix approached
Anibaldi and asked whether he would run a background check on Manolovich. Anibaldi
evidently declined to do so and suggested that Nix hire a private investigator. Thereafter,
Nix contacted Michael Haberman, a private investigator, provided him with
Manolovich‟s identifying information, and asked him to gather whatever information he
could on Manolovich.
Haberman contacted Nix with information about Manolovich, including
information about lawsuits against him, prior arrests, and a protective order filed against
him by his ex-wife. According to Haberman and Nix, Haberman did not provide any
documentation to Nix along with that information. On the basis of this information,
Martin‟s sisters conducted their own independent investigation of Manolovich, and on the
basis of all of the information they had acquired, they chose to confront Martin about her
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relationship with Manolovich. That confrontation took place on December 27, 2006, in
the apartment Manolovich and Martin shared while Manolovich was present.
According to Manolovich, during the course of their conversation, Martin‟s sisters
had several papers, from which they read details of his divorce, details of the protective
order against him, details of at least one civil suit in which he was involved, and,
according to Manolovich, details of a March 2005 incident which had resulted in an
involuntary commitment proceeding.1 Anibaldi was not involved in the March 2005
incident. According to Manolovich, one of Martin‟s sisters told him that Anibaldi had
provided them with the papers. One of Martin‟s sisters also told Martin that Nix had
received the information about Manolovich from Anibaldi.2
Details of the March 2005 incident were contained in a Police Incident Report to
which Anibaldi had access. Any such access is logged by software, and those logs can be
reviewed by the Chief of Police. Pursuant to a discovery request, Bethel‟s Chief of
Police examined the logs and determined that on December 1, 2005 Anibaldi had
accessed the Police Incident Report pertaining to the March 2005 incident. The search
indicated that Anibaldi did not print the report and that he had not accessed it again. The
Chief of Police also determined that Manolovich‟s record in Pennsylvania‟s central
1
Manolovich has been involved in three involuntary commitment proceedings: one
related to the incident which led to the protective order against him, one related to an
incident of which Martin‟s sisters learned about during their independent investigation,
and a third related to the March 2005 incident. According to the deposition testimony of
Martin‟s sisters, they never mentioned anything related to the March 2005 incident to
Martin, but did discuss at least one of the other two incidents.
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In her deposition, Martin‟s sister testified that she made this statement based on Nix
telling her that Anibaldi was the source of her information.
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database was not accessed at any time after December 30, 2005. The Computer
Administrator of the Bethel Police Department testified during his deposition that no
member of the Bethel Police Department, including Anibaldi, had accessed any of
Manolovich‟s records during December 2006.
Manolovich filed a 42 U.S.C. § 1983 action, with pendent state law claims, against
Bethel Park, the Bethel Park Police Department, and various officials of both the
municipality and the Police Department, including Anibaldi. The basis of Manolovich‟s
complaint was an allegation that Anibaldi had accessed the Police Incident Report
pertaining to the March 2005 incident and disseminated it to Martin‟s sisters. The
defendants filed a motion to dismiss, which the District Court granted in part and denied
in part, denying the motion with regard to Manolovich‟s Fourth Amendment
unreasonable search and seizure claim as well as pendent state claims of reckless
misconduct, negligence, and gross negligence against Anibaldi and with regard to
Manolovich‟s claim against Bethel Park for failure to properly train its employees. After
discovery, Anibaldi and Bethel Park filed a motion for summary judgment. On October
28, 2010, the District Court granted that motion on Manolovich‟s federal claims. The
District Court declined to exercise supplemental jurisdiction over the remaining state
claims, and dismissed them without prejudice. Manolovich timely appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review
over a district court‟s summary judgment ruling.” Melrose, Inc. v. City of Pittsburgh,
613 F.3d 380, 387 (3d Cir. 2010). “[W]e apply the same standard as the District Court:
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Summary judgment is appropriate only where, drawing all reasonable inferences in favor
of the nonmoving party, „there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.‟” Lexington Ins.Co. v. Western
Pennsylvania Hosp., 423 F.3d 318, 322 n.2 (3d Cir. 2005) (quoting Fed.R.Civ.P. 56(c)).
III.
On appeal, Manolovich now claims that the District Court erroneously granted the
defendants‟ motion for summary judgment because a genuine issue of material fact
existed as to whether the defendants conducted an illegal search and seizure in violation
of Manolovich‟s rights under the United State Constitution.
To make out a prima facie case under 42 U.S.C. § 1983, a plaintiff must
demonstrate that a person acting under color of state law deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the United States. Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000). As previously stated, Anibaldi was employed
by the Bethel Park Police Department at all times relevant to this appeal; the only matter
in dispute is therefore whether he deprived Manolovich of a right, privilege, or immunity
secured by the Constitution or laws of the United States. Manolovich specifically
contends that by accessing the Police Incident Report pertaining to the March 2005
incident and disseminating it to Martin‟s sisters, Anibaldi undertook an unreasonable
search and seizure in violation of the Fourth Amendment.
Manolovich has provided no affirmative evidence that Anibaldi improperly
accessed and disseminated the Police Incident Report in question. There is deposition
testimony indicating that during the confrontation between Martin and her sisters,
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statements may have been made indicating that Anibaldi provided information to
Martin‟s sisters. This uncorroborated testimony is the only evidence offered by
Manolovich that even suggests Anibaldi provided any information to Martin‟s sisters.
Even assuming that the testimony about the statements was true, and that the statements
themselves were accurate, this fails to establish that Manolovich ever provided Martin‟s
sisters with the Police Incident Report related to the March 2005 incident.
The database records and testimony of the Bethel Police Department Computer
Administrator regarding those records clearly establish that neither Anibaldi nor any
other member of the Bethel Police Department accessed the Police Incident Report in
question at any time relevant to this appeal. In an effort to rebut these records,
Manolovich offered a letter from Alex Alvater, who Manolovich claims to be an expert
witness. In that letter, Alvater states that systems like those in use by the Bethel Police
Department can be tampered with so as to conceal records of access.
Alvater‟s letter fails to meet any of the requirements for an expert disclosure under
F.R.C.P. 26(a)(2)(b). To wit, the letter does not contain: 1) a complete statement of
Alvater‟s opinion or of the basis for that opinion; 2) the data or information he considered
in reaching his opinion; 3) any exhibits supporting or explaining the opinion; 4) Alvater‟s
qualifications; 5) Alvater‟s prior certifications as an expert witness; or 6) any statement
regarding compensation for Alvater‟s involvement in the case. In short, Manolovich‟s
opposition to the records indicating that Anibaldi did not access the Police Incident
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Report amounts to a vague implication of computer hacking unsupported by expert
opinion.3
Furthermore, the only evidence to suggest that the contents of the specific Police
Incident Report in question were ever discussed during the confrontation comes from
Manolovich‟s testimony. That testimony is directly contradicted by the testimony of
Martin‟s sisters regarding the content of their discussion with Martin. As the District
Court found, “there is a significant gap between the information that Manolovich testified
that the Sisters relayed to [Martin] and the information contained in the actual March
2005 Police Incident Report. The „facts‟ that Manolovich testified to are not contained
with the Police Incident Report.” “When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for the purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
We therefore conclude that no genuine issue of material fact exists as to whether
Anibaldi did in fact access and disseminate the report in question. He did not. That
alleged access and dissemination formed the entire factual basis for Manolovich‟s
3
Manolovich also argues that the District Court improperly relied on the reports
produced concerning access to computerized information, claiming that because the
reports were generated for the purpose of this lawsuit, they do not fall within the business
records exception of F.R.E. 803(6) and are therefore inadmissible hearsay. As several
other Circuits have held, the business records exception applies to the data contained in a
given document or printout, not to the printout itself. See, e.g., United States v. Fujii, 301
F.3d 535, 539 (7th Cir.2002); United States v. Sanders, 749 F.2d 195, 198 (5th Cir. 1984).
There is no question that the data contained in the access reports is regularly maintained,
and we are therefore persuaded that the reports are admissible under the business records
exception.
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complaint, and in the absence of any genuine issue of material fact as to whether Anibaldi
improperly accessed and disseminated the Police Incident Report, the District Court
properly determined that the defendants were entitled to judgment as a matter of law. We
also conclude that since Anibaldi was entitled to judgment as a matter of law on
Manolovich‟s federal claims, Bethel Park was entitled to judgment as a matter of law.
See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (municipal liability under 42
U.S.C. § 1983 depends upon an underlying constitutional violation committed by an
individual agent of the municipality).
IV.
Because we conclude that Manolovich‟s allegations do not raise any genuine issue
of material fact, we will affirm the District Court‟s October 28, 2010 order granting
summary judgment in favor of the defendants and dismissing without prejudice his
remaining pendent state law claims against Anibaldi.
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