Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2002

Combs v. Sch Dist Phila
Precedential or Non-Precedential:

Docket 1-2714




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Recommended Citation
"Combs v. Sch Dist Phila" (2002). 2002 Decisions. Paper 208.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/208


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                                                      NOT PRECEDENTIAL
                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                              ___________

                              No. 01-2714
                              ___________


                            CLARENCE COMBS,
                                               Appellant

                                  v.

                SCHOOL DISTRICT OF PHILADELPHIA;
DAVID W. HORNBECK, Superintendent, School District of the City of
Philadelphia;
       YVONNE JONES, Principal of Overbrook High School;
MICHAEL LODISE, President, School Police Association of Philadelphia;
JOSEPH ROBERTS, School District Security Officer, Overbrook High School;
BEVERLY BROWN, School District Non-Teaching Assistant, Overbrook High
School;
           DANTE JOSIE; WILLIAM PORTER; ERIC WALTERS

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                D.C. Civil Action No. 99-cv-03812
                 (Honorable Ronald L. Buckwalter)
                       ___________________

         Submitted Pursuant to Third Circuit LAR 34.1(a)
                          March 4, 2002

           Before:    SCIRICA and ROSENN, Circuit Judges,
                      and WARD, District Judge*



     *The Honorable Robert J. Ward , United States District Judge for the
Southern District
of New York, sitting by designation.

                        (Filed: March 25, 2002)

                          __________________

                          OPINION OF THE COURT
                           __________________

SCIRICA, Circuit Judge.
     This is an appeal of a jury verdict in a 42 U.S.C.   1983 action.
                               I.
     On May 6, 1999, three students at Overbrook High School in
Philadelphia,
Pennsylvania, assaulted Clarence Combs, also a high school student, during
a class
change. Combs filed suit against the School District of Philadelphia,
claiming the school
district willfully and knowingly allowed a state-created danger at the
school. After a five-
day trial, the jury found for defendant. This appeal followed.
                              II.
     The District Court had jurisdiction under 28 U.S.C.   1331. We have
jurisdiction
under 28 U.S.C.   1291.
                              III.
     Combs contends the District Court wrongly admitted his high school
disciplinary
records and testimony concerning his behavior at school. We review for
abuse of
discretion. In re Paoli R.R. Yard PCB Litig., 

, 453 (3d Cir.
1997). The
records and testimony at issue described Combs as violent and rebutted
claims that his
assailants were more confrontational than most Overbrook students.
Additionally,
Combs's disciplinary record demonstrated defendant had not ignored past
infractions.
The District Court's decision that the records and testimony were more
probative than
prejudicial was well within its discretion. Nor do we find the evidence
of Combs's prior
disciplinary problems was presented to prove his character. We see no
error in the
admission of the records.
     Combs also claims statements made by defendant's counsel during
opening and
closing argument were prejudicial. Given Combs's failure to object, we
review for plain
error. United States v. Olano, 

, 732 (1993). The challenged
statements,
which characterized Combs as a "troublemaker," did not "seriously affect[]
the fairness,
integrity or public reputation of judicial proceedings." 

citation
omitted). The statements were supported by evidence at trial. We see no
error.
                              IV.
       The District Court prohibited Combs's purported liability expert,
Dr. Michael
Witkowski, from testifying about the state-created danger theory. Combs
contends the
Court should have held a Daubert hearing. We review for abuse of
discretion. Waldorf
v. Shuta, 

, 627 (3d Cir. 1998) ("[W]e will not substitute our
own judgment
for that of the trial court regarding the admission or exclusion of expert
testimony."). The
District Court found that Witkowski, whose testimony addressed
"commonplace" issues,
had no expertise that would aid the jury. No Daubert hearing was
required. We see no
error.
                               V.
     Combs challenges the preclusion of expert testimony by Francis Friel,
an
employee of the First Class Cities Subcommittee of the Pennsylvania House
of
Representatives investigating violence in Philadelphia public schools, and
its decision to
exclude the Subcommittee Report from evidence. We review for abuse of
discretion.

. The District Court found the material in the
Subcommittee
Report was irrelevant. Furthermore, Combs failed to designate Friel as an
expert "at
least 90 days before the trial date or the date the case is to be ready
for trial." Fed. R. Civ.
P. 26(a)(2)(C). We see no error.
                              VI.
     During the five-day trial, the District Court asked several questions
of witnesses.
Combs alleges these questions demonstrated bias and deprived him of a fair
trial. We
disagree. Fed. R. Evid. 614(b) allows judges to question witnesses.
Having reviewed the
record carefully, and cognizant of the court's responsibility to remain
impartial, we find
no evidence or hint that the District Court assumed the role of advocate
for defendant.
That the answers may have benefitted defendant does not establish
reversible error. We
see no error.
                              VII.
     Combs contends the District Court erred by allowing defendant to
exclude all
African-Americans from the jury pool, violating his constitutional rights.
See Batson v.
Kentucky, 

(1986). At plaintiff's request, the District Court
held a Batson
hearing. Defendant demonstrated race-neutral reasons for excusing the two
remaining
African-Americans from the jury pool. Cf. Purkett v. Elem, 

(1995).
Plaintiff did not rebut defendant's proffer. We see no equal protection
violation.
                             VIII.
     Over Combs's objection, the District Court refused to allow
Philadelphia Police
Officer Victoria Phillips to testify about the number of assaults at
Overbrook High
School, finding such testimony would be an "estimation" or "guess." We
review for
abuse of discretion. In re 

. Officer Phillips said
she had no
recollection of responding to calls from Overbrook while a patrol officer.
While assigned
to "School Beat 2," she was not at Overbrook on a daily basis. Officer
Phillips kept no
record of arrests until after Combs's assault. The District Court was
within its sound
discretion in limiting her testimony.
                              IX.
     Finally, Combs challenges the jury charge, claiming it misstated the
requirements
for proving a state-created danger. Given Combs's failure to object, we
review for plain
error. 

. The charge properly stated all elements
of the theory,
including that plaintiff had to prove the state "create[d] an opportunity
that otherwise
would not have existed for the third party's crime to occur." Kneipp v.
Tedder, 

, 1208 (3d Cir. 1996). That the District Court's charge incorporated
uncontested
evidence   Combs was in the hallway when injured   did not tip the scale
for defendant.
We see no error.
                               X.
     For the foregoing reasons we will affirm the judgment.
TO THE CLERK:

         Please file the foregoing opinion.




                                /s/ Anthony J. Scirica
                                       Circuit Judge