Leonard and Paula Nawrocki v. Township of Coolbaugh, et al.

Paula Nawrocki and her husband (the Nawrockis) filed a multi-count complaint

making various claims, including malicious prosecution, defamation, loss of consortium,

and due process violations against the Township of Coolbaugh, its police department,

and the Police Chief, the Pocono Mountain School District, two of the School District

officials and one teacher. The District Court granted summary judgment against the

Nawrockis on some of their claims, granted judgment as a matter of law on others, and

let their defamation claim go to the jury which found for the defendant. The Nawrockis

now appeal, challenging various evidentiary and procedural rulings of the District Court.

I. Background

In the summer of 1993, administrators in the Pocono Mountain School District

received the first of over forty bizarre and threatening letters, pictures, and objects, many

sexual and pornographic in nature, directed at Jo Anne Chambers, a teacher at the

Coolbaugh Learning Center (CLC). By the spring of 1994, various school teachers and

administrators came to suspect that Paula Nawrocki, another teacher at CLC, was

responsible for the letters. On April 19, 1994, Chambers, Thomas Kopetskie, the

principal of CLC, and another school official met with Anthony Fluegel, Chief of the

Coolbaugh Police Department, to advise him of the letters and other events surrounding
the alleged harassment and stalking of Chambers.

As part of the investigation of these events, the School District arranged for a

polygraph test on Nawrocki, Chambers, and some other teachers. The polygraph

examiner concluded that Nawrocki was responsible for the harassing letters.

In November 1994, Chambers told Fluegel that Nawrocki had tried to force her

off an interstate highway. Fluegel thereafter prepared a criminal complaint, which was

approved by the District Attorney. Fluegel then arrested Nawrocki and charged her with

reckless endangerment, harassment, stalking, assault and terroristic threats. A state

district justice held a preliminary hearing on the charges against Nawrocki and bound the

charges over for trial.

During discovery in the criminal case against Nawrocki, Nawrocki’s defense

counsel discovered that Chambers’ DNA had been found on a stamp from one of the

original harassing letters. Nawrocki’s defense counsel revealed this evidence to the

District Attorney at a pre-trial meeting at which Fluegel was present. Fluegel then

questioned Chambers, who told him that during a meeting in the summer of 1994 with

Fluegel and an Assistant District Attorney, when the two others were out of the room,

she had handled and opened the envelope in question and one of the stamps fell off. She

claimed that she licked the back of the stamp in an attempt to reattach it but when this

failed, she used some glue to reattach the stamp. A chemical analysis of the back of the

stamp, done after Chambers allegedly tried to reattach the stamp, did not reveal the

presence of any glue.

In January 1996, Nawrocki was acquitted of the criminal charges against her. At

trial, her defense theories were (1) that Chambers was in effect stalking and harassing

herself and had fabricated the evidence against Nawrocki and (2) that Fluegel

intentionally did not investigate the possibility that Chambers was harassing herself.

Following her criminal trial and after the School District held a public hearing on the

matter, Nawrocki was reinstated as a school teacher on March 25, 1997.

In early 1998, Nawrocki and her husband filed a seventeen-count complaint in

Pennsylvania state court against Fluegel, Chambers, Kopetskie, David Krauser (the

Superintendent of the School District), the School District, the Township and the Police

Department. Defendants removed the case to federal court pursuant to 28 U.S.C.  1446.

On July 31, 1998 and then again on July 17, 2000, the District Court dismissed some of

the claims against the defendants. Prior to trial and apparently before the District Court’s

July 17, 2000 decision, Kopetskie, Krauser, the School District and Chambers agreed to

settle with the Nawrockis but the complaint was not dismissed as to them until February

27, 2001, after the trial.

The trial began on November 27, 2000. Sometime before the case went to the

jury, the District Court granted judgment as a matter of law on the malicious prosecution

claims, sending only the defamation claim against Fluegel to the jury. App. at 102-108.

The jury found in favor of Fluegel on that claim.

* * *

The Nawrockis argue that the Township is liable for violating Nawrocki’s civil

rights under  1983. A municipality can be liable under  1983 for acts pursuant to an

unconstitutional policy, custom or practice. Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 690-91 (1978). The District Court, in granting a motion for summary judgment in

favor of the Township, found that the Nawrockis had not offered any evidence of any

unconstitutional policy, custom or practice pursuant to which Nawrocki had been

maliciously prosecuted. This court conducts a plenary review of a district court’s grant

of summary judgment. See, e.g., Beers-Capitol v. Whetzel, 256 F.3d 120, 130 n.6 (3d

Cir. 2001).

The Nawrockis make various arguments relating to the Township’s liability. First,

they argue that the Township delegated to Fluegel responsibility for promulgating police

policies and instituting police customs, that Fluegel’s initiation of Nawrocki’s

prosecution was in accordance with such policies and customs, and that such policies and

customs are unconstitutional. Second, they argue that even if Fluegel’s actions did not

constitute policy or custom, his single act of prosecuting Nawrocki is effectively a

custom or policy, and thus the Township can be liable for this action. Third, they argue

that Fluegel’s investigation of the harassment of Chambers violated the Township’s

policies and customs and that the Township is liable because it allowed Fluegel to violate

Township policies and customs. In particular, they argue that the Township can be liable

because it recklessly disregarded and was deliberately indifferent to Fluegel’s alleged

practice of arresting citizens without probable cause.

The Nawrockis point to various alleged policies or customs of the Township that

they say were either unconstitutional or were violated. First, they say the Township has

an unwritten policy of permitting improper investigations and/or allowing prosecutions

without probable cause. If the Township did have such policies or customs, they would

be unconstitutional, but the Nawrockis do not point to any "official proclamation, policy,

or edict . . . [that] virtually constitute[s] law." Berg v. County of Allegheny, 219 F.3d

261, 275 (3d Cir. 2000). The District Court did not err in finding that there was no

evidence of an unconstitutional policy or custom.

* * *

This court

has held that

[o]nce a  1983 plaintiff identifies a municipal policy or

custom, he must "demonstrate that, through its deliberate

conduct, the municipality was the ’moving force’ behind the

injury alleged." If . . . the policy or custom does not facially

violate federal law, causation can be established only by

"demonstrat[ing] that the municipal action was taken with

’deliberate indifference’ as to its known or obvious

consequences. A showing of simple or even heightened

negligence will not suffice."

Berg, 219 F.3d at 276 (alterations in original) (citations omitted) (quoting Bd. of the

County Comm’rs v. Brown, 520 U.S. 397, 404, 407 (1997)). The Nawrockis have not

pointed to any evidentiary support for their claim that the Township was deliberately

indifferent to whether police policies were violated.

* * *

After the Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994),

the legal landscape surrounding  1983 malicious prosecutions changed. Donahue v.

Gavin, 280 F.3d 371, 379 (3d Cir. 2002). In Donahue, we interpreted Albright to require

a  1983 malicious prosecution complainant to show a Fourth Amendment violation, id.

at 380, namely, a violation arising from an action occurring between arrest and trial. Id.

at 381. Albright left standing the rule that to make out a claim of malicious prosecution a

party must demonstrate that "(1) the defendants initiated a criminal proceeding; (2) the

criminal proceeding ended in the plaintiff’s favor; (3) the proceeding was initiated

without probable cause; and (4) the defendants acted maliciously or for a purpose other

than bringing the plaintiff to justice." Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir.

1996) (citing Haefner v. Burkey, 626 A.2d 519, 521 (Pa. 1993)).

At issue in the present case is whether the District Court erred in granting a

motion for judgment as a matter of law against the Nawrockis with respect to their claim

of malicious prosecution against Fluegel. It is clear that Fluegel initiated a criminal

proceeding against Nawrocki and that the proceeding ended in her favor. Further, there

was a "seizure" of Nawrocki that occurred during the appropriate time period to

constitute a possible Fourth Amendment violation. The question then is whether the

District Court erred in finding as a matter of law that Fluegel had probable cause for

Nawrocki’s prosecution, a matter on which this court conducts a plenary review. Mosley

v. Wilson, 102 F.3d 85, 89 (3d Cir. 1996).

The District Court held that Fluegel had probable cause to arrest Nawrocki in

significant part because of the polygraph evidence which the Nawrockis claim was

erroneously admitted. We review the District Court’s evidentiary rulings for abuse of

discretion. Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 110 (3d Cir. 1999).

Erroneous evidentiary rulings will be considered harmless if "it is highly probable that

the district court’s [evidentiary decision] did not affect [the party’s] substantial rights." Becker v. ARCO Chem. Co., 207 F.3d 176, 179 (3d Cir. 2000).

Rulings of the appellate courts on the admissibility of results of polygraph tests

have differed. This court has not adopted a per se exclusionary rule. See, e.g., United

States v. Johnson, 816 F.2d 918, 923 (3d Cir. 1987) (stating polygraph evidence would

have been admissible to rebut defendant’s claim that confession was coerced).

More recently, based on the Supreme Court’s decision in Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 588-589 (1993) (holding that expert testimony may be

admissible even if not generally accepted in the relevant scientific community, provided

that it qualifies in some other way as reliable under Federal Rule of Evidence 702), some

trial courts have found polygraph evidence admissible. See, e.g., United States v.

Crumby, 895 F. Supp., 1354, 1358-63 (D. Ariz. 1995) (polygraph evidence admissible

because sufficiently reliable given narrow purposes); United States v. Galbreth, 908 F.

Supp. 877, 878-95 (D. N.M. 1995) (polygraph evidence admissible because reliable in

specific case). However, most appellate courts that have discussed polygraph evidence
after Daubert have ruled against admitting it. See, e.g., United States v. Lea, 249 F.3d

632, 639-40 (7th Cir. 2001) (holding admissibility of polygraph evidence should be

resolved under Fed. R. Evid. 403 balancing test but reliability of polygraph test may be

included to determine how probative particular polygraph test is); United States v.

Benavidez-Benavidez, 217 F.3d 720, 725 (9th Cir. 2000) (district court may exclude

polygraph evidence as unduly prejudicial under Rule 403).

Typically, the question concerning the admissibility of polygraph evidence is

whether, in a criminal trial, an expert can testify about the truthfulness of a witness or

defendant on the basis of the results of a polygraph test. In the present case, the District

Court held that the polygraph evidence was not being admitted for its truth, but rather to

prove probable cause. In particular, the polygraph evidence was used by the District

Court to show that Fluegel had adequately considered whether Chambers might be

responsible for her own harassment. App. at 104. Based on our review of the record in

this case, we cannot find that the District Court abused its discretion in admitting the

polygraph evidence for this limited purpose.

* * *

The Nawrockis included a Fourteenth Amendment Due Process claim in their

original complaint. In its July 1998 decision, the District Court found that the Nawrockis

had a procedural due process claim upon which relief could be granted. App. at 17.

However, in its July 17, 2000 order, the District Court did not include any procedural due

process claim in its list of the Nawrockis’ claims that remained standing. App. at 39.

The Nawrockis correctly note that the procedural due process claim was not among those

claims that the District Court disposed of in its July 17, 2000 order. They now argue that

this court should order a new trial in which they can be heard on the allegedly unresolved

Fourteenth Amendment claim. In response, appellees argue that this claim was either

dismissed or, if not, that it had been waived by the Nawrockis’ failure to preserve the

claim at trial.

* * *

Click the case caption above for the full text of the Court's opinion.

For the reasons described herein, the judgment of the District Court will be

affirmed.

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Not Published