Simpson v. Nicklas

500 F. App'x 185
Court of Appeals for the Third Circuit·Decided October 2, 2012·No. No. 10-3931·Published·Cited by 6 cases

Opinion

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The District Court dismissed John “Ted” F. Simpson’s complaint for failure to state a claim and denied him leave to amend on grounds of futility. Simpson appeals the court’s decision to deny him leave to amend. We ordinarily review the denial of leave to amend for abuse of discretion, but Simpson presents no argument on how the court abused its discretion. Instead, he asks us to consider a waived issue — an issue he declined to raise before the District Court — to determine if leave to amend should be granted. Because we find no exceptional circumstances warranting the consideration of Simpson’s waived issue, we will affirm the District Court’s judgment.

I

Sergeant Thomas J. Nicklas initiated a police investigation on December 6, 2006, after receiving a report that Simpson had sexually assaulted a sixteen-year-old girl. Simpson, who was the manager at the radio station where the girl worked, allegedly drove her to a hotel, bought and supplied alcohol to her, and engaged in improper sexual contact with her. During the investigation, Nicklas contacted two Pennsylvania State Troopers believed to be familiar with Simpson’s previous criminal charges of Furnishing Alcohol to Minors, Impersonating a Public Servant, and Prohibited Offensive Weapons. Nicklas also obtained search warrants for the hotel room where the alleged assault occurred and for Simpson’s phone records, bank statements, and home. Although the investigation produced an extensive case report containing information relating to the sexual assault, Simpson was only charged with furnishing alcohol to minors and corruption of minors. A non-jury trial was held in the Elk County Court of Common Pleas on November 10, 2009, where Simpson was found not guilty of furnishing alcohol to minors. The accompanying charge of corruption of minors was dismissed by the prosecutor on the same day.

On May 24, 2010, Simpson filed a § 1988 civil rights complaint against Nicklas and the two Pennsylvania State Police Troopers Nicklas contacted during the investiga[187] tion.1 Pertinent to this appeal, the complaint alleged Nicklas sought to embarrass Simpson and ruin his reputation by placing information related to the sexual assault in the search warrant affidavits, the criminal complaint, and the case report. It further alleged the two troopers lied to Nicklas during the investigation when describing Simpson in an unflattering light. Through these actions, Simpson claimed defendants deprived him of his Thirteenth Amendment 2 right to equal protection under the law and his Fourteenth Amendment right to procedural and substantive due process of law.

The District Court dismissed Simpson’s complaint under Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief could be granted. In their motions to dismiss, defendants surmised Simpson was attempting to assert deprivation of reputation as the underlying theory of his § 1988 claim. But Simpson, in his opposition brief, did not pursue such a theory. The court noted there was no right to be free from police investigation based on reasonable information and found Simpson had failed to establish exactly what deprivation he was claiming. And in light of Simpson’s apparent rejection of the deprivation of reputation theory, the court determined leave to amend would be futile. Simpson filed this timely appeal.3

II

Upon retaining new counsel for this appeal, Simpson concedes the District Court was correct in dismissing his complaint as originally filed. Accordingly, he appeals only the court’s decision to deny him leave to amend his complaint. Ordinarily, we would review the denial of leave to amend for abuse of discretion. Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000) (citation omitted). But Simpson does not contend the court abused its discretion. Instead, he attempts, for the first time on appeal, to assert the deprivation of reputation claim he previously eschewed before the District Court.

Issues not presented before the district court are deemed to be waived and may not be heard on appeal. Tri-M Group, LLC v. Sharp, 638 F.3d 406, 416 (3d Cir.2011) (citation omitted). But in “ ‘exceptional circumstances,’ ” we may consider such waived issues. Id. (quoting Council of Alt. Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir.1999)). Exceptional circumstances arise when “‘the public interest requires that the issue[s] be heard or when a manifest injustice would result from the failure to consider the new issue[s].’ ” United States v. Anthony Dell'Aquilla, Enters. & Subsidiaries, 150 F.3d 329, 335 (3d Cir.1998) (quoting Altman v. Altman, 653 F.2d 755, 758 (3d Cir.1981)). Here, Simpson argues manifest injustice will result if we fail to consider his deprivation of reputation claim on appeal. He admits his first attorney, who represented him before the District Court, failed to raise the deprivation of reputation issue or even request leave to amend the complaint. But he alleges these mistakes were caused by his first attorney’s worsening degenerative neurological condition. Accordingly, Simpson contends it would be manifestly unjust to punish him for the mistakes of his attorney.

[188] We can find no exceptional circumstances in this case that would allow Simpson to assert his waived issue. In past instances, we have declined to consider the merits of a waived issue even though counsel’s error had adversely affected the case. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116 (3d Cir.1992). “Many errors by one’s counsel prejudice a case; but few are said to be a miscarriage of justice.” Id. Moreover, “[w]hen a litigant takes an unequivocal position at trial, he cannot on appeal assume a contrary position simply because the decision in retrospect was a tactical mistake, or perhaps a candid but regretted concession.” Id. (citation omitted). And while Simpson is unlikely to characterize his first attorney’s failure to assert deprivation of reputation claim as a tactical mistake or concession, we question the assertion of such a claim on the facts of Simpson’s case.

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Simpson v. Nicklas, 500 F. App'x 185 (3d Cir. 2012).

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