Mary Ann Ciarlone; Irene Lora; Orazio Gerbino; Anne Baez v. City of Reading

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2308
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MARY ANN CIARLONE; IRENE LORA; ORAZIO GERBINO; ANNE BAEZ,
Appellants
v.
CITY OF READING; THOMAS MCMAHON, MAYOR OF THE CITY OF READING
IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; RYAN HOTTENSTINE,
MANAGING DIRECTOR, CITY OF READING IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; BRAD REINHART, CODE ADMINISTRATOR, CITY OF
READING IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JATINDER SINGH
KHOKHAR, DEPARTMENT MANAGER OF THE OFFICE OF CODE SERVICES,
CITY OF READING, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JAMES
ORRS, CODE ENFORCEMENT OFFICER, CITY OF READING, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5:09-cv-00310)
District Judge: Honorable Lawrence F. Stengel
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Submitted Pursuant to Third Circuit LAR 34.1(a)
March 8, 2012
Before: McKEE, Chief Judge, SCIRICA and AMBRO, Circuit Judges.
(Opinion filed: July 25, 2012)
__________
OPINION
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McKEE, Chief Judge.
Irene Lora, Orazio Gerbino, and Anne Baez (“Tenants”) appeal the District
Court’s denial of their motions for judgment as a matter of law in this civil rights action
that they and their landlord, Mary Ann Ciarlone (“Plaintiffs”), filed against the City of
Reading, Pennsylvania (“Reading”), and certain Reading officials. Plaintiffs also
challenge certain discovery and evidentiary decisions made by the District Court. For
the reasons that follow, we will affirm.
I.
Since we write primarily for the parties, who are familiar with the background of
this case, we discuss the events leading to this appeal only briefly. Ciarlone is the
owner and landlord of a three-unit residential rental property (“the Property”) in Reading.
Tenants reside in those apartments.
Plaintiffs initiated a civil rights action in the District Court against Reading, Code
Administrator Brad Reinhart, Code Enforcement Officer James Orrs, and other Reading
officials, raising multiple constitutional claims. During discovery, Plaintiffs subpoenaed
Pennsylvania Magisterial District Judge Wallace S. Scott to testify at a deposition.
Plaintiffs claimed that, in April 2007, Judge Scott heard Reinhart state that he wanted to
“get back at that bitch,” referring to Ciarlone. Judge Scott moved to quash the subpoena
and sought a protective order. The District Court referred the motion to a United States
Magistrate Judge, who granted the requested relief. In doing so, the Magistrate Judge
observed that Judge Scott was “not . . . the only possible source of testimony regarding

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Defendant Reinhart’s statement,” for that alleged statement was “discoverable through
other witnesses, such as Defendant Reinhart and [Code Enforcement Officer Joseph
Esterly], who have not been deposed.” (App. at 95.)
Plaintiffs later moved to lift the protective order and compel Judge Scott’s
deposition and trial testimony. In support of this motion, Plaintiffs noted that, while
they had deposed Reinhart and Esterly, neither of them had confirmed that Reinhart had
made the alleged statement about Ciarlone. The District Court denied the motion.
Plaintiffs’ Fourth and Fourteenth Amendment claims against Reading, Reinhart,
and Orrs (“Defendants”) ultimately went to trial. At the close of Plaintiffs’ case, and
again after the jury returned a verdict in favor of Defendants, Tenants moved for
judgment as a matter of law on their Fourth Amendment claim. The District Court
denied both motions. This appeal followed.
Plaintiffs challenge the District Court’s denial of the motions to lift the protective
order and for judgment as a matter of law, respectively, as well as certain evidentiary
decisions made by the District Court.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district
court’s denial of judgment as a matter of law. McKenna v. City of Philadelphia, 649
F.3d 171, 176 (3d Cir. 2011). In conducting this review, we view the evidence in the
light most favorable to the prevailing party, and “will reverse only if the record is
critically deficient of the minimum quantum of evidence upon which a jury could

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reasonably base its verdict.” Id. (internal quotation marks and citation omitted). We
review the denial of a motion to lift a protective order, as well as a district court’s rulings
on the admissibility of evidence, for abuse of discretion. Moyer v. United Dominion
Indus., Inc., 473 F.3d 532, 542 (3d Cir. 2007) (admissibility of evidence); Shingara v.
Skiles, 420 F.3d 301, 305 (3d Cir. 2005) (motion to lift protective order). “We may
affirm the district court on any ground supported by the record.” Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
III.
We first examine the District Court’s denial of Plaintiffs’ motion to lift the
protective order.1 “[C]alling a judge to give testimony in any proceeding is a very
delicate matter,” United States v. Frankenthal, 582 F.2d 1102, 1107 (7th Cir. 1978),
because “factual testimony from a judge unduly can affect a jury.” United States v.
Sine, 493 F.3d 1021, 1033 (9th Cir. 2007). Here, Judge Scott was not the only person
who could testify about Reinhart’s alleged statement. Although the testimony provided
by Reinhart and Esterly may not have been to Plaintiffs’ liking, this did not render the
District Court’s refusal to lift the protective order an abuse of discretion.2
We now turn to the various evidentiary decisions at issue here. Plaintiffs first
challenge the District Court’s refusal to admit two October 2009 newspaper articles from
1 Although Defendants argue that Plaintiffs waived their right to challenge the
Magistrate Judge’s decision granting the protective order, any such waiver does not
prevent us from reviewing the District Court’s refusal to lift that protective order.
2 Although the parties disagree as to whether a “deliberative process privilege” would
govern Judge Scott’s testimony, we need not resolve that question here.

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the Reading Eagle (or, alternatively, to allow testimony from the author of those articles),
which reported that Judge Scott had heard Reinhart state that he wanted to “get”
Ciarlone. The District Court concluded that this evidence was not sufficiently
trustworthy to fall within the residual hearsay exception, Fed. R. Evid. 807,3 because the
articles had been published roughly two-and-a-half years after Reinhart allegedly made
that comment. Despite Plaintiffs’ arguments to the contrary, that ruling was eminently
reasonable and was not an abuse of discretion.4
Plaintiffs next contest the District Court’s exclusion of a Reading City Council
resolution passed shortly after the forced entry inspection of the Property. The
resolution directed the Codes Department “not to undertake any forced entry inspections
of private properties until a standard operating procedure is reviewed and/or developed
and approved, unless there is a complaint or knowledge that a property is an imminent
threat to public health and safety.” (App. at 388.) The District Court excluded this
evidence under Fed. R. Evid. 407, which provides that evidence of subsequent remedial
measures is not admissible to prove, inter alia, culpable conduct. Although Plaintiffs
correctly note that the rule allows such evidence to be admitted to establish the feasibility
3 “[T]he residual hearsay exception is to be used only rarely, and in exceptional
circumstances, and is meant to apply only when certain exceptional guarantees of
trustworthiness exist and when high degrees of probativeness and necessity are present.”
United States v. Lawrence, 349 F.3d 109, 117 (3d Cir. 2003) (quotation marks and
citation omitted).
4 Plaintiffs contend that “[p]ursuant to Federal Rule of Evidence 806, [they] had the right
to use the articles to impeach Defendant Reinhart and attack his credibility as a witness.”
(Plaintiffs’ Opening Br. 52.) This claim lacks merit, for Rule 806 applies only when the
declarant’s hearsay statement has already been admitted. See Fed. R. Evid. 806.

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of precautionary measures, we are not persuaded that feasibility was an issue here. Nor
are we persuaded by Plaintiffs’ claim that Rule 407 is simply inapplicable.
Accordingly, we cannot conclude that the District Court abused its discretion in
excluding this evidence.
Plaintiffs also challenge the District Court’s decision to allow Sergeant Pentheny
to testify about his conversation with an unidentified ADA. Plaintiffs claim that any
statements made by the ADA during that conversation are hearsay and should have been
deemed inadmissible. We disagree. Defendants offered this evidence not to prove the
truth of the ADA’s statements, but rather to show Pentheny’s and Reinhart’s state of
mind and explain why force was used to execute the warrant. Accordingly, this
evidence was not hearsay. See Fed. R. Evid. 801(c). Because Plaintiffs did not
establish that the probative value of this evidence was substantially outweighed by the
risk of unfair prejudice, see Fed. R. Evid. 403, the District Court did not err in admitting
this evidence.
Plaintiffs’ last evidentiary challenge attacks the District Court’s admission of
testimony from Reinhart about the condition of other rental properties in Reading and
“anecdotes about some issues where tenants in rental properties in the City of Reading
were injured as the result of improperly maintained properties.” (App. at 491.) The
District Court, noting that Plaintiffs had alleged that the forced entry inspection of the
Property “was some sort of retaliation or a singling out of [Ciarlone],” (id.), determined
that this evidence was admissible to explain why they carried out the inspection in the

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manner that they did. Although Plaintiffs claim that this evidence was “highly
prejudicial” — presumably they mean to argue that the evidence was inadmissible under
Rule 403 — the District Court did not abuse its discretion in concluding to the contrary.
Indeed, as Defendants state in their brief, “[t]his evidence was highly probative as to why
the City of Reading felt there was an urgency to enforce administrative search warrants.”
(Defendants’ Br. 74.)
We conclude our review by examining the District Court’s denial of Tenants’
motions for judgment as a matter of law. The crux of Tenants’ argument is that they
were entitled to a judgment because Defendants did not notify them and give them an
opportunity to consent to the inspection. They rely on Camara v. Mun. Ct. of S.F., 387
U.S. 523 (1967). There, the Supreme Court “held that administrative searches had to be
conducted pursuant to a warrant,” and that probable cause to issue such a warrant “did
not sound in terms of suspicion of criminal activity, but in terms of reasonable legislative
or administrative standards governing the decision to search a particular building.”
Michigan v. Clifford, 464 U.S. 287, 308 (1984) (emphasis added) (summarizing
Camara). The Camara Court also stated that “as a practical matter and in light of the
Fourth Amendment’s requirement that a warrant specify the property to be searched, it
seems likely that warrants should normally be sought only after entry is refused unless
there has been a citizen complaint or there is other satisfactory reason for securing
immediate entry.” Camara, 387 U.S. at 539-40.
Tenants interpret the quoted excerpt from Camara to mean that, unless there is a

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citizen complaint or “other satisfactory reason for securing immediate entry,” “the refusal
of consent by a tenant-occupant is a precondition to seeking an administrative search
warrant to conduct a planned routine inspection.” (Plaintiffs’ Opening Br. 29.) Yet
Tenants fail to cite a single case to support this interpretation even though Camara was
decided more than four decades ago. Moreover, Tenants do not explain how Camara’s
use of the phrase “it seems likely” reflects the Supreme Court’s intent to announce a rule
of constitutional law. Accordingly, we cannot conclude that the District Court erred in
rejecting their interpretation of Camara.5 Since Tenants have not established that “the
record is critically deficient of the minimum quantum of evidence upon which a jury
could reasonably base its verdict,” McKenna, 649 F.3d at 176 (internal quotation marks
and citation omitted), we will not disturb the District Court’s denial of Tenants’ motions
for judgment as a matter of law.
IV.
In light of the above, we will affirm the District Court’s entry of judgment in favor
of Defendants.
5 Nor can we conclude that the District Court’s jury instructions on Tenants’ Fourth
Amendment claim were in error.

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