JOHN F. SIMPSON, also known as Ted Simpson v. Sgt. Thomas J. Nicklas, of the St. Mary's Police Department, Individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3931
___________
JOHN F. SIMPSON,
also known as Ted Simpson
v.
SGT. THOMAS J. NICKLAS, of the St. Mary's Police Department,
Individually and in his Official Capacity;
An Unknown Pennsylvania State Police Trooper
of the Huntingdon State Police Barracks, Individually;
WILLIAM L. WAGNER, Pennsylvania State Police Trooper, Individually
John "Ted" F. Simpson,
Appellant
_______________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 10-cv-01112
(Honorable Sylvia H. Rambo)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2012
Before: SCIRICA, ROTH and BARRY, Circuit Judges.
(Filed: October 2, 2012)
_________________
OPINION OF THE COURT
_________________

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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

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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 § 1983 civil rights complaint against Nicklas
and the two Pennsylvania State Police Troopers Nicklas contacted during the
investigation.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 Amendment2 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 § 1983 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
1 William L. Wagner and an unknown trooper of the Huntingdon State Police Barracks.
2 The District Court assumed Simpson meant the Fourteenth Amendment and not the
Thirteenth Amendment, as the latter pertains to the abolition of slavery.

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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
3 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343. We have jurisdiction
under 28 U.S.C. § 1291.

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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.
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.
Section 1983 ―is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.‖ City of Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U.S. 687, 749 n.9 (1999) (quotation omitted). A successful § 1983
claim requires plaintiffs to show: (1) violation of a right secured by the Constitution and
the laws of the United States and (2) commission of that violation by a person acting
under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (citing Kneipp

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v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1990)). A harm to one‘s reputation is not
actionable under 42 U.S.C. § 1983 unless a plaintiff can show ―‗a stigma to his reputation
plus deprivation of some additional right or interest.‘‖ Dee v. Borough of Dunmore, 549
F.3d 225, 233–34 (3d Cir. 2008) (quoting Hill v. Borough of Kutztown, 455 F.3d 225,
236 (3d Cir. 2006)).
Before the District Court, Simpson failed to allege deprivation of any additional
right or interest. But on appeal, he attempts to expand the record with an affidavit
claiming extreme financial hardship resulting from the loss of employment and future
employment opportunities. Although what qualifies as ―some additional right or interest‖
is less than clear, see Baraka v. McGreevey, 481 F.3d 187, 208 (3d Cir. 2007), we have
previously found allegations of ―possible loss of future employment opportunities,‖ Clark
v. Twp. of Falls, 890 F.2d 611, 620 (3d Cir. 1989), and even outright ―financial harm,‖
Sturm v. Clark, 835 F.2d 1009, 1013 (3d Cir. 1987), to be insufficient to satisfy the
―some additional right or interest‖ requirement of the ―stigma-plus‖ test. Accordingly,
even if we did consider Simpson‘s waived issue on appeal, we would find it to lack merit.
Finally, if Simpson has a legitimate complaint concerning his first attorney, there
are civil remedies he can pursue. See Link v. Wabash R. Co., 370 U.S. 626, 634 n.10
(1962) (stating the proper remedy for ineffective counsel in civil cases is not reversal, but
a suit against the attorney for malpractice). There is no right to effective counsel in civil
cases. Id. at 633–34 (noting dismissal resulting from counsel‘s error is not an unjust
penalty, and litigants are responsible for the acts or omissions of their freely selected

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agents). Accordingly, we find no exceptional circumstances warranting our consideration
of Simpson‘s waived issue.
III
For the foregoing reasons, we will affirm the judgment of the District Court.

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