Douglas A. Bounds v. Stanley Taylor

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 02-2644
DOUGLAS A. BOUNDS
v.
STANLEY TAYLOR; ROBERT SNYDER; JOSEPH DUDLEK;
ALAN MACHTINGER; MARGARET HULLINGER and
JAMES LUPINETTI
Stanley Taylor, James Lupinetti, Alan Machtinger,
Robert Snyder and Joseph Dudlek,
Appellants
(* Caption Amended as per Court’s March 25, 2003 Order)
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 00-cv-00197)
District Judge: Hon. Roderick R. McKelvie
Submitted Under Third Circuit LAR 34.1(a)
September 2, 2003
Before: SLOVITER, NYGAARD and ROTH, Circuit Judges
(Filed: September 18, 2003 )
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
Appellants Stanley Taylor, Robert Snyder, Alan Machtinger, Joseph Dudlek,
James Lupinetti (collectively the “Appellants”), officers and administrative staff members
of the Delaware Department of Correction (“DOC”), were found liable by a jury in the
total amount of $51,000 to Douglas Bounds on his First Amendment retaliation claim
under 42 U.S.C. § 1983. Bounds claimed that the retaliation followed his response to an
official inquiry that some of the other prison guards had used excessive force in quelling a
prison disturbance. The jury found for Bounds. The District Court rejected the
Appellants’ motion for judgment as a matter of law or for a new trial, and they appeal.
I.
FACTS AND PROCEDURAL HISTORY
Because the facts are known to the parties, we review them only briefly. Bounds
was a correctional officer at the Delaware Correctional Center (“DCC”) for nine years
(1989-1998). He concedes that over the course of his employment with DOC, he had an
attendance problem and received less-than-favorable reviews. Bounds also suffered from
alcoholism and work-related depression.
On August 21, 1997, Bounds participated in a riot suppression, during which he
witnessed fellow correctional officers Joseph Dudlek and Larry Fetzer allegedly use
excessive force against inmates. On the initial inquiry, he omitted details about any use
of excessive force because he was afraid of the potential backlash and did not want to be

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labeled as a “snitch” by his fellow officers. An Internal Affairs (“IA”) officer, Tom
Bailor, interviewed various inmates and found that they corroborated the story by
Dominique Brown, another officer, of assaults against inmates in the course of the riot
suppression. When Bailor questioned Bounds again, Bounds revealed more details and
told Bailor that he believed that Dudlek and Fetzer used excessive force against the
inmates. He claims that almost immediately thereafter, Dudlek began harassing him by a
series of indisputably pointed remarks that conveyed the impression that Dudlek knew
that Bounds was the “snitch.” Bounds testified that Dudlek confronted him in the DOC’s
parking lot and demanded to know what was said to the IA department, that he was
shunned, and that the other officers who used to be his friends did not wish to
communicate with him any longer because he was labeled a “snitch.” App. at 175. When
he referred to this harassment during a hearing in February 1998 investigating allegations
that Bounds had been seen visiting a liquor store in his DOC uniform, Bounds broke
down and cried. While Bounds was ultimately cleared of the allegations, the so-called
“crying incident” led to the DOC’s decision to perform a psychological evaluation (with
Dr. Peggy Hullinger, the DOC-appointed forensic psychologist) notwithstanding that he
was already seeing a psychiatrist for work-related depression and taking psychotropic
medication.
DOC Human Resources Director Alan Machtinger received the results of the
psychological evaluation on April 20, 1998. It concluded that Bounds was unfit for duty

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in his current position as a correctional officer until he completed an intensive out-patient
alcohol treatment program. The next day, Machtinger informed DCC Warden Robert
Snyder about Bounds’ temporary unfitness for duty, and on April 28, 1998 Snyder, on the
recommendation of both Machtinger and Dr. Hullinger, temporarily reassigned Bounds
for light-duty work in the control room with no inmate contact until he completed the
recommended alcohol treatment therapy. Bounds refused, stating that the new shift was
inconvenient, would change his days off, and would disrupt his car pool to and from the
prison. Snyder again ordered Bounds to report to his light-duty work shift, and again
Bounds refused on the same grounds.
As a condition to Bounds’ return to his position as a correctional officer, he was
required to enter an intensive out-patient treatment program. Dr. Hullinger recommended
the PACE program in Dover, Delaware, which Bounds entered but dropped shortly
thereafter because it was far from his residence and cost $20 per session. Instead, on June
19, 1998, Bounds enrolled in the substance abuse program at Mental Health Access
(“MHA”) in his hometown of Seaford, Delaware. He later completed the out-patient
treatment program satisfactorily and was discharged on October 11, 1998.
Shortly after Bounds enrolled in the substance abuse program at MHA, Machtinger
informed him that the DOC was considering permanent termination because he had
missed treatment sessions at PACE and because he twice refused to report for his light-
work shifts in the control room. Machtinger complained that Bounds still tested positive

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1 Fellow Officer Dominique Brown filed a similar claim, and their two claims were
consolidated. Brown is not a party to this appeal.
2 There is subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). This
court exercises appellate jurisdiction under 28 U.S.C. § 1291.
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for alcohol prior to attending sessions at PACE, and repeatedly missed Alcoholics
Anonymous meetings. Although Bounds’ employment with the DOC was never
officially terminated, he did not regain his correctional officer position, and on October
16, 1998, he applied for a State of Delaware disability pension effective on February 1,
1999.
Some time later, Bounds filed this 42 U.S.C. § 1983 claim in the District of
Delaware against Appellants, alleging First Amendment retaliation for reporting what he
believed was the use of excessive force by fellow correctional officers against inmates.1
The District Court held a five-day jury trial which resulted in a verdict in favor of Bounds
in the total amount of $51,000.00 divided among Appellants. Appellants then moved for
judgment as a matter of law or for a new trial. The District Court entered a final order
denying Appellants’ motion. This appeal followed.2
Appellants raise four issues: 1) Bounds did not satisfy his evidentiary burden for
First Amendment retaliation; 2) Appellants were entitled to qualified immunity status as
state correctional officers; 3) the District Court abused its discretion when it decided to
seat juror Catherine Bell over Appellants’ peremptory challenge; and 4) the District Court
abused its discretion when it excluded from the jury any mention of the outcome of the

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trial of United States v. Larry Fetzer, Cr. A. No. 99-41 (D. Del.).
II.
DISCUSSION
A. Standard of Review
We have plenary review of the District Court’s ruling on the motion for judgment
as a matter of law. We should affirm the District Court’s denial of the motion for
judgment as a matter of law “unless the record is critically deficient of that minimum
quantum of evidence from which a jury might reasonably afford relief.” Rotondo v.
Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992) (quotations omitted). We must view the
record in the light most favorable to the non-moving party. Link v. Mercedes-Benz of N.
Am., Inc., 788 F.2d 918, 921 (3d Cir. 1986). We also have plenary review of the question
of law whether the asserted federal right was clearly established, which arises on the
qualified immunity issue. See Elder v. Holloway, 510 U.S. 510, 515-16 (1994).
We review for abuse of discretion whether the District Court properly scrutinized
the Batson challenge of juror Catherine Bell, as that is the basis for Appellants’ motion
for a new trial. See American Bearing Co. v. Litton Indus., 729 F.2d 943, 948 (3d Cir.
1984). We also review under an abuse of discretion standard Appellants’ motion for a
new trial on the issue of the District Court’s treatment of evidence related to the outcome
of United States v. Fetzer. See American Bearing Co., 729 F.2d at 948.

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B. First Amendment Retaliation
1. Waiver
Bounds contends that Appellants waived their right to argue that there was
insufficient evidence to support the jury’s finding against them because they failed to
specifically raise the issue of the First Amendment retaliation claim in their post-trial
brief, a prerequisite for judgment as a matter of law under Federal Rule of Civil
Procedure 50. We have examined the record. The Table of Contents of Appellants’ post-
trial brief contains no explicit reference to a motion for judgment as a matter of law on
the First Amendment retaliation issue. See App. at 41-2. Although we are not fully
persuaded by Appellants’ claim that the eight points they raised together sufficiently
covered the First Amendment retaliation issue, we will consider the merits of their claim.
The Supreme Court recognized a cause of action in First Amendment retaliation in
the landmark cases of Pickering v. Board of Education, 391 U.S. 563, 568-70, 574-75
(1968), and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274,
283-84 (1977), and we expanded the doctrine in Ambrose v. Township of Robinson, 303
F.3d 488, 493 (3d Cir. 2002) (citing Bd. of County Comm’rs v. Umbehr, 518 U.S. 668,
675 (1996)). We held in Ambrose that in such a case, the courts must apply the Pickering
balancing test as described in that case:
First, a plaintiff must show that his conduct was
constitutionally protected. Second, he must show that his
protected activity was a substantial or motivating factor in the
alleged retaliatory action. Finally, the defendant may defeat

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the plaintiff’s case by showing that it would have taken the
same action even in the absence of the protected conduct.
Ambrose, 303 F.3d at 493 (quotation and internal citations omitted). Appellants concede
that Bounds satisfied his burden to show that his report to the IA was constitutionally
protected.
Appellants argue that Bounds never met his initial burden of showing that his
report to the IA department was a substantial or motivating factor in the DOC’s decision
to remove him from his correctional officer position. They argue that no reasonable jury
could have found that Bounds’ reassignment constituted retaliatory action by engaging in
an appellant-by-appellant factual analysis.
Appellants rely primarily on Ambrose in which Ambrose, a police officer, alleged
that his suspension was in retaliation for his affidavit in support of a fellow officer’s
lawsuit against the township. 303 F.3d at 490. The township’s proffered motivation for
the suspension was that Ambrose was suspected of making unauthorized photocopies
prior to his affidavit. Id. at 491-92. Despite the jury’s finding for Ambrose, we reversed
the District Court’s order denying the township’s motion for judgment as a matter of law
because it was clear from the record that Ambrose’s affidavit could not possibly have
been a substantial or motivation factor in the township’s decision to suspend him when
none of the township commissioners knew about his affidavit before they voted to
suspend him. Id. at 493. We stated that the “question is not whether there is literally no
evidence . . . but whether there is evidence upon which the jury could properly find a

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verdict for that party.” Id. at 493 (quotation omitted).
Bounds responds that Feldman v. Philadelphia Housing Authority, 43 F.3d 823 (3d
Cir. 1994), is far more analogous to this case. In Feldman, a former employee of the
Housing Authority alleged that his discharge, which followed his internal complaint,
violated the First Amendment and the Pennsylvania whistleblower statute. 43 F.3d at
826-27. We held there that the record was “replete with evidence from which the jury
could property conclude” that the retaliation was, at the very least, a substantial or
motivating factor of the employer’s actions and therefore upheld the First Amendment
claim. Id. at 831.
Unlike previous First Amendment retaliation cases where the alleged retaliation
was confined to a solitary incident, this case presents a series of different instances which,
Bounds submits, in the context of one another constituted retaliation. Bounds faces the
same difficulties as a discrimination claimant who must show a substantial or motivating
factor when many of the decisions made by the employer were made “behind the scenes.”
In such a situation, evidence of a temporal proximity is often helpful. As this court
stated,
A play cannot be understood on the basis of some of its
scenes but only on its entire performance, and similarly, a
discrimination analysis must concentrate not on individual
incidents, but on the overall scenario. . . . [T]he factfinder in
this type of case should not “necessarily examine each alleged
incident of harassment in a vacuum. What may appear to be a
legitimate justification for a single incident of alleged
harassment may look pretextual when viewed in the context

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of several other related incidents.
Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) (quoting Vance v. S. Bell
Tel. & Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989)).
There is adequate evidence from which the jury could reasonably have found each
of the Appellants was aware of Bounds’ report of excessive force. A reasonable jury
could have interpreted Dudlek’s encounter with Bounds in the DOC parking lot as
indicative of his knowledge of the report to the IA department. Bounds testified that
Dudlek referred to him as a “snitch” for reporting the riot suppression incident. A
reasonable jury could also have concluded that Dudlek’s participation in the liquor store
incident was all part of a grand scheme to retaliate against Bounds’ exercise of free
speech.
Lupinetti, Bailor’s supervisor in the IA department, knew of the multiple
complaints by correctional officers concerning the use of excessive force during the 1997
riot suppression. Although Lupinetti never directly interacted with Bounds, and never
actively participated in retaliatory conduct, the testimony of Bailor with regard to
Lupinetti’s reaction to Bailor’s investigatory report was sufficient to put Lupinetti in the
circle of Appellants. Lupinetti told Bailor that he had reported the statement of
Correctional Officer Brown about excessive force to Warden Snyder and DOC
Commissioner Taylor. When Bailor reported to Lupinetti that he had difficulty
scheduling the testimony of the other officers, Lupinetti said Snyder didn’t like Bailor

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“messing around in his house.” App. at 706-07. When Bailor submitted his 44-page
report, Lupinetti told him “they [Paul, Denberg and Commissioner Taylor]” are pissed at
[Bailor] for this report” and required Bailor to change it. App. at 714-15. Bailor
protested that it reeks of a coverup, but Lupinetti made clear that Bailor’s job was at risk.
Lupinetti told him the DOC did not want any bad press. App. at 718. Bailor found it
“puzzling” that Lupinetti accompanied him to the Attorney General’s office to discuss his
findings when Bailor had previously gone alone, told him he couldn’t give his report to
the Attorney General, and limited him in what he could say. App. at 722-23. A
reasonable jury could have concluded that Lupinetti shared the desire to downplay the
force used in the riot suppression and was one of those responsible for actively creating
an environment that was hostile to Bounds.
Machtinger, the Human Resources Director, had frequent and direct contact with
Bounds. Bounds’ crying incident, which Bounds attributed to Dudlek’s harassment, was
reported to M achtinger. But rather than investigate Dudlek’s alleged harassment,
Machtinger ordered a psychological examination of Bounds. A reasonable jury could
have concluded that Machtinger’s insistence on removing Bounds from his position and
eagerly encouraging him to enroll in a specific out-patient alcohol treatment center after
Bounds’ report to the IA department was retaliatory. Bounds’ alcoholism and depression
were well documented throughout his career with the DOC, and Machtinger’s refusal to
reinstate Bounds after successful completion of a legitimate treatment program could

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have suggested to a reasonable jury his retaliatory motive.
Taylor, the Commissioner of Correction, was fully aware of the day-to-day details
of Bailor’s investigation of the riot suppression, sought to minimize “bad press” to protect
his prison, and, according to Bounds, had a negative attitude towards him for making the
report to the IA department. The jury could have concluded that his attitude and the
leverage that he had over the DOC staff created an atmosphere that led others more
directly involved to believe that their actions constituting First Amendment retaliation
were condoned.
As to Appellant Warden Snyder, a reasonable jury could have found that his
involvement in the “liquor store” incident was indicative of retaliatory action for Bounds’
report to the IA department. That conclusion finds support in the facts that the allegations
against Bounds were not substantiated and that Snyder pursued these allegations based on
an anonymous tip.
We note that our willingness to uphold the jury’s decision does not signify that we
would necessarily have reached the same verdict, but only that there was an evidentiary
basis for the jury to have reached the conclusion that it did.
Appellants argue that Bounds would have been removed from his correctional
officer position regardless of his report to the IA department. They contend that Bounds’
alcoholism and depression, as evidenced through the psychological test performed by Dr.
Hullinger, were so apparent that Bounds’ allegations of retaliatory motive could not alter

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the conclusion that, under the circumstances, the DOC would have been compelled to
legitimately reach the same decision even without regard to the protected First
Amendment activity. See Fultz v. Dunn, 165 F.3d 215, 220 (3d Cir. 1998). Appellants
bear the burden of proof on this issue.
It is undisputed that Bounds had serious problems with alcoholism and depression
toward the end of his time at the DOC, but Appellants were aware of these problems over
the course of Bounds’ employment. There is no record of any at-work problems until the
hearing into the “liquor store” incident, where he broke down and cried. Appellants
cannot show that Bounds’ eventual reassignment would have happened anyway when
they fail to offer evidence that the “liquor store” hearing, Bounds’ evaluation by Dr.
Hullinger, and Machtinger’s insistence on Bounds’ participation in the PACE program
were not motivated in retaliation. The Pickering test is dependent on the facts, and
Appellants had the burden to proffer some evidence as to the legitimacy of their actions.
We are not prepared to disturb the jury’s finding as to the issue of First Amendment
retaliation.
C. Qualified Immunity
In rejecting Appellants’ claim of qualified immunity, the District Court looked to
Saucier v. Katz, 533 U.S. 194 (2001), for the appropriate analysis. Saucier clearly sets
forth a two-part test. First, “[t]aken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id.

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at 200. If no violation can be established, the analysis ends. Id. If a violation exists,
however, the next step would be to ask “whether the right was clearly established” in the
context of the case. Id.
The right of public employees to be free from retaliation for speaking on matters of
public concern was established in Pickering and Mt. Healthy. This protection was applied
to correctional officers in Gooden v. Neal, 17 F.3d 925 (7th Cir. 1994). If Appellants
took the actions alleged, and did so to retaliate for Bounds’ report, reasonable officers in
Appellants’ positions could not have believed that their conduct was lawful. It follows
that the District Court did not err in rejecting qualified immunity as a defense.
D. The Batson Issue
We next consider the District Court’s action in seating juror Catherine Bell over
Appellants’ peremptory challenge. During the jury selection process Appellants
challenged three of the four potential African-American jurors. They objected to Juror
No. 18, who pursued a wrongful discharge claim against his former employer, and Juror
No. 7, whose husband had likewise brought a wrongful discharge claim. The District
Court allowed these challenges. They also objected to Juror No. 3, Catherine Bell,
because they independently learned she had been convicted of theft in state court, and
knew that she did not respond to the District Court’s question during voir dire as to
whether any panel member had been arrested. App. at 83-86.
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court set

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forth a three-prong test against the use of peremptory challenges against potential jurors
for racially motivated reasons. Id. at 96. As the Court stated thereafter,
[O]nce the opponent of a peremptory challenge has made out
a prima facie case of racial discrimination (step one), the
burden of production shifts to the proponent of the strike to
come forward with a race-neutral explanation (step two). If a
race-neutral explanation is tendered, the trial court must then
decide (step three) whether the opponent of the strike has
proved purposeful racial discrimination.
Purkett v. Elem, 514 U.S. 765, 767 (1995). Appellants contend that their suspicion of
Bell’s conviction satisfied the racially-neutral explanation prong of the Batson test, and
that the trial judge abused its discretion in failing to allow their peremptory challenge.
The District Court found that Bounds made out a prima facie case of racial
discrimination and asked Appellants to proffer a racially neutral explanation. Appellants
contend that their proffer was sufficient to satisfy the requirement of a non-discriminatory
explanation in response to Bounds’ Batson challenge. They pointed to the fact that Bell
did not affirmatively answer the District Court’s seventh and eighth voir dire questions:
“Has any member of the panel or their immediate family been arrested, detained in a jail
or prison or incarcerated in a correctional facility?” and “Has any member of the panel or
family member been prosecuted by the Department of Justice?” App. at 82. They
contend that because of their independent investigation of Bell, they believed that Bell
should have answered those questions in the affirmative and that it was therefore
reasonable to submit a racially-neutral challenge against her for not being forthright.

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Under Purkett, the second prong of the Batson analysis “does not demand an
explanation that is persuasive, or even plausible. . . . ‘Unless a discriminatory intent is
inherent in the . . . explanation, the reason offered will be deemed race neutral.’” 514
U.S. at 768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)). Appellants
argue that, according to Kirk v. Raymark Industries, Inc., 61 F.3d 147, 160 (3d Cir.
1995), the denial or impairment of a peremptory strike requires per se reversal, without a
need for a showing of prejudice by the party that lost its peremptory challenge.
The third prong of the Purkett analysis requires that the District Court made a
determination as to whose proffer to believe. “It is not until the third step that the
persuasiveness of the justification becomes relevant – the step in which the trial court
determines whether the opponent of the strike has carried his burden of proving
purposeful discrimination.” Purkett, 514 U.S. at 768. In Purkett, the Supreme Court
accepted a non-prejudicial explanation for a peremptory challenge against a potential
juror because he had long curly hair, facial hair, and a generally unkempt appearance. Id.
at 769. There, as here, the explanation passed the second prong. However, in Purkett the
Supreme Court found the proffer to be plausible because the explanation could easily be
corroborated with the facts. There was no doubt that the potential juror in question there
had long curly hair, facial hair, and a generally unkempt appearance. Here, Appellants
could only make allegations about Bell’s past criminal history, and her prior conviction
could not be confirmed by the District Court. Under the circumstances, and given that the

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District Court is charged with the responsibility of making these decisions in context, we
cannot conclude that its determination that Appellants’ proffer was not plausible was an
abuse of discretion.
D. The District Court’s Handling of the Fetzer Criminal Verdict
Correctional Officer Fetzer was one of the officers that Bounds named as having
used excessive force during the riot suppression that was the root of the First Amendment
retaliation claim. Officer Fetzer faced criminal charges in United States v. Fetzer, Cr. A.
No. 99-41 (D. Del.), but was later acquitted. Appellants sought to use his acquittal in the
criminal proceedings to rebut the testimony against Fetzer in the instant civil appeal.
We have held that evidence of an acquittal from a criminal proceeding is
inadmissible in a civil proceeding unless used in “limited occasions when otherwise
inadmissible testimony may be admitted as rebuttal.” Am. Home Assurance Co. v.
Sunshine Supermarket, Inc., 753 F.2d 321, 325 (3d Cir. 1985) (holding evidence of an
acquittal in a criminal arson case inadmissible in a civil arson case). It has been
explained elsewhere:
The rationale for excluding such a dismissal or acquittal from
evidence in a civil trial is obvious. While a conviction can be
considered a judicial determination of guilt, a dismissal,
acquittal, or failure to prosecute may simply reflect an
inability to meet the requisite burden of proof. The danger
that a jury will accept a non-conviction as determinative
outweighs any probative value that such evidence may hold.
Cunningham v. Wash. Gas Light Co., 1988 WL 90400, *1 (D.D.C. 1988).

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That reasoning is fully applicable here. The District Court’s ruling was not an
abuse of discretion.
III.
CONCLUSION
For the reasons set forth, we will affirm the District Court’s order rejecting
Appellants’ motion for judgment as a matter of law or new trial.
/s/ DOLORES K. SLOVITER
Circuit Judge
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