NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3099

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BASSEM KANDIL; SAMEH A. ABOELATA; 

HALLA KANDIL, his wife; FLORA KANDIL, his wife

v.

GARY YURKOVIC, Police Officer; ANTHONY MARK ABODE, Police Officer; 

WILLIAM OELS, III, Police Officer; WILLIAM OELS, JR.; EDWARD T. 

BOBADILLA, Police Officer; CHIEF OF POLICE; CITY OF NEW BRUNSWICK; 

NEW BRUNSWICK POLICE DEPARTMENT; MIDDLESEX COUNTY 

PROSECUTORS OFFICE; MIDDLESEX COUNTY CORRECTIONAL FACILITY

BASSEM KANDIL; FLORA KANDIL, his wife,

 Appellants

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 06-cv-04701)

District Judge: Honorable Dennis M. Cavanaugh

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Submitted Under Third Circuit LAR 34.1(a)

June 13, 2013

Before: SCIRICA, HARDIMAN and ALDISERT, Circuit Judges.

(Filed: June 14, 2013)

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

This case comes to us for the second time. At issue is whether a release-dismissal

agreement signed by Appellant Bassem Kandil is enforceable. In 2011, we vacated a 

summary judgment against Kandil and remanded the matter for the District Court to 

decide whether Kandil’s agreement was enforceable as a matter of public policy. Kandil 

v. Yurkovic, 448 F. App’x 228, 229 (3d Cir. 2011). After additional discovery, the 

District Court again granted summary judgment against Kandil. For the reasons that 

follow, we will affirm the District Court’s judgment as to Kandil’s federal claim, but will 

vacate as to his state law claims.

I

Because we write for the parties, who are well acquainted with the case, we recite 

only the facts and procedural history essential to its disposition. A more detailed 

statement of the facts and procedural history is available in our prior opinion. See Kandil, 

448 F. App’x at 230–31.

In the early morning hours of October 1, 2004, Kandil was arrested for disorderly 

conduct. According to one of the arresting officers, Gary Yurkovic, Kandil instigated a 

belligerent confrontation with the police and then resisted arrest, which required the 

police to subdue him. Kandil was later indicted for aggravated assault, resisting arrest, 

and disarming a police officer. Although an internal police investigation accepted 

Yurkovic’s version of events and cleared the arresting officers of wrongdoing, several 
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witnesses claimed that Kandil was arrested after he and his friends began talking to a 

woman named Pamela who was in a sexual relationship with Yurkovic, and that Yurkovic 

and the other officers beat up Kandil without provocation.

About a year later, Kandil and Middlesex County Assistant Prosecutor Marcia 

Silva reached an agreement whereby the criminal charges against Kandil would be 

suspended and later dismissed in exchange for a release of all his civil claims. Despite 

this agreement, Kandil sued under both 42 U.S.C. § 1983 and state law, arguing that his 

agreement was unenforceable as a matter of public policy. The District Court disagreed, 

and entered summary judgment against Kandil, holding that the release barred his claims.

II1

We review the District Court’s grant of summary judgment de novo, applying the 

same standard as the District Court.2 Slagle v. Cnty. of Clarion, 435 F.3d 262, 263 (3d 

Cir. 2006). Summary judgment is proper ―if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.‖ 

Fed. R. Civ. P. 56(a). In reviewing the District Court’s opinion, we are not limited to its 

 

1

The District Court had jurisdiction over the federal claims under 28 U.S.C. 

§§ 1331 and 1343 and supplemental jurisdiction over the state law claims under 28 

U.S.C. § 1367(a). We have appellate jurisdiction under 28 U.S.C. § 1291.

2 After the District Court granted summary judgment against him, Kandil moved 

for reconsideration, which was denied. Kandil’s notice of appeal mentions only the 

denial of the motion for reconsideration. However, ―an appeal from a denial of a Motion 

for Reconsideration brings up the underlying judgment for review.‖ McAlister v. Sentry 

Ins. Co., 958 F.2d 550, 552–53 (3d Cir. 1992).
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proffered rationale, but rather ―[w]e may affirm the District Court on any grounds 

supported by the record.‖ Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000).

III

For a release-dismissal agreement to be enforceable under federal law, it must, 

among other things, be in the public interest. See Town of Newtown v. Rumery, 480 U.S. 

386, 398 (1987); Cain v. Darby Borough, 7 F.3d 377, 381 (3d Cir. 1993) (en banc). More 

specifically, two requirements must be met. First, there must be an ―objective‖ showing 

that the prosecutor proffered a legitimate public interest reason for entering into the 

agreement that was supported by the facts known to the prosecutor when the agreement 

was reached. Though labeled ―objective,‖ this inquiry does not require an independent 

evaluation of whether Kandil’s claims are marginal or frivolous, as such an evaluation 

would entail the same costs and proceedings which release-dismissal agreements seek to 

avoid. Rather, our inquiry is limited to whether the prosecutors’ conclusion regarding the 

claims was reasonable in light of the evidence. See Livingstone v. N. Belle Vernon 

Borough, 91 F.3d 515, 530 (3d Cir. 1996) (objective inquiry is whether ―the facts known 

to [the prosecutor] could have supported the conclusion that the [plaintiffs’] civil rights 

claims were marginal or frivolous‖ (emphasis added)); see also Cain, 7 F.3d at 383 

(―[T]here must first be a case-specific showing that the released civil rights claims 

appeared to be marginal or frivolous at the time the agreement was made.‖ (emphasis 

added)). Second, there must be a ―subjective‖ showing that the proffered reason was the 
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prosecutor’s actual reason for entering into the agreement. See Livingstone, 91 F.3d at

527 (citing Cain, 7 F.3d at 381).

In this case, the prosecutors’ proffered reason for entering into the releasedismissal agreement was that Kandil’s civil claims appeared marginal or frivolous.3

 

There is a legitimate public ―interest in preventing the public fisc from being wasted by 

defending frivolous lawsuits.‖ Cain, 7 F.3d at 381; see also Rumery, 480 U.S. at 395–96. 

Thus, the questions presented in this appeal are ―whether [Kandil’s] civil rights claims 

were regarded—and, if so, whether they were properly regarded—by the prosecuting 

attorney as marginal or frivolous.‖ Livingstone, 91 F.3d at 530.

A

Kandil’s release-dismissal agreement satisfies the objective prong of the public 

interest test because ―the facts known to the prosecutor when the agreement was reached 

. . . sufficed to support the prosecutor’s proffered public interest reason for concluding the 

agreement.‖ Id. at 527.

Here, Kandil has presented some evidence that the police arrested him for an 

improper reason and used excessive force in doing so. Witnesses testified that Kandil 

was acting peacefully on the night in question, and did not consume any alcohol. On the 

other hand, there is significant countervailing evidence that Kandil was acting in an 

 

3 Defendants also suggested two other reasons the prosecutors might have entered 

into the release-dismissal agreement. We rejected both of those reasons in the previous

appeal and will not revisit them here. See Kandil, 448 F. App’x at 234.
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intoxicated and belligerent manner on the night in question and that the police did not use 

excessive force to subdue him.

First, the police department’s internal investigation concluded that the officers 

acted reasonably and without excessive force. The investigation report noted that police 

reports filed at the time of the incident by Officers Yurkovic, William Oels, and Anthony 

Abode were consistent with their later interview testimony. The internal investigators 

also interviewed four employees of the hospital where Kandil was taken after his arrest. 

These employees unanimously described Kandil as ―combative and aggressive.‖ App. 

1179. One nurse also described Kandil as ―intoxicated.‖

Another contemporaneous police investigation casts further doubt on Kandil’s 

version of events. Immediately after the incident, Kandil alleged that the police were 

motivated to arrest him for racial reasons. In response to this allegation, a police 

investigator interviewed Kandil at the hospital approximately eight hours after his arrest. 

In that interview, Kandil stated that he had consumed one gin and tonic that night, which 

conflicted with his witnesses’ later statements that he had nothing to drink at all. In 

addition, the investigator ―detected a very strong [odor] of alcohol emitting from [Kandil] 

as he spoke‖ and noted that Kandil ―at times was [in very] close proximity to [the 

investigator] and at times . . . would even touch [the investigator’s] left arm.‖ App. 439.

Kandil’s evidence itself bears internal indicia of unreliability. All but one of 

Kandil’s witnesses were friends who were with him on the night in question. The one 
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independent witness was a woman named Lindsay, who was with Pamela that night and 

who was acquainted with Mohammed Farzaie, a member of Kandil’s group. However, 

Lindsay’s testimony presents only a weak case of police misconduct. Her testimony was 

presented in the form of a phone call with Farzaie, in which Farzaie repeatedly made 

leading statements and asked her leading questions. Lindsay admitted that she did not 

know Yurkovic’s motivation for arresting Kandil, but only speculated that Yurkovic did 

so because ―maybe [Pamela] told them that she felt threatened‖ or ―maybe [Pamela] told 

them [Kandil’s group was] harassing me.‖ App. 674. In addition, Lindsay did not 

observe the actual scuffle between Yurkovic and Kandil, as she was ―on the phone with 

[her] boyfriend‖ and ―[g]etting in the car getting ready to go home‖ when it took place. 

App. 679.

In sum, when all the evidence is considered, it ―could have supported the 

conclusion that [Kandil’s] civil rights claims were marginal or frivolous.‖ Livingstone, 

91 F.3d at 530.

B

Having concluded that the prosecutors could have reasonably deemed Kandil’s 

claims marginal, we must turn to whether they actually considered them as such. After 

our first remand, Prosecutor Silva was deposed. In her deposition, she stated that she 

considered the merits of Kandil’s claim and discussed the issue of Pamela’s relationship 

with Yurkovic with her boss. She also testified that Kandil’s witness statements did not 
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influence her decision to enter into the agreement and that she ―had no doubt reading the 

discovery, knowing that the case had been indicted by a Grand Jury, speaking to the 

officers and reviewing the discovery he provided, there was probable cause for arrest that 

night.‖ App. 624.

Kandil has presented no evidence indicating that Silva testified falsely or that she 

was trying to hide evidence of police misconduct. In fact, Silva also testified that, ―I 

walked into Judge DeVesa’s on October 18th, I was trying that case, all the counts in the

case.‖ App. 629. Had she concluded that there was evidence of police misconduct to 

hide, she would have likely proposed the release-dismissal agreement earlier, rather than 

waiting for a settlement conference with a judge.

In addition, the criminal complaint against Kandil was filed two months before his 

notice of tort claim, and eleven months prior to the time he presented his evidence of 

police misconduct to the prosecutor. Insofar as the public interest requirement is intended 

to ―curb the temptation to trump up charges in reaction to a defendant’s civil rights 

claim,‖ Cain, 7 F.3d at 380 (internal quotation marks omitted), that concern is not 

implicated here where the criminal charges were filed long before the prosecutors were 

aware of any civil claims. Therefore, we agree with the District Court that the subjective 

prong of the public interest test is satisfied and that Kandil’s release-dismissal agreement 

is enforceable to bar his § 1983 claims against Defendants.
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IV

Although we will affirm the District Court’s judgment on Kandil’s § 1983 claims, 

we will vacate the judgment insofar as it found Kandil’s state law claims to be barred by 

his release-dismissal agreement.

Although the enforceability of release-dismissal agreements waiving § 1983 claims 

is a question of federal common law, the enforceability of such agreements releasing state 

law claims depends on state law. Livingstone, 91 F.3d at 539. Here, the District Court 

did not analyze under state law whether Kandil’s state law claims were barred by his 

release-dismissal agreement. Therefore, we will vacate the District Court’s disposition of 

the state law claims and remand. Of course, we leave to the District Court’s discretion 

whether to decline supplemental jurisdiction over the state law claims pursuant to 28 

U.S.C. § 1367(c)(3).

V

For the foregoing reasons, we will affirm the judgment of the District Court in 

part, vacate in part, and remand for further proceedings consistent with this opinion.