2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-7-2013

Ada Banks-Scott v. City of Philadelphia

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3188

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Recommended Citation

"Ada Banks-Scott v. City of Philadelphia" (2013). 2013 Decisions. Paper 720.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3188

___________

ADA BANKS-SCOTT,

ANTONIO JONES;

SONYA JONES

ADA BANKS-SCOTT,

 Appellant

v.

CITY OF PHILADELPHIA; P/O SANSHERRYSE FRISBY, INDIVIDUALLY

& IN HER OFFICIAL CAPACITY AS A PHILA. POLICE OFFICER; P/O JOHN DOE,

INDIVIDUALLY & IN HIS OFFICIAL CAPACITY AS A PHILA. POLICE OFFICER

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-09-cv-03712)

Magistrate Judge: Honorable David R. Strawbridge

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 6, 2013

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: June 7, 2013 )

___________

OPINION

___________
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PER CURIAM

Because the parties are familiar with the background, we present an abbreviated 

summary. Represented by counsel, Appellant Ada Banks-Scott brought a civil rights 

lawsuit in state court against the City of Philadelphia and Police Officer Sansherryse 

Frisby. Officer Frisby testified at a preliminary hearing on criminal charges lodged 

against Banks-Scott’s grandson, Antonio Jones.1 The parties encountered each other 

outside the courtroom after the hearing. The parties offer differing accounts of what 

occurred during the incident that ensued. No arrests were made that day, but as a result 

of the interaction, Banks-Scott was later arrested and charged with intimidation of a 

witness, retaliation against a witness, terroristic threats, and obstruction of justice. 

Banks-Scott maintains that she never made any threats. Ultimately, the charges against 

her were dismissed.

In her complaint, Banks-Scott made a claim against the City pursuant to Monell v. 

New York City Department of Social Services, 436 U.S. 658 (1978), and against Officer 

Frisby for false arrest and malicious prosecution under the Fourth Amendment. She also 

made state law claims against Officer Frisby for false imprisonment, malicious 

prosecution, and intentional infliction of emotional distress. The Defendants removed the 

action to federal court. Following a pretrial conference, and with the agreement of 

 

1

Jones and his mother, Sonya Jones, were also plaintiffs in Banks-Scott’s lawsuit. 

Sonya Jones’s claims were dismissed in March 2012, due to her failure to participate in 

pre-trial proceedings. Antonio Jones’s claims were dismissed in July 2012, just before 

trial. Those dismissals are not in dispute and are not at issue here.
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Banks-Scott’s attorney, the presiding Magistrate Judge dismissed the Monell claim 

against the City and the state law claim of intentional infliction of emotional distress 

against Officer Frisby. The claims that remained for trial were the Fourth Amendment 

claims for unlawful seizure and malicious prosecution, and state law claims of false 

imprisonment and malicious prosecution, against Officer Frisby as the sole defendant. 

After a two-day trial, the jury found in Defendant Frisby’s favor. The District Court 

entered judgment. Banks-Scott filed a pro se notice of appeal. We have jurisdiction 

under 28 U.S.C. § 1291.

We begin with the scope of this appeal. We are mindful of our jurisdiction only 

over orders specified in the notice of appeal or “fairly inferred” by the notice, see Sulima 

v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010). Here, the notice of appeal 

indicates Banks-Scott’s intent to appeal from an order entered on July 10, 2012. See Fed. 

R. App. P. 3(c). No order was entered on that date, but the record shows the July 11, 

2012 entry of the Magistrate Judge’s order, dated July 10, 2012, dismissing certain claims 

after the pre-trial conference. As noted above, the claims were dismissed with the 

agreement of Banks-Scott’s attorney. Further, Banks-Scott identifies no errors with 

respect to those dismissed claims, so those issues are waived. See, e.g., Bailey v. United 

Airlines, 279 F.3d 194, 204 (3d Cir. 2002) (issue is waived on appeal when identified in 

the statement of issues but not argued in the brief). We need not address the issues any 

further. Banks-Scott’s briefs focus instead on the trial and the jury’s verdict in favor of 

Officer Frisby, which was entered as judgment the next day, on July 12, 2012. Given our 
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heightened duty to construe a pro se notice of appeal liberally, see Gov’t of the Virgin 

Islands v. Mills, 634 F.3d 746, 751 (2011), we conclude that the judgment can be fairly 

inferred by Banks-Scott’s notice of appeal, and we will assume jurisdiction over the 

arguments in her briefs.

Banks-Scott asserts that the trial court allowed questioning that “[took] focus away 

from the real issue which was the wrongful attack of the officer against myself and the 

false imprisonment of . . . myself.” Appellant’s Brief at 4. She maintains that she was 

not involved in the altercation with Officer Frisby, and that the evidence and transcripts 

validate her position that Officer Frisby was the one who engaged in misconduct. See

Appellant’s Reply Brief at 1-2. Banks-Scott concedes that Officer Frisby and another 

officer testified that she threatened Officer Frisby, but she argues that their testimony was 

false. See id. at 2. On the record before us, which includes selected portions of the trial 

transcript, including Officer Frisby’s testimony,2it is unclear whether Banks-Scott 

preserved her claim that the jury’s verdict was against the weight of the evidence. In any 

event, we conclude that Banks-Scott has not established that she is entitled to a new trial, 

as the matter turns on a credibility dispute. A court must not substitute its judgment 

regarding the facts and witness credibility for that of the jury, especially on appeal. See

William A. Graham Co. v. Haughey, 646 F.3d 138, 143 (3d Cir. 2011) (citing Sheridan v. 

 

2 Rule 10(b)(1) of the Federal Rules of Appellate Procedure requires an appellant 

to procure a transcript “as the appellant considers necessary.” Albeit belatedly, BanksScott arranged for a partial trial transcript comprised of the testimony of select witnesses.
5

E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996)). In other words, it 

was the jury’s duty--not ours--to weigh the evidence and determine the credibility of 

witnesses. We conclude that Banks-Scott has not met the “stringent” standard of 

establishing that a miscarriage of justice would result if the jury’s verdict were to stand. 

See Sheridan, 100 F.3d at 1076.

Finally, we note that Banks-Scott also asserts that she was “not properly 

represented” by her attorney. Appellant’s Brief at 1. However, her dissatisfaction with 

her attorney’s performance does not entitle her to a new trial. See Kushner v. Winterthur 

Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir. 1980) (sole remedy for ineffective legal 

representation in a civil lawsuit is a malpractice action against the offending attorney).

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