Freddie Francis v. B. Fuller ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2251
___________
FREDDIE FRANCIS, JR.,
Appellant
v.
CORRECTIONAL OFFICER B. FULLER; CORRECTIONAL OFFICER M. KUBICKI;
SECRET INTELLIGENCE SERVICE OFFICER E. HAYDEN; WARDEN D. EBBERT;
PHYSICIANS ASSISTANT R. CALEY; PHYSICIANS ASSISTANT E. DIMMICO;
ASSISTANT HEALTH SERVICE J. POTOPE; DOCTOR B. BUSCHMAN;
PSYCHOLOGIST C. HEIGEL; DOCTOR E. SANTOS; NURSE WALMAN;
REGISTERED NURSE S. SHOULD; HEALTH SERVICES ADMI K. DEWALD;
ASSISTANT HEALTH SERVICE R. PARKIN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-14-cv-01248)
District Judge: Honorable James M. Munley
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 9, 2019
Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges
(Opinion filed January 7, 2020)
___________
OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Pro se appellant Freddie Francis appeals the District Court’s final judgment in this
prisoner-civil-rights case. We have jurisdiction under 28 U.S.C. § 1291. For the reasons
detailed below, we will affirm.
As relevant here, this case concerns an incident that occurred on November 5,
2012, at USP Canaan, where Francis was then incarcerated. All parties agree that, on that
day, Correctional Officers William Fuller, Matthew Kubicki, and Edward Hayden were
performing a “cell consolidation,” in which they were moving a prisoner named Van
Lightning into Francis’s cell. From there, though, the parties’ accounts diverge. Francis
claims that Officer Fuller entered Francis’s cell, falsely accused Francis of kicking him,
tackled Francis onto the floor, and then, along with Officer Kubicki, kicked Francis
repeatedly. Officers Fuller, Kubicki, and Hayden, meanwhile, claim that when they
introduced Lightning into the cell, Francis began to kick Lightning. Fuller intervened,
Francis kicked him, and Fuller took Francis down. As a result of this contact between
Francis and the officers, Francis suffered a cut to his head and was taken to the infirmary.
Francis filed a Bivens1 action against the officers, alleging that they had used
excessive force against him in violation of his rights under the Eighth Amendment.2
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
2
In his complaint, Francis also raised claims concerning the medical care he received, but
because he has not challenged the District Court’s disposition of those claims, we will not
address them further. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler
Corp., 26 F.3d 375, 398 (3d Cir. 1994).
2
After a trial in which Francis and the officers testified, a jury found that none of the
officers had violated Francis’s Eighth Amendment rights. The District Court entered
judgment in the defendants’ favor, and Francis filed a timely notice of appeal.
Francis raises a number of arguments, but, as the defendants point out, he has
failed to preserve most of his claims. For instance, he objects to the fact that Lightning
did not testify at trial, but counsel elected not to call him after learning he would not
testify willingly. See Plaintiff’s Witness List, ECF No. 103 at 1 (“Another previously
named witness, Van Lightning, is incarcerated at USP Cumberland, but he is unwilling to
testify, so he will not be called, either.”). Likewise, while Francis argues that evidence of
his prior prison misconducts should not have been introduced at trial, counsel agreed to
the admission of this evidence based on her belief that the offenses “coincide with certain
racial stereotypes” and would therefore be “relevant to proving the racial motivation of
the wrongful conduct alleged in this litigation.” ECF No. 104 at 1. “When 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.” Lima v. Newark Police Dep’t, 658 F.3d 324, 333 n.2 (3d Cir.
2011) (alteration omitted) (quoting Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116–
17 (3d Cir. 1992)); see also Ohler v. United States, 529 U.S. 753, 755 (2000) (“a party
introducing evidence cannot complain on appeal that the evidence was erroneously
admitted”).3
3
To the extent that Francis complains about his trial counsel’s performance, those
complaints do not entitle him to any relief on appeal. See Nelson v. Boeing Co., 446
3
Francis also failed to preserve any challenge to the jury’s verdict because he did
not file a motion for judgment as a matter of law under Fed. R. Civ. P. 50(a) or a post-
verdict motion under Fed. R. Civ. P. 50(b). See Unitherm Food Sys., Inc. v. Swift-
Eckrich, Inc., 546 U.S. 394, 407 (2006) (“since respondent failed to renew its preverdict
motion as specified in Rule 50(b), there was no basis for review of respondent’s
sufficiency of the evidence challenge in the Court of Appeals”); Greenleaf v. Garlock,
Inc., 174 F.3d 352, 364 (3d Cir. 1999).
Francis next contends that his rights were violated when the jury’s verdict was
reported before he returned to the courtroom from lunch.4 While a plaintiff generally has
the right to be present at all proceedings, see Arrington v. Robertson, 114 F.2d 821, 823
(3d Cir. 1940), that right can be waived, see United States v. Bertoli, 40 F.3d 1384, 1398
(3d Cir. 1994); Taylor v. United States, 414 U.S. 17, 20 (1973) (per curiam). Here, by
Francis’s own account, his attorney, who was present, agreed that the verdict could be
read in his absence. See Reply Br. at 5; see also United States v. Johnson, 677 F.3d 138,
142 (3d Cir. 2012) (discussing lawyer’s waiver of client’s right to be present). Moreover,
F.3d 1118, 1119 (10th Cir. 2006) (“The general rule in civil cases is that the ineffective
assistance of counsel is not a basis for appeal or retrial.”); see also Kushner v. Winterthur
Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir. 1980).
4
The record does not reveal why Francis was absent. The defendants claim that counsel
for both sides returned to the courtroom when summoned by the Court, but that Francis
did not. After waiting for Francis for 30 minutes, the Court proceeded without him.
Meanwhile, Francis contends that his lawyer called him to tell him that the jury was
returning from its deliberations, but by the time he returned from lunch (he was no longer
incarcerated), counsel informed him the jury had already returned its verdict. He claims
that his lawyer “went along with” the Court and opposing counsel in allowing the verdict
to be read in his absence. Reply Br. at 5.
4
neither Francis nor his attorney filed any post-judgment motion concerning his absence.
See United States v. Gagnon, 470 U.S. 522, 528 (1985) (per curiam) (deeming claim
waived in part because of failure to file post-trial motion). Thus, Francis has waived this
argument.
Finally, Francis objects to the fact that there were no African-Americans on the
jury. However, a litigant is “not entitled to a jury of any particular composition.” Taylor
v. Louisiana, 419 U.S. 522, 538 (1975). Francis has not alleged the defense used
peremptory strikes in a racially discriminatory manner, see Batson v. Kentucky, 476 U.S.
79, 89 (1986), or that the jury was not selected from a fair cross section of the
community, see Duren v. Missouri, 439 U.S. 357, 364 (1979).5
Accordingly, we will affirm the District Court’s judgment.
5
To the extent that Francis claims the District Court incorrectly instructed the jury about
the excessive-force standard, we disagree. The District Court’s instructions are nearly
identical to our Model Instruction and entirely consistent with relevant case law. See
Hudson v. McMillian, 503 U.S. 1, 5–8 (1992); ECF No. 132 at 41–43 (jury instruction).
5