Jerome Washington v. Gilmore ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-2309
____________
JEROME JUNIOR WASHINGTON,
Appellant
v.
SUPERINTENDENT MR. GILMORE; C.O. COMER;
CITY OF PITTSBURGH
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-18-cv-00340)
Magistrate Judge: Honorable Lisa P. Lenihan
_____________
No. 22-2859
_____________
JEROME JUNIOR WASHINGTON,
Appellant
v.
JOHN E. WETZEL, Overall Prison Official and Corrections of Pennsylvania;
SGT. WILLIAM CHESMER; GILMORE, Warden and Superintendent,
sued in their individual capacities and official capacities
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-18-cv-01209)
Magistrate Judge: Honorable Lisa P. Lenihan
_____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 3, 2023
Before: SHWARTZ, BIBAS, and MONTGOMERY-REEVES, Circuit Judges
(Opinion filed: July 6, 2023)
___________
OPINION *
___________
PER CURIAM
Pro se appellant Jerome Washington appeals after adverse jury verdicts in two
prison-civil-rights actions. For the reasons detailed below, we will affirm the District
Court’s judgments.
In 2018, Washington filed two related complaints. In each complaint, he alleged
that a correctional officer had violated his Eighth Amendment rights by using OC spray
on him. In W.D. Pa. Civ. No. 2:18-cv-00340, Correctional Officer Comer claimed that
he discharged OC spray into Washington’s cell after Washington had ignored multiple
orders to stop engaging in self-harm (he was cutting himself). In W.D. Pa. 2:18-cv-
01209, Sergeant Chesmer claimed that he used OC spray because Washington had
behaved aggressively toward him and tried to pull his hands out of their restraints. The
parties consented to proceed before a Magistrate Judge, who appointed counsel to
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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represent Washington. Each case proceeded to trial. Counsel represented Washington in
No. 2:18-cv-00340, while Washington elected to proceed pro se in No. 2:18-cv-01209.
In both cases, the jury found in favor of the defendant, concluding that the defendant did
not use excessive force against Washington (and in No. 2:18-cv-00340, that the defendant
was not deliberately indifferent to Washington’s medical needs). Washington appealed
in each action, and we consolidated the two cases.
We have jurisdiction under 28 U.S.C. § 1291. However, because of the way
Washington has litigated these cases, there is little for us to review. In both actions,
Washington filed motions under Fed. R. Civ. P. 50(b) and 59, which the District Court
denied. See No. 2:18-cv-00340, ECF No. 192; No. 2:18-cv-01209, ECF No. 246.
Washington filed his notices of appeal before the District Court ruled on those motions;
because he did not file a new or amended notice of appeal to encompass those orders, and
the time to do so has now expired, we lack jurisdiction to review them. See Fed. R. App.
P. 4(a)(4)(B)(ii); Manivannan v. U.S. Dep’t of Energy, 42 F.4th 163, 169 n.1 (3d Cir.
2022). As a result, we cannot review a challenge to the sufficiency of the evidence. See
generally Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006)
(explaining that a party “may not challenge the sufficiency of the evidence on appeal on
the basis of the District Court’s denial of its Rule 50(a) motion”); Dupree v. Younger, --
S. Ct. --, 2023 WL 3632755, at *4 (May 25, 2023).
Further, despite being repeatedly informed of his obligation to provide a copy of
the trial transcripts, see Washington v. Gilmore, No. 22-2408, 2023 WL 2041612, at *2
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n.2 (3d Cir. Feb. 16, 2023) (per curiam); Washington v. Pillia, 832 F. App’x 795, 797 n.2
(3d Cir. 2021) (per curiam), Washington has failed to do so (or to move for the
production of transcripts at government expense, see 28 U.S.C. § 753(f)), which prevents
us from meaningfully reviewing any issues that arose during trial. See Fed. R. App. P.
10(b)(2); 3d Cir. L.A.R. 11.1; Lehman Bros. Holdings v. Gateway Funding Diversified
Mortg. Servs., L.P., 785 F.3d 96, 101 (3d Cir. 2015).
Finally, Washington’s briefs barely acknowledge that trials occurred and fail to
meaningfully raise any claims of error. Rather, the briefs read like complaints, where
Washington simply recounts his version of the events in question. (Indeed, he ends his
brief in C.A. No. 22-2859 by asking the Court to grant the relief identified in “this
complaint,” Br. at 14.) And his claims of legal error are conclusory, undeveloped, and
oftentimes unrelated to his cases (e.g., both briefs say, “the conviction was based entirely
upon evidence the prosecutor knew was false,” C.A. No. 22-2859, Br. at 11; C.A. No. 22-
2309, Br. at 8). This type of presentation is not adequate to preserve an issue for appeal.
See, e.g., In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (“[B]ecause they fail to develop
[two] argument[s] in their opening brief, the Court holds that the [appellants] have
forfeited these claims.”); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (noting that pro se litigants “must abide by the same rules that apply to all other
litigants”).
Even construing Washington’s briefs generously, we discern no meritorious claim.
He criticizes counsel’s performance at trial, see C.A. No. 22-2859, Br. at 4, but that does
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not entitle him to any relief on appeal. See Nelson v. Boeing Co., 446 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). He also seems to contend that the defendants did
not produce complete videos of the incidents, see C.A. No. 22-2859, Br. at 14, but the
District Court noted that all issues concerning video footage had “been resolved prior to
trial” and that the jury was shown extensive video footage, ECF No. 246 at 8, and
Washington has not identified any prejudicial error. Washington also objects to a jury
instruction in which the Court apparently told the jurors that a violation of prison policy
is not, in itself, a constitutional violation. That statement of law is accurate, see Steele v.
Cicchi, 855 F.3d 494, 508–09 (3d Cir. 2017); Est. of Simpson v. Gorbett, 863 F.3d 740,
746 (7th Cir. 2017), and, since Washington has not produced the trial transcripts, we are
unable to evaluate the precise language of the instruction.
Accordingly, Washington has presented no basis to upset the decisions of the
District Court, and we will affirm the Court’s judgments. 1
1
After filing his brief in C.A. No. 22-2858, Washington filed a motion for appointment
of counsel. Because he has not shown that his appeal has arguable merit, the motion is
denied. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
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