NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2408
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JEROME JUNIOR WASHINGTON,
Appellant
v.
MR. GILMORE, Superintendent; C.O. J. JONES;
CITY OF PITTSBURGH; STATE OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-18-cv-00342)
Magistrate Judge: Honorable Lisa P. Lenihan (by consent)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 16, 2023
Before: SHWARTZ, BIBAS, and PHIPPS, Circuit Judges
(Opinion filed: February 16, 2023)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Jerome Washington appeals after an adverse jury verdict in his
prison-civil-rights action. For the reasons detailed below, we will affirm the District
Court’s judgment.
Washington alleged that Corrections Officer Jason Jones used excessive force in
violation of the Eighth Amendment by tackling him to the ground after he did not comply
with Jones’s command to stand up and walk back to his cell from the day room.
Washington claimed that this attack was unprovoked; Jones claimed that in addition to
ignoring his instructions, Washington attempted to kick him. Washington sued Jones and
Superintendent Robert Gilmore, who allegedly failed to properly supervise Jones.
The District Court appointed counsel for Washington, and the case proceeded to
trial. At the close of Washington’s case, Jones and Gilmore moved for judgment as a
matter of law. The District Court granted the motion as to Gilmore and denied it as to
Jones. Washington did not make a similar motion. The jury then returned a verdict in
Jones’s favor, concluding that he did not use excessive force against Washington. See
ECF No. 172. Washington appealed.
We have jurisdiction under 28 U.S.C. § 1291, but the scope of this appeal is
narrow. After Washington filed his notice of appeal, he also filed motions under Fed. R.
Civ. P. 50(b) and 59, which the District Court denied. See ECF No. 188. However,
because Washington did not file a new or amended notice of appeal to encompass that
order, and the time to do so has now expired, we lack jurisdiction to review that order.
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). Further, because Washington did not file a Rule 50(a) motion
2
seeking judgment as a matter of law, he cannot now challenge the sufficiency of the
evidence supporting the jury’s verdict in favor of Jones. See Kars 4 Kids Inc. v. Am.
Can!, 8 F.4th 209, 220 (3d Cir. 2021).
Washington has also narrowed the scope of this appeal by failing to develop
arguments in his appellate brief. His opening brief largely does not acknowledge that a
trial occurred or refer to any rulings of the District Court. He spends most of his brief
reproducing a pretrial narrative statement and discovery requests that he says counsel
should have filed. See Br. at 3–17. Washington has forfeited any arguments that he has
not developed in his brief. See 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”). 1
The arguments that Washington has preserved plainly lack merit. He argues at
some length that appointed counsel performed ineffectively by failing to call certain
witnesses, present various evidence, and make additional arguments. However, as we
have explained to Washington in a prior appeal, “[t]he general rule in civil cases is that
the ineffective assistance of counsel is not a basis for appeal or retrial.” Washington v.
Pillia, 832 F. App’x 795, 797 n.3 (3d Cir. 2021) (per curiam) (quoting Nelson v. Boeing
1
This includes any challenge to the pretrial dismissal of defendants the Commonwealth
of Pennsylvania and the City of Pittsburgh.
3
Co., 446 F.3d 1118, 1119 (10th Cir. 2006)); see also Kushner v. Winterthur Swiss Ins.
Co., 620 F.2d 404, 408 (3d Cir. 1980).
Washington also argues that the video of the incident that was shown to the jury
was “fixed”—i.e., edited to show the events in a light more favorable to Jones. However,
as the District Court noted in denying this claim in its post-trial order, Washington did
not present this argument at trial, which typically forfeits review. See Leonard v.
Stemtech Int’l Inc., 834 F.3d 376, 400–01 (3d Cir. 2016). Moreover, in a pretrial
statement, Washington’s counsel stated that the video was authentic and admissible. See
ECF No. 160 at 9. Washington has provided no compelling reason to doubt counsel’s
assessment.
Finally, Washington has not meaningfully challenged the District Court’s grant of
judgment to Gilmore. Even assuming he has not forfeited this argument, he has failed to
show that the District Court erred in concluding that he had not presented evidence of
Gilmore’s personal involvement in the incident. See generally Dooley v. Wetzel, 957
F.3d 366, 374 (3d Cir. 2020). 2
We will therefore affirm the District Court’s judgment.
2
Washington failed to include in the record a copy of the trial transcripts, which further
undermines his efforts to challenge this ruling. 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).
4