NOT PRECEDENTIAL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.

2 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

. 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,

, 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.,

(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. --,

, 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,

, at *2

3 n.2 (3d Cir. Feb. 16, 2023) (per curiam); Washington v. Pillia,

, 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

(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.,

(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,

(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.,

(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

4 not entitle him to any relief on appeal. See Nelson v. Boeing Co.,

(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.,

(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,

, 508–09 (3d Cir. 2017); Est. of Simpson v. Gorbett,

(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,

(3d Cir. 1993).

5