                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 21 1997
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    SANTIAGO TAPIA,

               Plaintiff-Appellant,

    v.                                                 No. 97-2049
                                                  (D.C. No. CIV-95-1160)
    KRIS HENIGMAN, NM Department                         (D. N.M.)
    of Corrections Prison Guard,

               Defendant-Appellee,

         and

    JOHN THOMAS, Warden, officially
    and individually,

               Defendant.




                            ORDER AND JUDGMENT *



Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant Santiago Tapia, a former state prison inmate, brought

this § 1983 action alleging that defendant-appellee Kris Henigman, a correction

officer, maliciously beat and kicked him, causing serious and permanent injuries.

The jury returned a verdict in favor of defendant. Proceeding pro se on appeal,

Tapia seeks a new trial on the grounds that the verdict is attributable to the

ineffective assistance of his counsel.

      The Sixth Amendment right to effective assistance of counsel does not

apply to civil cases. See MacCuish v. United States, 844 F.2d 733, 735 (10th Cir.

1988). In civil cases, the “remedy for allegedly incompetent representation is a

malpractice suit against [the] trial attorney. Any such incompetence provides no

basis for granting . . . a new trial.” Id. at 735-36.

      Accordingly, the judgment of the United States District Court for the

District of New Mexico is AFFIRMED. The mandate shall issue forthwith.

                                                        Entered for the Court


                                                        J. Thomas Marten
                                                        District Judge


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