                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2139
                                       ___________

                       KIMZIAH MORFIAH, as Administratrix of
                   Estate of Adolphus K. Pinkney and in her own right

                                             v.

CITY OF PHILADELPHIA; PO WALI SHABAZZ, individually and in his capacity as a
Philadelphia Police Officer; JOHN DOE POLICE OFFICERS, individually and in their
                       capacities as Philadelphia Police Officers

                                        Kimziah Morfiah,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Civil Action No. 13-cv-05995)
                     District Judge: Honorable Mitchell S. Goldberg
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 3, 2016
               Before: FISHER, SHWARTZ and COWEN, Circuit Judges

                              (Opinion filed August 5, 2016)
                                      ___________

                                        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

       Kimziah Morfiah, proceeding pro se, appeals from a judgment entered after a jury

trial in the United States District Court for the Eastern District of Pennsylvania. For the

reasons that follow, we will affirm.

       The parties are familiar with the facts, so we will only briefly revisit them here.

On October 15, 2011, Philadelphia police officers Joseph Rapp and James Boone

responded to a radio call reporting a person with a gun. When the officers arrived at the

scene, they encountered Morfiah’s son, Adolphus K. Pinkney. Officer Boone realized

that Pinkney was carrying a revolver and yelled, “Gun! Gun!” Pinkney fired at Officer

Rapp. The officers returned fire, killing Pinkney. Morfiah, proceeding in her own right

and as administratrix of Pinkney’s estate, filed a counseled civil lawsuit against the City

of Philadelphia and the police officers who were involved in the shooting. Following a

six-day trial, the jury returned a verdict in favor of the defendants. Morfiah, proceeding

pro se, appealed.

       Morfiah argues that she is entitled to a new trial because the jury’s verdict was

against the weight of the evidence. In particular, she claims that the jury failed to

consider inconsistencies in certain witnesses’ testimony, which affected their credibility.

But because Morfiah did not file a motion for a new trial in the District Court, the issue is

waived. See Lesende v. Borrerro, 752 F.3d 324, 334 (3d Cir. 2014) (“The City’s failure

to seek [a new trial on liability] from the District Court results in the waiver of that issue

on appeal.”). Although we have the discretion to review waived issues, we have limited

such review to cases presenting exceptional circumstances. Webb v. City of Phila., 562

                                               2
F.3d 256, 263 (3d Cir. 2009). Morfiah’s challenge to the weight of the evidence does not

present an exceptional circumstance. Indeed, the jury’s verdict was supported by the

testimony of the police officers, a pathologist, and a crime scene investigator. Cf.

Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996) (en

banc) (holding that a new trial should be granted only where the “great weight” of the

evidence cuts against the verdict and “where a miscarriage of justice would result if the

verdict were to stand.”). According to the testimony of those witnesses, the officers shot

Pinkney immediately after he fired at them with a revolver, Pinkney was not shot after he

died, and his body was not dragged across the street. See Tennessee v. Garner, 471 U.S.

1, 11-12 (1985) (providing that it is not constitutionally unreasonable to use deadly force

where a police officer has good reason “to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or others.”).

       Morfiah further alleges that the paramedics who responded to the shooting were

negligent. We will not consider this claim, however, because it was not raised in the

District Court. See Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994).

Furthermore, although Morfiah complains about her attorney’s performance at trial, there

is no right to effective counsel in a civil case. See Kushner v. Winterthur Swiss Ins. Co.,

620 F.2d 404, 408 (3d Cir. 1980). Rather, the remedy in such a case is a malpractice

action against the attorney. Id.

       Morfiah also raises several challenges to the trial judge’s management of the trial.

For instance, she alleges that the trial judge did not properly respond when a juror fell

asleep during opening statements, when one of her witnesses had an outburst at the end of

                                               3
the day that was overheard by the jurors,1 and when a defendant police officer

“aggressively stared” at her family and witnesses. We conclude, however, that the trial

judge appropriately addressed each of these incidents. See Duquesne Light Co. v.

Westinghouse Elec. Corp., 66 F.3d 604, 609 (3d Cir. 1995) (stating that a District Court’s

“decisions in its management of a trial [are reviewed] for abuse of discretion.”).

       The trial judge and counsel for both parties discussed the sleeping juror.

Morfiah’s attorney agreed that the juror did not need to be removed and did not object to

the trial judge’s proposal that the clerk remind the juror at the beginning of each day not

to sleep. With respect to the outburst, which involved a witness loudly indicating that he

was being taunted by a defendant, the trial judge questioned each of the jurors about what

they heard, about the witness’s statements outside the courtroom, and about whether they

could continue to be fair and impartial. After the jurors said that they could, defendants’

attorney stated that he would not move for a mistrial and the trial judge permitted the case

to go forward. Finally, according to reports made to the trial judge, one of the police

officer defendants aggressively stared at Morfiah’s family and witnesses. In response,

the trial judge told the officer that “[i]f it is occurring, I would ask you to stop.” The trial

judge further noted that “this is a volatile situation” and warned the officer that “we could

end up with a mistrial.” After being questioned by the trial judge, none of the jurors

indicated that they had observed any behavior by any of the parties that gave them cause

for concern. Morfiah’s attorney did not object to this resolution. Under these


1
  Following this outburst, the witness attempted to apologize to the jurors as they exited
the courtroom.
                                               4
circumstances, we conclude that the trial judge properly addressed the sleeping juror,

reasonably concluded that the jury could render an impartial verdict, and appropriately

addressed the allegations concerning the officer’s behavior.

      For the foregoing reasons, we will affirm the judgment of the District Court.




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