                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3055
                                       ___________

                                    ANDRE JACOBS,
                                              Appellant

                                             v.

          DEBORAH BAYHA; JEREMY DELANO; ROBERT POTTER;
        JOE MOREHEAD; ROBERT HOLTZ, U.S. FEDERAL MARSHALS;
        MICHAEL COSTELLO; TROIANO; TAMMY CESARINO-MARTIN,
          CORRECTIONAL OFFICER; UNITED STATES OF AMERICA
                 ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 2:07-cv-00237)
                      District Judge: Honorable Joy Flowers Conti
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 8, 2015

             Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

                              (Opinion filed: July 14, 2015)
                                     ___________

                                        OPINION*
                                       ___________

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.
       On March 3, 2005, Andre Jacobs, a state prisoner, was at the United States

Courthouse in Pittsburgh to represent himself in a suit against a prison guard whom he

had accused of assault with a baton.1 Deputy United States Marshals and state

correctional officers were charged with transporting him, including during trips between

the ninth floor courtroom and a holding cell on the second floor. Jacobs sued eight of

them relating to his interactions with them that day.

       More specifically, Jacobs alleged that, during one recess in the trial, one of the

Deputy Marshals, Jeremy Delano, assaulted him without provocation in a courthouse

elevator by choking him and roughly banging him against the wall. He also claimed that

Daniel Troiano, a state correctional officer, approved the assault by not stopping it and by

patting Delano on the back at its conclusion. Jacobs also stated that after the trial ended,

another Deputy Marshal, Robert Potter, roughly grabbed his arm and moved him forward

in the courtroom, and then, once back in the elevator, punched him in the head, face, and

body. He further alleged that two other Deputy Marshals, Delano and Deborah Bayha,

and another state correctional officer, Michael Costello, punched him during the elevator

ride while Deputy Marshal Robert Holtz held him back. The remaining defendants,

Deputy Marshal Joe Morehead, Troiano and his colleague, Tammy Cesarino-Martin,

were witnesses who refused to intervene, according to Jacobs. Jacobs asserted that


1
 On March 4, 2005, the jury found in favor of the prison guard. The District Court
subsequently entered judgment, and Jacobs’s appeal was unsuccessful. See Jacobs v.
Heck, 364 F. App’x 744 (3d Cir. 2010) (per curiam).

                                              2
Delano knocked him unconscious during the assault. In his complaint, Jacobs claimed

excessive force, retaliation, conspiracy, and state law battery relating to the two elevator

incidents and other events of the day.

       Before Jacobs filed his complaint, another court considered the second elevator

incident. On March 22, 2005, a federal grand jury indicted Jacobs for knowingly and

forcibly assaulting, resisting, opposing, impeding, and interfering with Potter and Bayha

during the performance of their official duties (in violation of 18 U.S.C. § 111(a) & (b)).

At his trial, after the jury was instructed that it should not convict him if it concluded that

the officers used excessive force at any point during the incident, Supp. App. at 1392-93

(Trial Transcript of April 26, 2006, at 116-17), Jacobs was found guilty. He was

sentenced to 210 months in prison. We affirmed the criminal judgment. United States v.

Jacobs, 311 F. App’x 535, 539 (3d Cir. 2008).

       The Deputy Marshals filed a motion to dismiss the complaint, or, in the

alternative, a motion for summary judgment, basing their arguments, in part, on the

criminal judgment against Jacobs in relation to the second elevator incident.2 A

Magistrate Judge treated the filing as a motion for summary judgment and recommended

that it be granted. Considering the Eighth Amendment excessive force claim based on

the second elevator incident, the Magistrate Judge determined that it was barred by


2
  As we write primarily for the parties, who are familiar with the facts, we skip over the
details of the initial dismissal of Jacobs’s complaint for failure to prosecute and Jacobs’s
subsequent, successful appeal, see Jacobs v. Bayha, 297 F. App’x 98 (3d Cir. 2008).

                                               3
collateral estoppel and the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). The

Magistrate Judge concluded that if the claim was not entirely barred, the defendants were

otherwise entitled to summary judgment on it. The Magistrate Judge also recommended

summary judgment in favor of Holtz and Moorehead on the failure-to-intervene claim

arising out of the same incident as well as the other claims (save the claims against

Delano relating to the first elevator incident, which were not involved in the motion).

The District Court, in an apparent absence of objections, approved and adopted the

Magistrate Judge’s report and recommendation.

       Jacobs filed a motion for reconsideration in which he argued, inter alia, that he did

not file objections because he had not received the Magistrate Judge’s ruling.

Considering his evidence, the District Court afforded him de novo review of the report

and recommendation; however, the District Court ultimately denied reconsideration.3


3
  The District Court did not address Jacobs’s argument about the preclusive effect of
Heck because, even if Jacobs could prevail on that argument, he still could not succeed
on his motion. The District Court rejected Jacobs’s argument that summary judgment
was inappropriately granted sua sponte as to Eighth Amendment claims related to the
second elevator incident. The District Court concluded that any error was harmless,
ruling that even if Heck were applied only as narrowly as Jacobs advocated, there was
“no set of facts under which [Jacobs] could recover.” ECF 103 at 10. The District Court
further stated that it was “unnecessary . . . to treat . . . [the] motion as one for summary
judgment in order to dispose properly of [Jacobs’s] claims relating to that incident.” Id.
The District Court explained the evidence that was considered (trial transcripts)
constituted official court records of which the court could take judicial notice even on a
motion to dismiss. Considering the transcripts and Heck, the District Court stated that a
sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(b) was proper and that a review of the
facts showed that Jacobs “fail[ed] in his excessive force clam against the marshal
defendants” related to the second elevator incident. ECF 103 at 11 & 12. The District
Court also concluded that no reasonable trier of fact would find facts supporting liability
                                             4
       The three state correctional officers also filed a joint motion for judgment on the

pleadings.4 The Magistrate Judge recommended that the motion be converted into a

motion for summary judgment in some respects, and granted with respect to all claims

except for those claims against Troiano based on his alleged failure to intervene in the

first elevator incident. The Magistrate Judge stated that summary judgment should be

granted on the claims of excessive force and failure to intervene for the same reasons that

judgment was granted on those claims against the Deputy Marshals. Adopting the report

and recommendation with some modification, the District Court converted the motion to

one for summary judgment as it related to (1) a claim of excessive force against Costello;

(2) a claim of a failure to intervene by Costello and Cesarino-Martin; (3) a retaliation

claim against Costello, Cerino-Martin, and Troiano; and (4) a conspiracy claim against

them. The District Court then granted the motion except as to the failure-to-intervene

claim against Troiano.5




under the Eighth Amendment and that there was no set of facts on which Jacobs could
recover. Id. at 13-14. Rejecting Jacobs’s other arguments, the District Court summarized
that given Heck, Jacobs’s pleadings, and the trial transcripts, Jacobs was not entitled to
reconsideration.
4
  Subsequently, the parties realized that Troiano provided courtroom security on March 3,
2005, pursuant to a contract with the Marshals Service, and the U.S. Attorney’s Office
took over his representation.
5
  Additionally, the District Court dismissed any constitutional claims relating to a threat
by Costello without prejudice and dismissed a state law assault claim against Costello for
lack of jurisdiction.

                                             5
       Delano sought summary judgment as to the excessive force claim for the first

elevator incident and as to a retaliation claim. Also, Troiano moved for summary

judgment on the claim that he failed to intervene in the first elevator incident. Jacobs,

through counsel (who was appointed after the filings), opposed the motions, but he did

not address the retaliation claim. The Magistrate Judge recommended granting the

summary judgment motion as to the retaliation claim but otherwise denying the motion.

The District Court adopted the report and recommendation over Delano’s and Troiano’s

objections (Jacobs did not file any).

       Jacobs’s case went to trial on the two claims related to the first elevator incident

(the excessive-force claim against Delano and the failure-to-intervene claim against

Troiano). A jury, which was permitted to hear some information about the second

elevator incident (including that it had been determined that no excessive force was used

in that incident), but which was not told of Jacobs’s criminal conviction relating to it,6

found in favor of Delano and Troiano.

       Jacobs filed a “Motion for New Trial and/or to Alter or Amend Judgment.”7 He

argued that the jury verdict had been obtained by “fraud, misrepresentation, or


6
  Before trial, the District Court granted in part and denied in part Jacobs’s motion in
limine to preclude any reference to the second elevator incident.
7
 Jacobs filed the motion pro se shortly after judgment was entered in favor of Delano and
Troiano and while he was still represented by counsel. Initially, in light of Jacobs’s
continued representation, the District Court denied the motion without prejudice.
Subsequently, after permitting Jacobs’s counsel to withdraw from the matter, the District
Court vacated its order dismissing the motion and reinstated the motion on the docket.
                                              6
misunderstanding” because the District Court entered (unspecified) erroneous adverse

rulings against him based on the understanding that the prior jury in the criminal matter

had already decided whether excessive force was used against him on March 3, 2005.

Considering Jacobs’s motion as challenging the evidentiary rulings related to the second

elevator incident, the District Court ruled that relief was not warranted under Rule 59 or

Rule 60 of the Federal Rules of Civil Procedure.

       Jacobs appeals. He argues that the District Court erred in granting summary

judgment based on collateral estoppel grounds because the jury in his criminal case did

not decide the issue the District Court thought it had decided.8 More specifically, he


8
  The state correctional officers ask us to consider all claims against them waived,
including this claim relating to collateral estoppel, in a brief that Jacobs seeks to dismiss.
We deny the motion to dismiss the brief, but we also reject some of the arguments in it.
We acknowledge that, in his brief, Jacobs mentions the names of some of the Deputy
Marshals but he does not name the state correctional officers. And we also note that he
seems to focus on the rulings on the Deputy Marshals’ motion for summary judgment in
his brief. However, on the first page of his brief, he notes that he challenges the order
granting summary judgment to the state correctional defendants (he identifies by date the
ruling that pertains to them). At another point, he notes that there were nine persons in
the elevator during the second incident. And, most significantly, the ruling on the
collateral estoppel issue raised first in the Deputy Marshals’ motion for summary
judgment was the predicate for concluding that summary judgment in favor of the state
correctional officers was appropriate on the same basis. See, e.g., ECF 94 at 9 (“There is
no rational way to separate out Costello’s use of force from Potter’s and Bayha’s and,
accordingly, collateral estoppel bars Plaintiff’s claim against Costello for the same reason
it bars his claims against the United States Marshal Defendants.”) For these reasons, we
conclude that Jacobs’s arguments relating to the application of the doctrine of collateral
estoppel applies to the Deputy Marshals and the state correctional officers alike. We do
agree with the state correctional officers that Jacobs waived all other claims against them
by not raising them in his opening brief. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993) (citing Federal Rules of Appellate Procedure 28 and Local Rule 28.1); see also
Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (noting that pro se litigants are not
                                              7
contends that the jury made no ruling on whether excessive force was used after the

assault for which he was convicted. He argues that the District Court should have

considered separately whether he was subjected to excessive force in the second elevator

incident after he was subdued or “not resisting.”9 Second, Jacobs argues that the District

Court’s instruction to the jury regarding whether excessive force was used against him in

the second elevator incident was erroneous.10

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order

granting summary judgment is plenary; we apply the same standard that the District

Court used. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010).

Generally, we review jury instructions for abuse of discretion, but we exercise plenary

review when the issue is whether the instructions misstated the law. Armstrong v.

Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 245 (3d Cir. 2006). However, in the

absence of an objection to a jury instruction, we only look for a plain error that affects


exempt from the requirement to raise and argue issues on appeal).
9
  In making this argument, he refers to, inter alia, “video footage” of his exit from the
elevator. Although the Deputy Marshals assert that the video footage is not dispositive of
any claim on appeal, they have filed a motion to lodge with us the DVD that reproduces
the footage presented as an exhibit at Jacobs’s criminal trial. We grant the motion.
10
   Initially, Jacobs also argued that he was wrongly denied a trial on the retaliation claim
against Delano. However, after considering the federal Appellees’ response, which noted
his counsel’s lack of opposition to the motion for summary judgment on the retaliation
claim and the absence of objections to the recommendation that judgment be granted in
Delano’s favor on it, Jacobs conceded that the claim had been waived. See also Birdman
v. Office of the Governor, 677 F.3d 167, 172-73 (3d Cir. 2012) (declining to consider
causes of action presented for review on appeal that were not argued before the district
                                              8
substantial rights. See Fed. R. Civ. P. 51(d)(2). We may affirm on any basis supported

by the record. See Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1089 n.10 (3d

Cir. 1988).

       We consider Jacobs’s second issue (his claim about the jury instruction) first. His

counsel did not preserve the issue by objecting to the jury instruction at trial or in any

post-trial motion (and Jacobs, once pro se, did not take it up in his motion for a new trial).

Counsel initially proposed changes to the instruction, but, as we have explained

previously, “merely proposing a jury instruction that differs from the charge given is

insufficient to preserve an objection.” Franklin Prescriptions, Inc. v. N.Y. Times Co.,

424 F.3d 336, 339 (3d Cir. 2005). And counsel ultimately accepted the instruction as

written. See Supp. App’x 561 (Trial Transcript of March 4, 2014, at 5).

       We cannot conclude that the jury instruction introduced a plain error that affected

Jacobs’s substantial rights. Because the defendants wanted to question Jacobs regarding

a letter he had written in March 2005 about the events of March 3, 2005 (to impeach him

regarding his failure to mention the first elevator incident sooner and to cross-examine

him about his claimed injuries), the Court issued a limiting instruction that included the

following:

       The Court is instructing you that after the incident involved in this case,
       there was a second physical altercation on March 3, 2005, involving US
       marshals and Mr. Jacobs. As a result of the second altercation, Mr. Jacobs
       was injured, and he claimed that he was the victim of excessive force by the


court). Reply at ¶ 1.
                                              9
       United States marshals. In a court proceeding it was determined that
       excessive force was not used in the second altercation.

Id. at 591 (Trial Transcript of March 4, 2014, at 35). That instruction is not plainly

erroneous in that a jury, in Jacobs’s criminal case, was instructed that they were to find

him not guilty if they accepted his argument that the Deputy Marshals used excessive

force during the second elevator incident. Id. at 1392-93 (United States v. Jacobs, Trial

Transcript of April 26, 2006, at 116-17). And Jacobs’s jury also was instructed that in

order to find him guilty, it had to find that, “at the time of [Jacobs’s] acts,” the Deputy

Marshals were engaged in the performance of their official duties (a finding that would

be inconsistent with the use of excessive force). Id. A jury is presumed to follow the

instructions given. Zafiro v. United States, 506 U.S. 534, 540 (1993).

       Jacobs argues that the instruction was “highly prejudicial.” Quoting from a

transcript of a pretrial conference, he maintains that the Deputy Marshals sought the

instruction to undermine his credibility. However, the part of the transcript that Jacobs

cites discusses the reasons why the Deputy Marshals sought to introduce the letter, not

the reasons for the limiting instruction.11 The introduction of the letter at trial is not at

issue in this appeal (Jacobs does not challenge its admissibility). Otherwise, the




11
   The Deputy Marshals pressed for an instruction that did not as narrowly limit
consideration of the other elevator incident. For instance, when Jacobs’s counsel asked
to include the explanation that the letter was in response to the indictment for the second
incident, the Deputy Marshals sought to make the jury aware of the related conviction.
Supp. App. at 499 (Trial Transcript of March 3, 2014, at 42).
                                               10
instruction did not bear on the consideration of whether excessive force was used in the

first elevator incident (the only incident at issue in the trial).

       Jacobs’s remaining argument is that the District Court erred in awarding summary

judgment to the defendants on the basis that collateral estoppel barred the Eighth

Amendment claims relating to the second elevator incident. First, we note, as the Deputy

Marshals do, that the District Court presented alternative bases for granting summary

judgment, only one of which Jacobs challenges. As we noted previously, an appellant

waives issues not raised in the opening brief. See Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th

Cir. 1995). However, even if we construe his brief to more generally include a challenge

to the rulings beyond a challenge to the collateral estoppel reasoning, we must reject

Jacobs’s appeal.

       We agree with the District Court that although the doctrine of Heck v. Humphrey

does not necessarily bar an action for excessive force by a person convicted of assault,

see, e.g., Lora-Pena v. FBI, 529 F.3d 503, 506 (3d Cir. 2008) (per curiam), it can operate

as a bar where specific factual allegations in the complaint are necessarily inconsistent

with the validity of the conviction. See McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir.

2006). As we noted earlier, to conclude that Jacobs’s actions violated § 111, the jury in

his criminal case was instructed that it had to find that the Deputy Marshals were engaged

in the performance of their official duties (a finding inconsistent with the use of excessive

force) “at the time of [Jacobs’s] acts.” Supp. App. at 1392-93 (United States v. Jacobs,


                                                11
Trial Transcript of April 26, 2006, at 116-17). We have previously summarized the acts

related to the second elevator incident as follows:

       Several Deputy Marshals . . . began to escort Jacobs back to his holding
       cell, and one of them handcuffed him with his hands in front of him so that
       he could carry his legal papers. When Jacobs refused to enter the elevator
       on his own, Deputy Potter and a state correctional officer began to force
       him into the elevator. As they entered, Jacobs threw his legal papers at
       Deputy Potter’s face and attacked Deputy Potter with his handcuffs. One of
       Jacobs’ blows injured Deputy Potter’s wrist severely enough that surgery
       was required. Jacobs continued to attack the Deputy Marshals in the
       elevator, requiring them to carry him to his holding cell.

Jacobs, 311 F. App’x at 536. To succeed on his Eighth Amendment claims, Jacobs

would have to rely on allegations that are inconsistent with his conviction based on acts

during the same incident. Here, while the conviction resulted from acts directed

specifically toward two of the Deputy Marshals, it precludes the Eighth Amendment

action more generally.

       The “core judicial inquiry,” in a suit for excessive force is “whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (citation and

quotation marks omitted). The evaluated factors include “the need for application of

force, the relationship between that need and the amount of force used, the threat

reasonably perceived by the responsible officials, and any efforts made to temper the

severity of a forceful response.” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citation and

quotation marks omitted). Based on the previous judicial proceedings (and the facts on

which all parties agreed), it was established that nine persons (five wearing guns on their
                                             12
belts) were in a courthouse elevator when Jacobs attacked two Deputy Marshals with a

weapon (his handcuffs, cf. Shreve v. Franklin Cnty, 743 F.3d 126, 130 (6th Cir. 2014)

(noting that a sheriff’s deputy considered a loose handcuff a deadly weapon)). In this

case, it cannot be said, consistently with the earlier proceedings, that the force used by the

defendants was more than required to maintain or restore discipline.12 Although Jacobs

argues strenuously that there was a point after the conclusion of the acts for which he was

convicted that he was subjected to additional, excessive force in the elevator, his

separation of the events is inconsistent with the previous account of the altercation. See

Jacobs, 311 F. App’x at 536 (“Jacobs continued to attack the Deputy Marshals in the

elevator, requiring them to carry him to his holding cell.”). We thus conclude that the

District Court properly ruled in favor of the defendants on the Eighth Amendment

claims.13


12
   We note additionally that, in his own affidavit in this action, Jacobs described grabbing
Deputy Marshal Bayha (who, as was noted in the criminal trial, had a holstered handgun
within Jacobs’s reach) during the altercation. And we note that the extent of Jacobs’s
injuries (the facts of which are established and undisputed) also supports the absence of
excessive force. The incident resulted in, at most (given that Jacobs could not say which
injuries occurred when), “a small hematoma to his right cheekbone, a small superficial
scrape to his lower lip, [and] red areas on both wrists.” Supp. App. at 1265 (Trial
Transcript April 25, 2006, at 177). See Hudson, 503 U.S. at 7 (explaining that the “extent
of injury suffered by an inmate is one factor that may suggest ‘whether the use of force
could plausibly have been thought necessary’ in a particular situation, ‘or instead evinced
such wantonness with respect to the unjustified infliction of harm as is tantamount to a
knowing willingness that it occur’”) (quoting Whitley v. Albers, 475 U.S. 312, 321
(1986)).
13
  Although we have been considering the Eighth Amendment excessive force claims, in
the absence of excessive force, there was no failure to protect. Judgment was also
                                             13
       For these reasons, we will affirm the District Court’s judgment.14




properly granted on the failure-to-protect claims.
14
  As we noted previously, we deny Jacobs’s motion to dismiss the brief filed by
Cesarino-Martin and Costello, and we grant the Deputy Marshals’ motion to lodge a
DVD as an exhibit.

                                            14
