                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2002

Perricone v. Clarke
Precedential or Non-Precedential:

Docket 99-1259




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Recommended Citation
"Perricone v. Clarke" (2002). 2002 Decisions. Paper 24.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/24


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                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                              ___________

                              No. 99-1259
                              ___________


                            JACOB PERRICONE,
                                            Appellant

                                  v.

         DANIEL CLARKE, CORRECTIONS    LT., individually;
          ANTHONY BOVO, CORRECTIONS    LT., individually;
      WILLIAM MOTTIQUA, CORRECTIONS    OFFICER, individually;
      GREGORY MOHRING, CORRECTIONS,    OFFICER, individually


         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                D.C. Civil Action No. 96-cv-06248
                    (Honorable Jacob P. Hart)
                       ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        December 13, 2001

           Before:    SCIRICA and BARRY, Circuit Judges,
                     and MUNLEY, District Judge*



     *The Honorable James M. Munley, United States District Judge for the
Middle
District of Pennsylvania, sitting by designation.

                        (Filed January 17, 2002)

                          __________________

                          OPINION OF THE COURT
                           __________________

PER CURIAM.

     Plaintiff Jacob Perricone, an inmate at the State Correctional
Institution at
Graterford, brought a 42 U.S.C.    1983 action alleging that correctional
officers Daniel
Clarke, Anthony Bovo, William Mottiqua, and Gregory Mohring violated his
right to be
free from cruel and unusual punishment and excessive force under the
Eighth and
Fourteenth Amendments. A jury returned a verdict in favor of defendants.
Perricone
now appeals.
     Perricone contends he was denied the right to a fair trial when he
was allegedly:
"(1) escorted to the witness stand by a prison guard who stood next to
him, between him
and the jury, during his testimony; (2) the court compelled him to appear
before the jury
panel in prison garb; and (3) one or more jurors inadvertently saw him in
handcuffs in a
courthouse corridor." (Appellant's Br. at 2). No objection to these
matters was made on
record. Id. at 5.
     Defendants contend we lack jurisdiction to hear this appeal because
it is based on
facts not in the record. If we consider the appeal, defendants contend a
new trial is not
warranted because "none of the events allegedly seen by the jury . . .
told the jury
anything it did not already know from the nature of the case and
Perricone's own
testimony. (Appellee's Br. at 11).
                                I.
     We have jurisdiction under 28 U.S.C.    1291. Courts of appeal
"should exercise
their discretion to 'correct a plain forfeited error affecting substantial
rights if the error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.'"
Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F. 3d 1269, 1289
(3d Cir.
1995) (quoting United States v. Olano, 507 U.S. 725 (1993)) (internal
citation omitted).
                              II.
     At issue is whether it is appropriate to exercise our discretion to
correct a plain
error because the error affected substantial rights. Olano, 507 U.S. at
732. See also
Fashauer, 57 F.3d at 1289 ("If anything, the plain error power in the
civil context which
is judicially rather than statutorily created    should be used even more
sparingly.").
     Perricone, a prison inmate, brought a    1983 action against prison
guards. It was
no secret to the jurors that Perricone was a Graterford inmate serving a
ten-year sentence.
This was evident from the stipulated facts read to the jury and from
Perricone's own
testimony. The alleged events did not tell the jury anything they had not
already learned
from the evidence or the nature of the case. Furthermore, there was no
evidence that any
possible error affected substantial rights. The District Court properly
instructed the jury
on how to address the evidence. There is no indication the fairness or
integrity of the
judicial proceeding was seriously affected.
III.
        For these reasons, the judgment of the District Court will be
affirmed.


TO THE CLERK:

         Please file the foregoing opinion.
