                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2006

Hamilton v. Leavy
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2059




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Recommended Citation
"Hamilton v. Leavy" (2006). 2006 Decisions. Paper 239.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/239


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                                     NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       NO. 05-2059
                    ________________

                 JEROME K. HAMILTON,

                              Appellant

                                v.


           FAITH LEAVY; PAMELA FAULKNER;
         WILLIAM QUEENER; FRANCES LEWIS;
          FRANCES COCKROFT; JERRY BORGA;
         RICHARD SHOCKLEY; GEORGE DIXON;
         JACK STEPHENSON; DEBORAH CRAIG;
             JOANNE SMITH; DENNIS LOEBE;
                   ELDORA TILLERY
         ____________________________________

       On Appeal From the United States District Court
                 For the District of Delaware
                 (D.C. Civ. No. 94-cv-00336)
          District Judge: Honorable Kent A. Jordan
       _______________________________________

         Submitted Under Third Circuit LAR 34.1(a)
                    September 5, 2006


Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES.

                 (Filed: November 7, 2006)

                _______________________

                       OPINION
                _______________________
PER CURIAM

       Jerome Hamilton filed suit pursuant to 42 U.S.C. § 1983 against Delaware

correctional officers and officials, claiming that he suffered cruel and unusual punishment

because of their deliberate indifference to his health and welfare. More specifically, he

claimed that their disregard of risks to his safety led to his serious injury from an assault

by another inmate.1 His suit continued over many years, and he ultimately tried (with the

assistance of appointed counsel) his deliberate indifference claim against nine defendants.

A jury concluded that his rights had not been violated, and the District Court entered

judgment in favor of the Defendants. After the jury entered its verdict, Hamilton filed a

motion to proceed pro se and Hamilton’s counsel filed a motion to be excused from

further representation of Hamilton. After a hearing, the District Court permitted

Hamilton’s counsel to withdraw. Hamilton, proceeding pro se, appeals.2

       Hamilton filed his notice of appeal after the jury verdict but one day before the

District Court entered final judgment. Nonetheless, we have jurisdiction pursuant to 28

U.S.C. § 1291. See Fed. R. App. P. 4(a)(2); FirsTier Mortgage Co. v. Investors



       1
        We refer those who desire a more complete description of Hamilton’s claims and
the history of this case to our published opinions in Hamilton’s earlier appeals, namely
Hamilton v. Leavy, 117 F.3d 742 (3d Cir. 1997), and Hamilton v. Leavy, 322 F.3d 776
(3d Cir. 2003).
       2
        In his brief, Hamilton again requests that we appoint him counsel. For the reasons
stated in our orders of August 16, 2005, and March 13, 2006, we decline to appoint
counsel.

                                               2
Mortgage Ins. Co., 498 U.S. 269, 276 (1991). Although Hamilton listed 19 grounds for

appeal in his notice of appeal, we examine only those issues he raised in his brief. See In

re Surrick, 338 F.3d 224, 237 (3d Cir. 2003) (holding that the failure to identify or argue

an issue in an opening brief constitutes waiver of that argument on appeal).

       Hamilton presents the following arguments on appeal: (1) the District Court

abused its discretion by instructing the jurors to rely on their collective recollection of the

testimony in response to a jury question about a date of a reprimand; (2) the jury verdict

was against the weight of the evidence; (3) the District Court erred by not appointing new

counsel for Hamilton when Hamilton’s counsel filed a motion to withdraw from the case;

and (4) the District Court erred by allowing Hamilton’s counsel to withdraw. We

consider each argument in turn.

       As no objection was made to the District Court’s instruction in response to the jury

question (all parties agreed that the instruction was proper (N.T. at D-33)), we exercise

review over Hamilton’s first issue only sparingly. See Watson v. SEPTA, 207 F.3d 207,

212 (3d Cir. 2000). We would overturn the verdict only if the “‘the error is fundamental

and highly prejudicial or if the instructions are such that the jury is without adequate

guidance on a fundamental question and our failure to consider the error would result in a

miscarriage of justice.’” Id. We hold that the District Court made no such error in its

instruction. We note that although the reprimand was referred to in testimony (N.T. at B-

174, C-104-10), the date of the reprimand was not.



                                               3
       We do not review Hamilton’s second issue. His counsel did not move for

judgment as a matter of law at the close of the evidence. The inaction waived Hamilton’s

right to challenge on appeal the sufficiency of the evidence. See Unitherm Food Sys. v.

Swift-Eckrich, Inc., 126 S. Ct. 980, 986 (2006); Yohannon v. Keene Corp., 924 F.2d

1255, 1262 (3d Cir. 1991).

       Furthermore, the District Court did not err in permitting Hamilton’s counsel to

withdraw from the case and by not appointing new counsel for Hamilton after the trial

had ended. Hamilton had no right to counsel in a civil suit. See Tabron v. Grace, 6 F.3d

147, 153 (3d Cir. 1993). Nonetheless, he benefitted from the help of a series of

appointed attorneys. It was in part on Hamilton’s requests (in writing and orally, at a

hearing before the District Court) that the District Court permitted counsel to withdraw

and Hamilton to proceed pro se. Hamilton cannot now be heard to complain because the

District Court granted his requests.

       For the reasons stated, we will affirm the District Court’s order.
