                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2007

Mitchell v. Henry
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2978




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"Mitchell v. Henry" (2007). 2007 Decisions. Paper 200.
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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 03-2978


                                 WALLACE MITCHELL,
                                              Appellant

                                             v.

                                          HENRY


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           D.C. Civil Action No. 96-cv-00566
                           (Honorable Christopher C. Conner)


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 16, 2007

     Before: SCIRICA, Chief Judge, HARDIMAN and ALDISERT, Circuit Judges.

                                (Filed: November 26, 2007)



                               OPINION OF THE COURT


PER CURIAM.

       In 1996, Wallace Mitchell filed a complaint pro se, alleging that Jeffrey Henry, a

correctional officer at the State Correctional Institution in Dallas, Pennsylvania, sexually
harassed and assaulted him. Mitchell claimed that the alleged mistreatment constituted

cruel and unusual punishment.

       For a few years, Mitchell represented himself, submitting among his many motions

a motion for leave to file an amended complaint and a proposed amendment to the

complaint. The District Court addressed Mitchell’s motion to file an amended complaint

at a pre-trial conference in 2002. Speaking to Mitchell, the District Court stated the

following:

       As a practical matter . . . the original complaint is amended, cause of action
       to include that the actions of the Defendant denied the Plaintiff due process.
       The original complaint is amended at Page 5. Relief sought to include that
       the Plaintiff seeks a declaratory judgment that the Defendant violated the
       Plaintiff’s Constitutional Rights.

App. (second unnumbered page of “Attachment No. 1”). Subsequently, Mitchell’s

amendment was entered on the docket. Later, the District Court appointed counsel, who

oversaw discovery and represented Mitchell at a trial before a jury.

       At the trial, which spanned four days, Mitchell and a couple of his fellow inmates

testified that Henry sexually harassed and assaulted Mitchell. Henry and his co-workers

testified to the contrary. Also, a forensic document examiner testified that grievances

relating to Mitchell’s claims were fabrications.

       The District Court instructed the jury, explaining that Mitchell claimed that Henry

violated his right to be free of cruel and unusual punishment under the Eighth

Amendment and that Henry denied the claim. In describing what Mitchell had to show to

win relief through 42 U.S.C. § 1983, the District Court further stated that Mitchell

                                             2
asserted one claim, the Eighth Amendment violation, not two. Mitchell’s counsel did not

object to the charge. After deliberating for less than an hour, the jury returned with a

verdict against Mitchell. Specifically, the jury determined that Mitchell had not proved

by a preponderance of the evidence that Henry had harassed or touched him a sexual

manner. Supp. App. 84. Mitchell’s counsel filed no post-verdict motions. The District

Court subsequently entered judgment in favor of Henry and against Mitchell.

       On July 8, 2003, Mitchell’s attorney filed in the District Court a motion to

withdraw as counsel and a notice of appeal. The docketing and filing fees on appeal were

paid. On August 13, 2003, Mitchell’s counsel filed a motion to withdraw in this Court.

On August 15, 2003, the District Court granted the motion to withdraw. On August 20,

2003, we received a letter notifying us of the District Court’s action. In August 2006, the

Clerk of Court entered an order denying as unnecessary counsel’s motion to withdraw in

light of the District Court’s order.

       In his briefs, Mitchell argues that the District Court erred by not putting his due

process claim before the jury. Additionally, Mitchell has filed a “motion for a ruling on

jurisdiction regarding counsel,” in which he essentially argues that the District Court was

without jurisdiction to rule on his attorney’s motion to withdraw as counsel because his

appeal had been initiated. Henry contends that no issues have been preserved for appeal

because Mitchell’s counsel raised no objections at or after trial. Henry further argues that

even if the issue were preserved, the District Court did not err in instructing the jury



                                              3
because Mitchell had no actionable due process claim. Henry does not respond to

Mitchell’s motion.

       First, we conclude that the District Court’s order granting the motion to withdraw

is not void, as Mitchell suggests. The general rule is that the filing of a notice of appeal

divests the district court of jurisdiction over a case pending resolution of the appeal.

See Pensiero v. Lingle, 847 F.2d 90, 98 (3d Cir. 1988); Venen v. Sweet, 758 F.2d 117,

121(3d Cir. 1985). However, this rule is founded on prudential considerations and is

applied “to prevent the confusion and inefficiency that would result if both the district

court and the court of appeals were adjudicating the same issues simultaneously.”

Pensiero, 847 F.2d at 98. Because it is a prudential doctrine, it is not used when its

application “would defeat its purpose of achieving judicial economy.” Id. Under the

circumstances of this case, applying the rule to void the long-ago reasoned ruling of the

District Court would not promote judicial economy.1 Accordingly, we decline to apply it.

To the extent Mitchell includes a request that counsel be appointed with his “motion for a

ruling on jurisdiction regarding counsel,” we deny it because, among other reasons, the

fees were paid on appeal and Mitchell has filed no application for leave to proceed in

forma pauperis for the purpose of appointing counsel.




   1
   In any event, had the District Court not ruled on the motion to withdraw, we would
have granted the motion before us for the reasons cited by the District Court.

                                              4
       Furthermore, we will affirm the District Court’s judgment because no issues have

been preserved for appeal. Absent exceptional circumstances, we ordinarily do not

consider issues that were not raised or preserved in the District Court. See Royce v.

Hahn, 151 F.3d 116, 125 (3d Cir. 1998); Franki Found. Co. v. Alger-Rau Assocs. 513

F.2d 581, 586 (3d Cir. 1975) (noting that we may relax the rule when justice or the public

interest so warrants). Mitchell’s counsel did preserve any issues by objecting to the jury

instructions at trial or in any post-trial motion, and we see no reason to depart from our

ordinary rule.

       We note that regardless of whether there was any error in the jury charge, an issue

on which we express no opinion, the jury’s verdict precluded any success on whatever

species of due process claim Mitchell sought to put before the jury. He predicated the

claim on the same charge of sexual harassment and assault on which he based his claim

under the Eighth Amendment. However, the jury concluded that Mitchell had not shown

that Henry had harassed or touched him in a sexual manner. Supp. App. 84. The jury’s

first and only finding (which, we additionally note, was supported by the evidence)

foreclosed both of Mitchell’s proposed avenues for relief.

       In sum, for the reasons given, we deny Mitchell’s “motion for a ruling on

jurisdiction regarding counsel,” and we will affirm the District Court’s judgment.




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