                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-4344
                                       ___________

                                  JACOB CHRISTINE,
                                                Appellant

                                             v.

                        CHRIS DAVIS; BROOK ALBERT;
                      CRAIG ROBINSON; BRYAN DUGAN;
                   LEHIGH COUNTY PRISON; EDWARD GUZIK;
                    KEVIN CANNING; JONATHAN WILTRAUT;
                     RONALD KIEFER; GREGORY THOMAS
                     ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 10-cv-04734)
                     Magistrate Judge: Honorable Timothy R. Rice
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 16, 2015
             Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

                             (Opinion filed January 21, 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.
       Jacob Christine appeals from the judgment of the United States District Court for

the Eastern District of Pennsylvania in his civil rights case. We will affirm the District

Court’s judgment.

       Christine’s complaint was based on an incident on April 5, 2009. On that day,

Christine put his hands through the slot in his cell door to be handcuffed, as required, so

that he could leave his cell for telephone privileges. However, once the cell door was

open, Christine came out with a Styrofoam tray containing his feces, which he threw at a

prisoner in a nearby cell. Corrections officers returned him to his cell, removed his

handcuffs, and went to report the incident. Officers then came back to search Christine’s

cell for any other contraband, such as other containers that he could use to throw feces.

Officers ordered him to put his hands through the slot to be handcuffed but he refused.

Officers eventually opened the cell, sprayed Christine with pepper spray as he came

charging out of the cell, and brought him to the ground so that they could apply

handcuffs. Officers applied knee strikes or “stuns” to try to get Christine to give up his

hands for handcuffing. Two of the stuns (unintentionally, according to the officers)

struck Christine in the head. Christine suffered a one-centimeter laceration above his left

eyebrow, which required three stiches, and a two-inch by one-inch abrasion to the left

temple.




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       Christine filed a complaint, and counsel was appointed. The District Court1

granted the Defendants’ Motion for Partial Summary Judgment, dismissing several

claims and defendants. Two counts from Christine’s complaint, one alleging that the

correctional officers used excessive force during the incident, violating 42 U.S.C. § 1983,

and another that their actions constituted assault and battery, proceeded to a jury trial.

The jury’s verdict was in favor of Defendants on both counts. The District Court entered

judgment in favor of Defendants and denied Christine’s motion for a new trial and

amended motion for a new trial. Christine, proceeding pro se, timely appealed.

       On appeal, Christine first argues that the District Court erred in denying his

motion for a new trial because the security video from the prison clearly shows that the

corrections officers assaulted him and used excessive force. We review the denial of a

motion for a new trial for an abuse of discretion. McKenna v. City of Phila., 582 F.3d

447, 460 (3d Cir. 2009). We must review the evidence in the light most favorable to the

non-moving party, and we will find that a new trial would have been proper only if “the

jury’s verdict resulted in a miscarriage of justice or where the verdict, on the record, cries

out to be overturned or shocks our conscience.” Grazier v. City of Phila., 328 F.3d 120,

128 (3d Cir. 2003). Christine claims that the jury’s verdict is so unequivocally wrong

that it shocks one’s conscience, but we disagree. Because the videotape is grainy, jumpy,

and partially-obstructed by the stairwell in front of Christine’s cell, it is far from clear


1
 The parties consented to have the matter heard before a Magistrate Judge, pursuant to
28 U.S.C. § 636(c).
                                            3
what happened simply from viewing the videotape. The corrections officers testified that

they administered the stuns because Christine was not cooperating and would not allow

them to handcuff him. We conclude that the District Court did not abuse its discretion in

determining that the “verdict was based on sufficient evidence and on the jury’s

resolution of credibility determinations.” Dkt. #62 at 3.

       Christine next argues that the District Court erred by allowing the Defendants to

submit evidence and camera footage related to the incident when he threw feces at

another inmate. We review a district court’s decision to admit evidence for abuse of

discretion. Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 244 n.25 (3d Cir.

2013). We may reverse a ruling under Rule 403 of the Federal Rules of Evidence2 “only

if it is arbitrary and irrational.” Id. at 245 (internal quotation and citation omitted).

While we may have ruled differently, perhaps by disallowing evidence of what it was that

Christine threw, we cannot say that the District Court’s decision was “arbitrary and

irrational.” In the District Court, Christine had argued that the Defendants wanted to

search his cell only to confiscate his legal material. Evidence of the feces-throwing

incident was probative to show that the Defendants had a legitimate reason for ordering

Christine to be cuffed and exit his cell so that it could be searched. Further, the District

Court properly instructed the jury that it could not use the evidence of the feces-throwing


2
 That rule provides: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
                                             4
incident to prove Christine’s bad character. We conclude that the District Court did not

abuse its discretion.

       Christine also argued in his motions for a new trial that the District Court

improperly admitted evidence of the prison’s Use of Force Policy, and improperly

admitted evidence of a misconduct issued against him (Exhibit D-29). As Exhibit D-29

was not admitted into evidence, that argument is without merit, and as Christine did not

make a contemporaneous objection to introduction of the Use of Force Policy, that issue

is waived. See Christmas v. City of Chi., 682 F.3d 632, 640 (7th Cir. 2012) (if party does

not object to admission of evidence during trial, objection is waived and cannot be raised

for first time on motion for new trial or on appeal); see also Caisson Corp. v. Ingersoll-

Rand Co., 622 F.2d 672, 681 (3d Cir. 1980) (same).

       Christine argues that the trial court erred by failing to instruct the jury on

“deliberate indifference” and “contributory negligence.” Christine did not object to the

jury instructions in the District Court. “We generally do not address arguments that were

not made in the district court and we therefore decline to consider [Christine’s] current

argument as a ground for reversing the decision of the district court.” Ziccardi v. City of

Phila., 288 F.3d 57, 65 (3d Cir. 2002).

       Finally, Christine argues that he was prejudiced by the Defendants’ comments in

opening and closing arguments regarding his alleged refusal to take responsibility for his

actions. As Christine raised this argument for the first time in his post-trial motion, we

review the issue for plain error. Lesende v. Borrero, 752 F.3d 324, 336 (3d Cir. 2014)
                                               5
(plain error review includes considering obviousness of error, significance of interest

involved, and reputation of judicial proceedings if error stands uncorrected; plain error

review is to be exercised sparingly and with extreme caution in civil contexts); see also

Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179-80 (11th Cir. 2002) (finding of

plain error is seldom justified in reviewing argument of counsel in civil case). Here, the

jury was properly instructed regarding the elements of excessive force and assault and

battery. It was also properly told that opening and closing arguments do not constitute

evidence. Because the jury was not likely misled by any remarks in opening and closing

arguments, we do not find plain error.

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




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