Daniel Delker v. Blaker

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2712
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DANIEL DELKER,
Appellant
v.
C/O BLAKER; C/O CHARLES PLUCK;
C/O “ROCKY” KING; MAJOR GRAINEY
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2:09-cv-00710)
District Judge: Honorable Cathy Bissoon
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 19, 2012
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: November 6, 2012 )
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OPINION
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PER CURIAM
Daniel Delker, an inmate of the Commonwealth of Pennsylvania, appeals pro se
the District Court’s adverse judgment in his civil-rights suit. We will affirm.
Because we write primarily for the parties, we will only briefly recite the facts of
the case, which were set out at length in the relevant District Court opinions. 1 In his
second amended complaint and with the assistance of counsel, Delker alleged pursuant to
42 U.S.C. § 1983 that the defendants—employees of the Pennsylvania Department of
Corrections—violated his Eighth Amendment rights during an inter-prison transfer in
June 2008. Specifically, Delker claimed that he was unjustifiably beaten, that the non-
participating defendants failed to intervene during the beating, and that two defendants
had entered into a conspiracy to bring about the incident. The District Court granted, in
part, the defendants’ motions for summary judgment, eliminating the failure-to-intervene
claims (which eliminated all claims against defendant Pluck) and the conspiracy claim
against defendant King, but allowing all other allegations to stand. After significant
pretrial motions practice, a three-day trial was held in April 2012; the jury ultimately
found in favor of the defendants on all counts. Delker timely appealed the District
Court’s order of judgment.
We have jurisdiction under 28 U.S.C. § 1291. Our standard of review is
complicated, however, by Delker’s opening brief, which does not clearly state the issues
he wants to preserve for review. We have repeatedly emphasized that, when addressing
the claims of a pro se litigant, we have a special obligation to construe his submissions
liberally. See Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (citations omitted).
That an appellant’s filings are difficult to understand does not relieve us or opposing
counsel of the duty to discern what he wishes to challenge. Id. We are aware, too, of the
1
See generally Delker v. Blaker, No. 09–710, 2011 WL 3667285 (W.D. Pa. Aug. 22,
2011); Delker v. Blaker, No. 09-710, 2011 WL 2601962 (W.D. Pa. June 30, 2011).
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appellant’s extraordinary term of solitary confinement, see Delker v. McCullough, 103 F.
App’x 694, 695 (3d Cir. 2004), which likely impedes his ability to access prison
resources (about which he complains in his submissions) and has probably affected his
style of communication. But on a lengthy record such as this, with numerous evidentiary
rulings and trial considerations, it is incumbent on the appellant to direct our attention to
matters he would have us address; otherwise, he runs the risk of waiver. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam); Kost v. Kozakiewicz, 1 F.3d
176, 182 (3d Cir. 1993).
Delker appears to raise two issues in his opening submission: first, that the
attorneys who represented him below were unprepared and rendered ineffective
assistance; second, that the bus used to transport him between prisons was not introduced
at trial as evidence. “The general rule in civil cases is that the ineffective assistance of
counsel is not a basis for appeal or retrial . . . [;] [i]f a client’s chosen counsel performs
below professionally acceptable standards, with adverse effects on the client's case, the
client’s remedy is not reversal, but rather a legal malpractice lawsuit against the deficient
attorney.” Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006). The Sixth
Amendment right to effective assistance of counsel does not apply in civil proceedings.
See Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). Therefore, the alleged failures of
Delker’s attorneys do not provide a basis for disturbing the judgment of the District
Court. Also, given the extensive evidence about the bus and the situation surrounding the
alleged assault introduced before the District Court, we cannot see how inspection of the
bus itself, assuming logistical feasibility, would have altered the jury’s verdict. Cf. Fultz
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v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998). We have also undertaken a plenary review of
the orders granting partial summary judgment, see Nat’l State Bank v. Fed. Reserve
Bank, 979 F.2d 1579, 1580 (3d Cir. 1992), and detect no errors therein compelling
reversal. See also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008); Harper v.
Albert, 400 F.3d 1052, 1063 (7th Cir. 2005); Smith v. Mensinger, 293 F.3d 641, 652 (3d
Cir. 2002).
For the foregoing reasons, the judgment of the District Court will be affirmed. To
the extent that Delker’s September 20, 2012 filing in support of his appeal can be
construed as a request for the appointment of counsel, it is denied.
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