2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-17-2013

Mathis McMickle a/k/a Mathis A v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-2051

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Recommended Citation

"Mathis McMickle a/k/a Mathis A v. USA" (2013). 2013 Decisions. Paper 552.

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CLD-303 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2051

___________

MATHIS MCMICKLE a/k/a MATHIS AVERY

v.

UNITED STATES OF AMERICA

Mathis McMickle,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. Civil No. 2-12-cv-00338)

District Judge: Honorable John R. Padova

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

June 27, 2013

Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

(Opinion filed: July 17, 2013)

_________

OPINION

_________

PER CURIAM

Mathis McMickle, a Pennsylvania state prisoner proceeding pro se, appeals from a 

judgment of the United States District Court for the Eastern District of Pennsylvania in 

favor of the United States in his action under the Federal Tort Claims Act, 28 U.S.C. 
2

§§ 1346(b), 2671-80. For the reasons that follow, we will dismiss McMickle’s appeal 

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

McMickle filed a complaint through counsel alleging that he suffered permanent 

injuries to his wrists as a result of being transported in handcuffs that were too tight. He 

claimed that the federal agents negligently placed him in the handcuffs and failed to 

adjust them when he complained. McMickle sought compensatory damages. The matter 

went to arbitration and an award was entered in favor of the United States. McMickle, 

acting without counsel, requested a trial de novo.

1

 The case proceeded to a one-day 

bench trial and judgment was entered in favor of the United States. This appeal followed.

McMickle was notified of the possible dismissal of his appeal pursuant to 28 

U.S.C. § 1915(e)(2)(B) or possible summary action pursuant to Third Circuit Local 

Appellate Rule 27.4 and Internal Operating Procedure 10.6 and was afforded an 

opportunity to submit argument in support of his appeal. McMickle filed a response, but 

he does not adequately present any issues for our review. McMickle appears to state that 

conflicting evidence was presented at trial, but that would have been a question for the 

fact finder to resolve. The District Court stated in an order denying a motion by 

McMickle for reconsideration that its judgment was based on its credibility 

determinations and conclusion that McMickle had not met his burden of proving that 

government agents had breached a duty or caused an injury. 

 

1McMickle’s counsel later moved to withdraw because he did not agree with the request 

for a trial. The District Court denied the motion because it was filed too late, McMickle 

and the United States would be prejudiced, and the administration of justice would be 

hindered.
3

McMickle also asserts that one of the agents who transported him, Tori Gaskill,

did not testify at trial, but he does not explain the circumstances, whether the matter was 

raised at trial, or how he was prejudiced. McMickle states only that the second agent 

who transported him, Tom Molena, falsely testified that Gaskill had placed the handcuffs 

on him. McMickle, however, would have been able to cross-examine Molena as well as 

testify to his version of the events. McMickle also claimed in District Court that his 

counsel provided ineffective assistance at trial, but the Sixth Amendment guarantee to 

effective counsel does not apply in civil cases. Lu v. Ashcroft, 259 F.3d 127, 131 (3d 

Cir. 2001).

Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. 1915(e)(2)(B)(i).2

 

2McMickle did not order the trial transcript as required by Federal Rule of Appellate 

Procedure 10(b)(1). Failure to order the transcript is also grounds for dismissal of an 

appeal. 3d Cir. L.A.R. 11.1.