James Winding v. GEO Group, Inc.

Filing

UNPUBLISHED OPINION FILED. [09-60693 Dismissed as Frivolous] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 01/18/2011; denying motion to supplement the record on appeal filed by Appellant Mr. James C. Winding [6673626-2], denying motion to supplement the record on appeal filed by Appellant Mr. James C. Winding [6527322-2], denying motion to supplement the record on appeal filed by Appellant Mr. James C. Winding [6511061-2]; granting motion to file supp reply brief filed by Appellant Mr. James C. Winding [6584921-2]; denying motion for default judgment filed by Appellant Mr. James C. Winding [6583044-2]; denying motion to strike brief filed by Appellant Mr. James C. Winding [6573460-2]; denying motion to appoint counsel filed by Appellant Mr. James C. Winding [6434121-2]; denying motion for writ of mandamus filed by Appellant Mr. James C. Winding [6373648-2], denying petition for writ of mandamus filed by Appellant Mr. James C. Winding [6434114-2], denying petition for writ of mandamus filed by Appellant Mr. James C. Winding [6434062-2], denying petition for writ of mandamus filed by Appellant Mr. James C. Winding [6381990-2] [09-60693]

James Winding v. GEO se: 09-60693 Ca Group, Inc.

Document: 00511332603 Page: 1 Date Filed: 12/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60693 S u m m a r y Calendar December 27, 2010 Lyle W. Cayce Clerk

J A M E S C. WINDING, P la in t if f -A p p e lla n t v. T H E GEO GROUP, INC., D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 4:07-CV-69

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* J a m e s C. Winding, Mississippi prisoner # K8115, is appealing the m a g is tr a t e judge's orders denying his motion and supplemental motion for a ju d g m e n t as a matter of law and his motion for a new trial by jury on his 42 U .S .C . § 1983 complaint, which was dismissed following a bench trial before the m a g is tr a t e judge. Winding alleged that the Geo Group, Inc. (Geo) or its

a u t h o r iz e d decisionmaker failed to enforce a policy of protecting inmates from

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 09-60693 Document: 00511332603 Page: 2 Date Filed: 12/27/2010 No. 09-60693 h a r m and it resulted in his being stabbed and injured by an inmate with known v io le n t propensities. W in d in g argues that the magistrate judge erred in denying his motion and s u p p le m e n t a l motion for a judgment as a matter of law based on the evidence t h a t Geo or its authorized decisionmaker knew or should have known that h o u s in g Winding with Willie Proctor created a dangerous risk of harm in light o f Proctor's prior conduct and mental illness. He contends that the failure to e n fo r c e the written prison policy to protect inmates from harm can be inferred fr o m the evidence presented at trial. W in d in g 's postjudgment Federal Rule Civil Procedure 59(e) motion merely d is p u t e d the magistrate judge's factual findings and legal conclusions based on t h e evidence presented at his trial. Rule 59(e) cannot be used to rehash the e v id e n c e or make arguments that could have been offered or raised before the e n tr y of judgment." Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2 0 0 4 ). Windings's assertions in his motion did not demonstrate any grounds for r e lie f under Rule 59(e), such as manifest error of law or fact or the discovery of n e w evidence. See Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). The district court did not abuse its discretion in denying the postjudgment m o t io n because Winding did not raise any challenges entitling him to relief u n d e r Rule 59(e). F u r t h e r , Winding's challenge to the magistrate judge's denial of his r e q u e s t to reconsider his findings of fact and conclusion of law require this court t o review a transcript of the trial. Winding's failure to provide a transcript may b e the basis for the dismissal of the entire appeal. See FED. R. APP. P. 3(a)(2); F ED. R. APP. P. 10(b)(2); Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.1990). W in d in g s 's pro se and in forma pauperis status does not preclude consideration o f his initial representation to the court that a transcript was not required to p u r s u e his appeal nor excuse his failure to seek the transcript from this court u n t il after filing his brief. See Alizadeh v. Safeways Stores, Inc., 910 F.2d 234, 2

Case: 09-60693 Document: 00511332603 Page: 3 Date Filed: 12/27/2010 No. 09-60693 2 3 7 (5th Cir. 1990) The lack of a transcript is an additional consideration in d is m is s in g this appeal as frivolous. W in d in g argues that the magistrate judge erred in denying his p o s t ju d g m e n t motion for a new jury trial. Winding expressly waived his right t o a jury trial at a pretrial conference and did not move prior to trial to withdraw t h e waiver. See FED. R. CIV. P. 38; FED. R. CIV. P. 39. The district court did not a b u s e its discretion in denying Winding's request for a jury trial made in a p o s t ju d g m e n t motion. See Daniel Intern. Corp. v. Fischback & Moore, Inc., 916 F .2 d 1061, 1064 (5th Cir. 1990). W in d in g has failed to raise issues of arguable merit. His appeal is

d is m is s e d as frivolous. See 5TH CIR. R. 42.2. The dismissal of this appeal as fr iv o lo u s counts as a strike for purposes of the IFP provisions of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).

W in d in g is cautioned that once he accumulates three strikes, he may not proceed I F P in any civil action or appeal filed while he is incarcerated or detained in any fa c ilit y unless he is under imminent danger of serious physical injury. See § 1915(g). The court notes that the recent dismissal as frivolous of Winding's a p p e a l in Winding v. Grimes, No. 09-60943 constitutes another strike under § 1915(g) against him. W in d in g 's motion to file a supplemental reply brief is granted. Winding h a s filed a motion for appointment of counsel, arguing that he is without funds t o investigate his claims and that he does not have the skills and knowledge to p r o c e e d with his case. Because Winding has not made a showing of exceptional c ir c u m s t a n c e s warranting the appointment of counsel, the motion for a p p o in tm e n t of counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5 t h Cir. 1982). Winding is requesting this court to strike Geo's brief, the clerk's o r d e r providing it with a ten-day extension to file the brief, and to enter a default j u d g m e n t against Geo based on its failure to file a timely brief. Geo filed a m o t io n to file a brief out-of-time, and the clerk granted the motion. Geo filed its 3

Case: 09-60693 Document: 00511332603 Page: 4 Date Filed: 12/27/2010 No. 09-60693 b r ie f on the day the motion to file the out-of-time brief was granted. Winding h a s not shown any valid legal basis for the court to strike the appellee's brief or t o grant a default judgment. The motions for default judgment, to strike the tend a y extension to file the brief, and to strike the appellee's brief are denied. W in d in g filed a motion to supplement the record with his medical records a n d prison records showing Proctor's mental illness and violent behavior. These s a m e records were filed in the district court record. Thus, the motion to

s u p p le m e n t is denied. Winding filed another motion to supplement the record w it h a MDOC policy on housing and other documents already part of the record. T h e s e documents merely support Winding's previous arguments that he should n o t have been housed with Proctor. The motion to supplement to submit the p o lic y statement is also denied. W in d in g has filed several petitions seeking writs of mandamus ordering d iffe r e n t actions by the district court. He complains that the district court did n o t rule on all of his motions, that defense counsel should be sanctioned, and t h a t he is entitled to a new trial by jury. The mandamus remedy is an

e x t r a o r d in a r y one, which the court grants only in the clearest, most compelling c a s e s . A party seeking mandamus relief must show both that he has no other a d e q u a t e means for achieving the requested relief and that he has a clear and in d is p u t a b le right to mandamus relief. In re Willy, 831 F.2d 545, 549 (5th Cir. 1 9 8 7 ). T h e record reflects that the district court has ruled on all the motions p r e s e n t e d to it. Winding has raised arguments in these petitions that he raised o r could have raised on appeal. He has not shown extraordinary circumstances e n tit lin g him to mandamus relief. His petitions are denied. APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION TO F IL E SUPPLEMENTAL REPLY BRIEF IS GRANTED; ALL OTHER MOTIONS D E N I E D ; PETITIONS FOR WRITS OF MANDAMUS DENIED.

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