James Winding v. Bart Grimes, et al

Filing

UNPUBLISHED OPINION FILED. [09-60943 Dismissed as Frivolous] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 01/18/2011; denying motion to strike brief filed by Appellant Mr. James C. Winding [6534768-2]; denying motion to appoint counsel filed by Appellant Mr. James C. Winding [6452336-2] [09-60943]

James Winding v. Bartase: 09-60943 C Grimes, et al

Document: 00511332735 Page: 1 Date Filed: 12/27/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60943 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. B A R T GRIMES, Individually and in his official capacity; CARMELITA N A Y L O R ; CAPTAIN DERECK SMITH; LIEUTENANT RICE, D e fe n d a n t s -A p p e lle e s J A M E S C. WINDING, P la in t if f -A p p e lla n t v. R O N WILLIAMS, Individually and in his official capacity; E.L. SPARKMAN, I n d iv id u a lly and in his official capacity; JOYCE GRAHAM; GEO E N T E R P R I S E S , INC.; THE GEO GROUP, INC., D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 4:09-CV-11 U S D C No. 4:09-CV-58

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

Dockets.Justia.com

Case: 09-60943 Document: 00511332735 Page: 2 Date Filed: 12/27/2010 No. 09-60943 P E R CURIAM:* J a m e s C. Winding, Mississippi prisoner # K8115, appeals the magistrate ju d g e 's denial of his motion for judgment as a matter of law and his motion for a new trial with a jury, which challenged the magistrate judge's dismissal of his 4 2 U.S.C. § 1983 complaint. Winding argues that the magistrate judge's denial o f his motion for a judgment as a matter of law was not supported by the facts o r law. He contends that he can prove that the defendants acted with deliberate in d iffe r e n c e because they knew that Winding was housed with an inmate with a violent history and failed to take steps to protect him from harm. 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 a manifest error of law or fact or the discovery o f new evidence. See Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1 9 8 9 ). The district court did not abuse its discretion in denying the

p o s t ju d g m e n t motion because Winding did not raise any challenges entitling him t o relief under 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).

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.

*

2

Case: 09-60943 Document: 00511332735 Page: 3 Date Filed: 12/27/2010 No. 09-60943 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 he did not require a transcript 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 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 i n 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 Federal R u le Civil Procedure 38 right to a jury trial and did not move prior to trial to w it h d r a w the waiver pursuant to Federal Rule Civil Procedure 39. The district c o u r t did not abuse its discretion in denying Winding's request for a jury trial m a d e in a postjudgment motion. See Daniel Intern. Corp. v. Fischback & Moore, I n c ., 916 F.2d 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. The Geo Group, Inc., No. 09-60693 constituted another s t r ik e under § 1915(g) strike against him. W in d in g has filed a motion for appointment of counsel, arguing that he is w it h o u t funds to investigate his claims and that he does not have the skills and k n o w le d g e to proceed with his case. The court may appoint counsel in a § 1983 c a s e upon a showing of exceptional circumstances. Ulmer v. Chancellor, 691 F .2 d 209, 212 (5th Cir. 1982). Winding has not made a showing of exceptional

3

Case: 09-60943 Document: 00511332735 Page: 4 Date Filed: 12/27/2010 No. 09-60943 c ir c u m s t a n c e s warranting the appointment of counsel. a p p o in tm e n t of counsel is denied. W in d in g has also filed a motion to strike the appellees' briefs because the d e fe n d a n t s did not file a response to his motion for judgment as a matter of law a n d his motion for new trial filed in the district court. Winding has not shown any valid legal basis for the court to strike the appellees' briefs. The motion is d e n ie d . A P P E A L DISMISSED; MOTIONS DENIED; SANCTION WARNING IS S U E D . The motion for

4