Fidel Davis v. Dane Hollier, et al

Filing

UNPUBLISHED OPINION FILED. [13-40663 Affirmed ] Judge: CDK , Judge: EGJ , Judge: CH Mandate pull date is 03/24/2015; denying motion to file supp reply brief filed by Appellant Mr. Fidel Davis [7654773-2] [13-40663]

Case: 13-40663

Document: 00512955447

Page: 1

Date Filed: 03/03/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-40663
Summary Calendar

FILED
March 3, 2015
Lyle W. Cayce
Clerk

FIDEL DAVIS,
Plaintiff-Appellant
v.

DANE HOLLIER, Officer Position; TIMOTHY MCCURLEY, Sergeant
Position,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:11-CV-103
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Fidel Davis, Texas prisoner # 1689557, filed the instant 42 U.S.C. § 1983
civil rights suit against Dane Hollier and Timothy McCurley, officers in the
Groves Police Department. Davis alleged that Hollier and McCurley used
excessive force against him by punching him in the mouth and elsewhere and
that they gave him poisoned water to drink at the police station.

The

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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defendants were granted summary judgment as to Davis’s claims regarding
the water, and a jury trial was held on his claims of excessive force. The jury
returned a verdict in favor of the defendants, and Davis appeals the final
judgment in the case.
After briefing was completed, Davis filed another document in this court
discussing the case.

The filing is construed as motion for leave to file a

supplemental reply brief and is denied, as it is redundant of Davis’s opening
brief and reply brief.
With the benefit of liberal construction, Davis raises three issues on
appeal. First, he contends that he proved his claims of excessive force by a
preponderance of the evidence. Where an appellate challenge to the sufficiency
of the evidence was preserved in the district court with regard to a jury verdict,
we will reverse the verdict only if there was no legally sufficient evidentiary
basis for a reasonable jury to have reached that verdict. Travelers Cas. and
Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 481-82 (5th Cir. 2008). A
more deferential standard of review applies to the district court’s denial of a
motion seeking a new trial based on the weight of the evidence. Id. at 482.
Such a denial “will be affirmed unless there is a clear showing of an absolute
absence of evidence to support the jury’s verdict.” Miller v. Raytheon Co., 716
F.3d 138, 145 (5th Cir. 2013) (internal quotation marks and citation omitted).
However, Davis has waived appellate review of the sufficiency of the
evidence because he did not file a postverdict motion under Federal Rule of
Civil Procedure 50(b) for a judgment as a matter of law or a motion under
Federal Rule of Civil Procedure 59 for a new trial on the ground that the verdict
was contrary to the weight of the evidence. See Downey v. Strain, 510 F.3d
534, 543 (5th Cir. 2007); Price v. Rosiek Const. Co., 509 F.3d 704, 707 (5th Cir.
2007). In any event, the defendants presented evidence at the trial indicating

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that the officers did not punch Davis and that Davis’s injuries were likely
caused instead by a reaction to drugs he ingested on his own. Thus, Davis’s
challenge to the sufficiency of the evidence would fail even if it were not waived,
as there was a legally sufficient evidentiary basis for a reasonable jury to find
that Hollier and McCurley did not use excessive force on Davis.
In his next issue, Davis contends that there was a violation of the court’s
order granting the defendants’ motion in limine. Davis cites the testimony of
Dr. Edward Gripon, an expert witness for the defense, indicating that Dr.
Gripon was being paid to appear as a witness at the trial. According to Davis,
such testimony violated a prohibition against mentioning that any offer of a
settlement or payment was made or discussed on behalf of the defendants or
Davis. Davis’s assertion is unavailing because Dr. Gripon was not a party to
the case and his payment did not constitute a settlement or attempted
settlement of the case. See FED. R. EVID. 408.
Davis does not brief any argument in his opening brief concerning any
other violations of the order granting the motion in limine. He has thus waived
any such arguments. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
While pro se briefs are liberally construed, even pro se litigants must brief
arguments in order to preserve them. Id. Although Davis’s reply brief lists
additional violations of the order, we will not consider them because they are
raised for the first time in the reply brief. See id.
Davis’s remaining arguments challenge numerous rulings by the judge
during the trial, and Davis contends that his trial was unfair based on those
rulings. Litigants have a constitutional right to a fair trial in a civil case.
Latiolais v. Whitley, 93 F.3d 205, 207 (5th Cir. 1996).

The judge has

considerable discretion in conducting a fair trial, and his rulings will not be
reversed absent proof of an abuse of discretion. Marceaux v. Lafayette City-

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Parish Consol. Gov’t, 731 F.3d 488, 492 (5th Cir. 2013); Excel Handbag Co. v.
Edison Bros. Stores, Inc., 630 F.2d 379, 388 (5th Cir. 1980). Based on our
review of the record, Davis’s arguments do not show that the judge abused his
discretion in conducting the trial or that Davis suffered an unfair trial. We
note that Davis had a sufficient opportunity after the verdict to request that
the jury be polled.
AFFIRMED; MOTION FOR LEAVE TO FILE SUPPLEMENTAL
REPLY BRIEF DENIED.

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