     Case: 09-60943 Document: 00511332735 Page: 1 Date Filed: 12/27/2010




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

                                              FILED
                                                           December 27, 2010
                              No. 09-60943
                            Summary Calendar                   Lyle W. Cayce
                                                                    Clerk

JAMES C. WINDING,

                                         Plaintiff-Appellant

v.

BART GRIMES, Individually and in his official capacity; CARMELITA
NAYLOR; CAPTAIN DERECK SMITH; LIEUTENANT RICE,

                                         Defendants-Appellees

JAMES C. WINDING,
                                         Plaintiff-Appellant

v.

RON WILLIAMS, Individually and in his official capacity; E.L. SPARKMAN,
Individually and in his official capacity; JOYCE GRAHAM; GEO
ENTERPRISES, INC.; THE GEO GROUP, INC.,

                                         Defendants-Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi
                           USDC No. 4:09-CV-11
                           USDC No. 4:09-CV-58


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
     Case: 09-60943 Document: 00511332735 Page: 2 Date Filed: 12/27/2010

                                       No. 09-60943

PER CURIAM:*
       James C. Winding, Mississippi prisoner # K8115, appeals the magistrate
judge’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
42 U.S.C. § 1983 complaint. Winding argues that the magistrate judge’s denial
of his motion for a judgment as a matter of law was not supported by the facts
or law. He contends that he can prove that the defendants acted with deliberate
indifference because they knew that Winding was housed with an inmate with
a violent history and failed to take steps to protect him from harm.
       Winding’s postjudgment Federal Rule Civil Procedure 59(e) motion merely
disputed the magistrate judge’s factual findings and legal conclusions based on
the evidence presented at his trial. Rule 59(e) cannot be used to rehash the
evidence or make arguments that could have been offered or raised before the
entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.
2004). Windings’s assertions in his motion did not demonstrate any grounds for
relief under Rule 59(e), such as a manifest error of law or fact or the discovery
of new 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 motion because Winding did not raise any challenges entitling him
to relief under Rule 59(e).
       Further, Winding’s challenge to the magistrate judge’s denial of his
request to reconsider his findings of fact and conclusion of law require this court
to review a transcript of the trial. Winding’s failure to provide a transcript may
be the basis for the dismissal of the entire appeal. See F ED. R. A PP. P. 3(a)(2);
F ED. R. A PP. 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.

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                                  No. 09-60943

Windings’s pro se and in forma pauperis status does not preclude consideration
of his initial representation to the court that he did not require a transcript to
pursue his appeal nor excuse his failure to seek the transcript from this court
until after filing his brief. See Alizadeh v. Safeways Stores, Inc., 910 F.2d 234,
237 (5th Cir. 1990) The lack of a transcript is an additional consideration in
dismissing this appeal as frivolous.
      Winding argues that the magistrate judge erred in denying his
postjudgment motion for a new jury trial. Winding expressly waived his Federal
Rule Civil Procedure 38 right to a jury trial and did not move prior to trial to
withdraw the waiver pursuant to Federal Rule Civil Procedure 39. The district
court did not abuse its discretion in denying Winding’s request for a jury trial
made in a postjudgment motion. See Daniel Intern. Corp. v. Fischback & Moore,
Inc., 916 F.2d 1061, 1064 (5th Cir. 1990).
      Winding has failed to raise issues of arguable merit.         His appeal is
dismissed as frivolous. See 5 TH C IR. R. 42.2. The dismissal of this appeal as
frivolous 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).
Winding is cautioned that once he accumulates three strikes, he may not proceed
IFP in any civil action or appeal filed while he is incarcerated or detained in any
facility 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
appeal in Winding v. The Geo Group, Inc., No. 09-60693 constituted another
strike under § 1915(g) strike against him.
      Winding has filed a motion for appointment of counsel, arguing that he is
without funds to investigate his claims and that he does not have the skills and
knowledge to proceed with his case. The court may appoint counsel in a § 1983
case upon a showing of exceptional circumstances. Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982). Winding has not made a showing of exceptional



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circumstances warranting the appointment of counsel.            The motion for
appointment of counsel is denied.
      Winding has also filed a motion to strike the appellees’ briefs because the
defendants did not file a response to his motion for judgment as a matter of law
and 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
denied.
      APPEAL DISMISSED; MOTIONS DENIED; SANCTION WARNING
ISSUED.




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