                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 13, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-60345
                         Summary Calendar


THOMAS F. UNGER,

                                    Plaintiff-Appellee,

versus

WACKENHUT; EMMITT L. SPARKMAN, Warden of Marshall County
Correctional Facility in Holly Springs, in his individual
and official capacities; WILLIE MAE WILLIAMS, Assistant
Warden at Marshall County Correctional Facility, in her
individual and official capacities; REGINALD BLANCHARD,
Sergeant; CHARLES SMITH, Sergeant, in his individual and
official capacities,

                                    Defendants-Appellants.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                     USDC No. 3:00-CV-127-B
                      --------------------

Before REAVLEY, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     The appellee-defendant Reginald Blanchard appeals the

judgment entered upon the jury verdict finding Blanchard had

used excessive force against Thomas F. Unger, Mississippi state

prisoner # 68203, and finding him liable for damages to Ungar in

the amount of $5000.   Blanchard also appeals the district court’s


     *
        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that this opinion should not be published and is not precedent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.
                          No. 03-60345
                               -2-

order denying his postjudgment motions to alter or amend

the judgment, for judgment as a matter of law notwithstanding

the verdict, for stay of enforcement of the judgment and

alternatively, for his motion for a new trial.

     Viewing all reasonable inferences from the evidence in favor

of Unger, the nonmoving party, and giving deference to the jury’s

credibility findings, there was a legally sufficient evidentiary

basis for a reasonable jury to find that unreasonable force was

used, without provocation, by Officer Blanchard and that the use

of such force resulted in an injury to Unger.    Therefore, the

district court did not err in denying Blanchard’s motion for a

judgment as a matter of law nor did it abuse its discretion in

denying his motion for a new trial.   See Reeves v. Sanderson

Plumbing Prods. Inc., 530 U.S. 133, 149 (2000); Streber v.

Hunter, 221 F.3d 701, 736 (5th Cir. 2000); Hudson v. McMillian,

503 U.S. 1, 6-7 (1992).

     As discussed below, the district court did not err in

denying Blanchard’s postjudgment motion to amend the judgment

or in refusing to stay the judgment in Unger’s favor.

     The prevailing defendants/appellees, Wackenhut, Sparkman,

Williams, and Smith, argue that the district court erred in

denying their motion for attorney’s fees and costs because the

district court dismissed the claims against them as frivolous.
                            No. 03-60345
                                 -3-

They contend that the district court erred in failing to amend

the judgment to offset the attorney’s fees and costs due to them

against the judgment rendered in Unger’s favor against Blanchard.

     Although the district court dismissed as frivolous the

claims against these defendants prior to the jury’s verdict, its

ruling on the prevailing defendants’ motion implied that it did

not believe that the facts of the case warranted an award to the

prevailing defendants.   The record also indicated that the claims

against these defendants were not totally vexatious and without

any foundation.   Therefore, the prevailing defendants failed to

demonstrate that the district court abused its discretion in

denying the motion for attorney’s fees.     See Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 421 (1978);     Hughes v. Rowe,

449 U.S. 5, 14 (1980).

     This determination renders moot the motion of Blanchard

and the prevailing defendants seeking to amend the judgment to

offset the attorney’s fees award against the judgment rendered

in Unger’s favor and against Blanchard.     Blanchard has failed to

make any argument or to cite any authority to support his claim

that he should not have been taxed the costs of the proceeding.

Thus, this claim is deemed abandoned.      Yohey v. Collins, 985 F.2d

222, 225 (5th Cir. 1993).

     The district court’s judgment on the jury verdict in favor

of Unger and against Blanchard and the orders denying the

defendants’ postjudgment motions are AFFIRMED.
