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

                                                  FILED
                                                                           January 6, 2010

                                     No. 08-30708                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DERRICK SCOTT,

                                                   Plaintiff-Appellant,
v.

ROBERT DAVIS; RODERICK MALCOLM; SERGEANT KIDD; CHRIS
EVANS; CAPTAIN TOFFTON; LIEUTENANT SANDERS,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:05-CV-2024


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Derrick Scott appeals the district court’s denial of his
Motion for Judgment as a Matter of Law and his Motion for a New Trial.
Having concluded that the issues raised on appeal are without merit, we
AFFIRM the judgment of the district court.
       I.      BACKGROUND



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30708

       On November 22, 2005, Scott filed a 42 U.S.C. § 1983 action in the
Western District of Louisiana, alleging that his constitutional rights were
violated by certain prison guards who used excessive force against him in
connection with an event that occurred on July 10, 2005, at the David Wade
Correctional Center in Homer, Louisiana.1 On February 11, 2008, the district
court impaneled a ten person jury, and Scott presented his case to the jury. On
February 12, 2008, the jury returned a verdict in favor of the defendants, Robert
Davis, Roderick Malcolm, Kevin Kidd, Chris Evans, John Toffton, and Cale
Sanders.
       After the jury verdict had been read, Scott made an oral motion for
judgment as a matter of law, arguing that the jury verdict was contrary to the
evidence he presented and consequently, a miscarriage of justice. Scott also
questioned the grounds upon which the jury had come to its decision. The
district court denied Scott’s oral motion, stating that the jury had reached its
verdict because it believed the defendants’ evidence over that which Scott had
presented.
       On February 25, 2008, Scott filed a Motion for New Trial and for
Judgment as a Matter of Law.                   In his motion, Scott argued that the



       1
          Scott claims that while he was being housed in maximum lock-down on suicide watch,
he “was subjected to excessive and unnecessary use of force by the David Wade Correctional
officers, while [he] was in handcuffs and legshackles handcuffed with his hands handcuffed
behind his back face down on the floor.” He claims he was “repeat[ed]ly punched kick[ed], and
stomp[ed] by four David Wade officers while [he] was face down on the floor with his hands
handcuffed behind his back with legshackles on both ankles.” At trial, the Defendant-
Appellees presented evidence that documented a different story of the events that occurred on
July 10, 2005. The Defendant-Appellees’ evidence at trial supported their story that upon
exiting his cell that day, Scott “pushed Robert Davis in the chest area. Roderick Malcolm and
Robert Davis then took inmate Scott to the floor.” The Defendants-Appellees’ story also differs
from Scott’s in that the Defendants-Appellees offered testimony at trial that the whole time
Scott was on the ground, “Scott was resisting, kicking, biting, and spitting[,] . . . and would not
comply with any orders given.” During the course of the trial, the jury was presented with,
and heard testimony that depicted, both sides of story concerning the events that occurred on
July 10, 2005, at the David Wade Correctional Center.

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                                         No. 08-30708

overwhelming weight of the evidence supported a jury verdict in his favor, and
as a result, the jury’s verdict for the defendants resulted in a miscarriage of
justice. On June 12, 2008, the district court denied Scott’s Motion for New Trial
and for Judgment as a Matter of Law. Scott timely filed his notice of appeal.
       II.     SCOTT’S MOTION FOR JUDGMENT AS A MATTER OF LAW
       The denial of Judgment as a Matter of Law is reviewed de novo. E.g.,
Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003). We apply the
same standard the district court applied and consider the evidence in the light
most favorable to the party opposing the motion. E.g., Bank of Saipan v. CNG
Fin. Corp., 380 F.3d 836, 840 (5th Cir. 2004). Judgment as a Matter of Law is
proper if “a reasonable jury would not have a legally sufficient evidentiary basis
to find for [a] party on [an] issue.” Fed. R. Civ. P. 50(a).
       In this case, however, the Plaintiff-Appellant’s failure to move for
Judgment as a Matter of Law prior to the jury verdict is fatal to his appeal now
before us. Satcher v. Honda Motor Co., 52 F.3d 1311, 1315 (5th Cir. 1995) (“To
fully preserve error on appeal for failure to grant a motion for judgment, the
moving party must file both a pre-verdict Rule 50(a) motion at the close of all the
evidence and the renewed Rule 50(b) motion. An appellant who failed to do so
in the district court is not entitled to rendition of judgment in his favor on
appeal, but is at most entitled to a new trial.”).2 Scott never filed a “pre-verdict”
motion, and consequently, this issue has not been properly preserved for appeal.
       While it is true that “[w]e excuse technical noncompliance with Rule 50
where its basic purposes have been satisfied,” id., in the present case, the basic



       2
          Scott is proceeding pro se. Thus, we note that we apply “less stringent standards to
parties proceeding pro se than to parties represented by counsel and liberally construe the
briefs of pro se litigants.” Grant v. Cuellari, 59 F.3d 523, 524 (5th Cir. 1995). In this particular
instance, however, our less stringent standard of review for pro se plaintiffs does not
adequately compensate for Scott’s failure to comply with the procedural requirements of Rule
50.

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purposes behind Rule 50 have not been satisfied. “The basic purposes of the
Rule are ‘to enable the trial court to re-examine the question of evidentiary
insufficiency as a matter of law if the jury returns a verdict contrary to the
movant, and to alert the opposing party to the insufficiency before the case is
submitted to the jury, thereby affording it an opportunity to cure any defects in
proof should the motion have merit.’” Id. (quoting Bohrer v. Hanes Corp., 715
F.2d 213, 216-217 (5th Cir. 1983)).
       Because Scott moved for Judgment as a Matter of Law after the jury
returned its verdict, the district court had no opportunity to “re-examine the
question of evidentiary sufficiency” prior to submitting the evidence to the jury,
and the opposing parties were not alerted to the potential “insufficiency before
the case [wa]s submitted to the jury.” Id. Accordingly, the basic purposes behind
Rule 50 have not been met, and as a result, we cannot conclude that the district
court erred in denying Scott’s post-verdict Motion for Judgment as a Matter of
Law.
       III.   SCOTT’S MOTION FOR NEW TRIAL
       Scott also argues on appeal that the district court erred when it denied his
Motion for a New Trial. “The decision to grant or deny a motion for new trial
generally is within the sound discretion of the trial court and will not be
disturbed unless there is an abuse of that discretion or misapprehension of the
law.” Dixon v. Int’l Harvester Co., 754 F.2d 573, 586 (5th Cir. 1985). “A trial
court should not grant a new trial on evidentiary grounds unless the verdict is
against the great weight of the evidence.” Dotson v. Clark Equip. Co., 805 F.2d
1225, 1227 (5th Cir.1986); see also G.A. Thompson & Co. v. Partridge, 636 F.2d
945, 957 (5th Cir.1981) (“The standard at the trial level on a motion for a new
trial is whether the verdict is against the clear weight of the evidence or will
result in a miscarriage of justice.”). “[W]e must affirm the verdict unless the
evidence-viewed in the light most favorable to the jury’s verdict-‘points so


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strongly and overwhelmingly in favor of one party that the court believes that
reasonable men could not arrive at a contrary [conclusion].’” Pryor v. Trane Co.,
138 F.3d 1024, 1026 (5th Cir. 1998) (quoting Jones v. Wal-Mart Stores, Inc., 870
F.2d 982, 987 (5th Cir.1989)) (internal citations and quotations omitted).
         In the present case, we cannot conclude that there has been an abuse of
discretion or misapprehension of the law. Upon review of the record, we find
that the great weight of the evidence before the jury supports the jury’s verdict.
During the trial, the jury was presented with testimony and evidence that the
officers restrained Scott on July 10, 2005, in response to his attacking an officer
and Scott’s “biting, kicking, and spitting.” The jury heard testimony that Scott
refused to comply with orders, and instead continued to fight against the officers.
The officers testified that none of them had used excessive force against Scott in
connection with the July 10, 2005 incident. And the disciplinary records at the
David Wade Correctional Center reflects that no disciplinary action was taken
against any of the correctional officers for their actions in regards to Scott’s
failure to comply on July 10, 2005.
         While Scott offers a different story and contends that the jury came to the
wrong conclusion, our duty is to determine whether the jury’s conclusion is
inapposite to the substantial weight of the evidence presented to it.       Having
reviewed the record, we cannot conclude that the verdict is against the great
weight of the evidence before it. As a result, we cannot conclude that the district
court abused its discretion in denying the Plaintiff-Appellant’s Motion for a New
Trial.
         IV.   CONCLUSION
         For the aforementioned reasons, the judgment of the district court is, in
all respects, AFFIRMED.




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