     Case: 15-30101      Document: 00513480883         Page: 1    Date Filed: 04/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-30101                                 FILED
                                  Summary Calendar                           April 26, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
ZZEUNDRE JACOBS,

                                                 Plaintiff-Appellant

v.

JAMES M. LEBLANC, Secretary; DARREL VANNOY, Warden; KEVIN
BENJAMIN, Assistant Warden, III; JIMMY SMITH, Assistant Warden, II;
SHIRLEY VALENTINE, Sergeant,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CV-271


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Zzeundre Jacobs, Louisiana prisoner # 447048, filed
a 42 U.S.C. § 1983 lawsuit against the Defendants-Appellees, alleging that
they violated his constitutional rights by failing to enforce the prison’s no-
smoking policy, resulting in his exposure to unreasonable amounts of
environmental tobacco smoke (ETS). The district court dismissed James M.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30101

LeBlanc before trial and dismissed Burl Cain and Jimmy Smith following the
presentation of Jacobs’s case to the jury, which returned a verdict in favor of
the remaining defendants, Kevin Benjamin and Shirley Valentine.
      Jacobs first contends that the district court erred in denying his motions
for summary judgment. The case proceeded through a trial on the merits,
however, so Jacobs cannot now appeal the district court’s ruling on his
previously filed summary judgment motions. See Ortiz v. Jordan, 562 U.S. 180,
184 (2011).
      Jacobs next asserts that the district court improperly excluded three of
his exhibits pursuant to the defendants’ motion in limine: (1) a letter, copies of
which he mailed to different organizations that he says proves he was telling
people about the policy violations; (2) a letter he received from the American
Nonsmokers’ Rights Foundation that he says proves Louisiana correctional
centers are supposed to be smoke-free; and (3) an article from the 2006 U.S.
Surgeon General’s Report that he says proves there is no safe level of or
exposure to secondhand smoke. The district court excluded these exhibits
because they were irrelevant and constituted inadmissible hearsay. Jacobs has
failed to show that the district court abused its discretion because he fails to
argue, must less show, that his substantial rights were affected by their
exclusion. See Buford v. Howe, 10 F.3d 1184, 1188 (5th Cir. 1994); Kelly v.
Boeing Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995).
      Jacobs also contends that the district court abused its discretion in
denying his motion to appoint a medical expert, namely, an otolaryngologist,
which is an ear, nose, and throat specialist. Under Federal Rule of Evidence
706(a), the district court may appoint an expert witness to aid the court, not
for a party’s benefit. See Hannah v. United States, 523 F.3d 597, 600 (5th Cir.
2008). The district court denied the motion because Jacobs was seeking the



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                                  No. 15-30101

appointment of the expert for his own benefit. Jacobs has failed to show that
the appointment would aid the court or the jury in understanding his claims
or the evidence; and the evidence in the record included the kind of evidence
that an expert would be expected to give. Jacobs has provided nothing to show
that the district court abused its discretion in denying his motion to appoint
an expert. See Hannah, 523 F.3d at 600. Furthermore, because the jury
determined that Jacobs did not satisfy his burden of proof with respect to the
first element of his claim—that he was exposed to unreasonable levels of ETS—
it never reached the third element of his claim—whether the defendants’ acts
or omissions caused Jacobs’s injuries. Testimony from an otolaryngologist
would have been irrelevant.
      Jacobs next maintains that the district court abused its discretion when
it denied his motions for the appointment of counsel. Relying on the factors
discussed in Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), the district
court determined that the appointment of counsel was not warranted. On
appeal, Jacobs merely rehashes, in an abbreviated and conclusional fashion,
his previously asserted arguments. He has failed to show that the district court
abused its discretion in denying his motions to appoint counsel. See
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).
      Finally, Jacobs complains of the jury’s verdict in favor of the remaining
defendants. His failures to preserve this issue by filing a Rule 50 motion for
directed verdict at trial or to produce a transcript of the trial prevent us from
disturbing the jury’s verdict. See FED. R. APP. P. 10(b)(2).
      AFFIRMED.




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