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

                                                 FILED
                                                                            July 28, 2009
                                     No. 07-30811
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk



DERRICK SCOTT

                                                   Plaintiff-Appellant

v.

RAY HANSON

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:04-CV-460


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
       Derrick Scott, Louisiana prisoner # 126372, appeals the district court’s
judgment, following a jury trial, dismissing his 42 U.S.C. § 1983 complaint
against a prison officer, Ray Hanson, for use of excessive force. Scott argues on
appeal that the district court erred in denying his motion for a new trial.
       A district court’s decision not to grant a new trial generally is not
appealable. See Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986). Instead,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-30811

it is regarded as an attack on the final judgment. See id. Scott failed to move
for judgment as a matter of law in the district court at the close of the evidence
pursuant to Federal Rule of Civil Procedure 50. Accordingly, our review is
limited to determining “whether there was any evidence to support the jury
verdict.” Flowers v. Southern Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th
Cir. 2001).
      To prevail on an Eighth Amendment claim of use of excessive force, a
plaintiff must establish that the force was not applied in a good faith effort to
maintain or restore discipline, but maliciously and sadistically to cause harm.
Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). At trial, Hanson denied using mace
on Scott outside of a disciplinary courtroom and then dragging him to his cell.
Hanson acknowledged that Scott was still restrained and inside of his cell when
mace was briefly used; however, Hanson testified that the use of mace was
justified by Scott’s continued refusal to comply with orders to cease his
disruptive behavior, which Hanson said interfered with audio equipment used
to monitor the inmates and guards.
      Therefore, there was support in the record for the jury’s conclusion that
Hanson’s actions did not constitute an excessive use of force. See Baldwin v.
Stalder, 137 F.3d 836, 838-39, 841; Flowers, 247 F.3d at 238.
      AFFIRMED.




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