           Case: 15-11235    Date Filed: 12/29/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11235
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 3:11-cv-00520-CJK



JARVEY JACOBS, JR.,

                                                            Plaintiff-Appellant,

                                   versus

WALTER GIELOW,
Lieutenant,
JEFFERSON DAVIS,
Sergeant,
KYLE HALL,
CO 1 Officer,


                                                         Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (December 29, 2015)
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Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Jarvey Jacobs, Jr., brought this action under 42 U.S.C. § 1983, claiming that

on November 29, 2010, while he was an inmate at Santa Rosa Correctional

Institution, a prison operated by the Florida Department of Corrections, he was

subjected to excessive force at the hands of several correctional officers, including

Walter Gielow, Jefferson Davis and Kyle Hall, after he summoned Gielo and

Davis to his cell and informed them that he was feeling suicidal. After Jacobs’s

motion for the appointment of counsel was denied, the parties joined issue, and

Gielow, Davis and Hall moved the District Court for summary judgment. The

court granted Gielow’s motion, dismissing him from the case, and denied Davis’s

and Hall’s motions. The parties thereafter consented to the disposition of the case

by a Magistrate Judge. 1

      Jacobs’s excessive force claim was tried to a jury. The jury found for Davis

and Hall, and the Magistrate Judge directed the entry of judgment in their favor.

Jacobs thereafter moved the court for a new trial, citing five grounds for relief.

The court denied the motion in an order that listed the five grounds and addressed

them sequentially. The part of the order pertaining to the motion for new trial

appears as an appendix to this opinion. After the Magistrate Judge denied Jacobs’s


      1
          See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

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motion for new trial, Jacobs moved the court for leave to amend his motion for

new trial. The motion was denied.

      Jacobs now appeals pro se the denial of his motion for new trial and motion

for leave to amend the motion for new trial. In his brief, he states: “Plaintiff’s

Motion for a New Trial is based on Five Issues: Plaintiff now only appeals Issue #

3. Plaintiff contends the Jurors were biased, did not examine or consider Plaintiff’s

evidence, and ‘deliberated for an abnormal time period.’” Appellant’s Brief at 10;

Appendix. He contends that had he been given leave to amend his motion, he

would have added a ground: “that the jury verdict was against the weight of the

evidence.” Appellant’s Brief at 10-11. Notwithstanding that his brief says that he

is only appealing the Magistrate Judge’s ruling on issue # 3, the brief adds an

argument not presented to the Magistrate Judge, “Point 2,” that “[t]he Jury verdict

was against the weight of the evidence in this case.” Id. at 12-13.

      We review the “denial of a motion for new trial under the abuse of discretion

standard.” Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002).

“A motion for a new trial may be granted if the district court judge believes the

verdict rendered by the jury was contrary to the great weight of the evidence.”

Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1320 n.3 (11th Cir. 1999).

      We find no precedent to support Jacob’s third ground as a basis for granting

a new trial. But assuming its validity, Jacobs’s brief does not tell us why the


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reason the Magistrate Judge gave for rejecting it is off base. We therefore affirm

the Magistrate Judge’s denial of a new trial on ground 3, and turn to the weight of

the evidence issue.

      There are five exceptions to the rule that we do not consider an issue not

previously presented to the court below.

      First, an appellate court will consider an issue not raised in the district
      court if it involves a pure question of law, and if refusal to consider it
      would result in a miscarriage of justice. Second, the rule may be relaxed
      where the appellant raises an objection to an order which he had no
      opportunity to raise at the district court level. Third, the rule does not
      bar consideration by the appellate court in the first instance where the
      interest of substantial justice is at stake. Fourth, a federal appellate court
      is justified in resolving an issue not passed on below ... where the proper
      resolution is beyond any doubt. Finally, it may be appropriate to consider
      an issue first raised on appeal if that issue presents significant questions
      of general impact or of great public concern.

      Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (quoting Dean

Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360–61 (11th Cir.1984)

(footnotes and citations omitted). The only exception remotely applicable to the

“weight of the evidence” issue Jacobs raises is the third exception, the notion being

that a verdict that is against the great weight of the evidence implicates the interest

of substantial justice. We find the exception inapplicable.

      “Under the Eighth Amendment, force is deemed legitimate in a custodial

setting as long as it is applied ‘in a good faith effort to maintain or restore

discipline [and not] maliciously and sadistically to cause harm.’” Skrtich v.


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Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (citations omitted) (alteration in

original). Several factors should be considered when determining whether force

was applied maliciously and sadistically to cause harm, including: (1) the need for

the application of force; (2) the relationship between the need for force and the

amount of force used; (3) the threat reasonably perceived by the responsible

officials; and (4) any efforts made to temper the severity of a forceful response. Id.

Inferences may be drawn from considering these factors as to whether the use of

force could have been thought necessary. Id. at 1300-01.

      The testimony adduced at Jacobs’s trial was plainly sufficient for a

reasonable jury to conclude that Davis and Hall reasonably perceived that Jacobs

presented an imminent threat, that he had to be controlled, and that the force Davis

and Hall used to do that was reasonable. In sum, the Magistrate Judge did not

abuse his discretion in denying Jacobs’s motion for new trial or his motion for

leave to amend that motion.


      AFFIRMED.




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                                     APPENDIX

Motion for Retrial

        FEDERAL RULE OF CIVIL PROCEDURE 59 provides that after a jury
trial the court may, on motion, grant a new trial on all or some of the issues–and to
any party–for any reason for which new trial has heretofore been granted in an action
at law in federal court. Fed. R. Civ. Pro. 59(a)(1). “The Supreme Court has
explained that a motion for new trial may be granted if based on a claim that (1)
‘the verdict is against the weight of the evidence’; (2) ‘the damages are excessive,
or that, for other reasons, the trial was not fair to the party moving’; or (3) ‘raise[s]
questions of law arising out of alleged substantial errors in admission or rejection
of evidence or instructions to the jury.’” Registe v. Linkamerica Exp., Inc., No.
3:12-cv-1110-HES-JRK, 2015 WL 1288138 *5 (M.D. Fla. March 18, 2015) (citing
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)).

       Plaintiff requests a new trial based on five issues: (1) plaintiff claims he
should have been appointed counsel due to his limited access to the law library, his
lack of legal training and education, and the existence of credibility issues; (2)
related to the appointment of counsel issue, plaintiff argues he had to cross
examine witnesses without any legal training; (3) plaintiff contends the jurors were
biased, did not examine or consider plaintiff’s evidence, and deliberated for an
“abnormal time period”; (4) plaintiff asserts defendants Hall and Davis, and
witness Gielow broke the law by perjuring themselves and the court showed
favoritism to these individuals by ignoring the law and justice; and (5) plaintiff
claims he was not given time to select jurors or go over their questionnaires. (Doc.
231, p. 1-3).

       The court finds the issues plaintiff raises do not constitute adequate grounds
for a new trial. As to the appointment of counsel and cross examination issues, the
court believes plaintiff is understating his ability to prosecute this case. Plaintiff
capably presented his case to the jury, particularly on cross examination of defense
witnesses. Although the trial did involve credibility issues, plaintiff effectively
questioned witnesses and identified possible inconsistencies between their
testimony and other evidence. Plaintiff was articulate both in his testimony and in
arguing matters to the court and jury. The fact the jury ultimately credited the
defendants’ version of events does not suggest plaintiff’s performance was so
deficient as to require the appointment of counsel and a retrial. Similarly, the claim
that Hall, Davis, and Gielow committed perjury while testifying is left for the
jury’s consideration. The parties introduced evidence from which a reasonable jury

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could return a verdictfor the defendants. In such a case, the court cannot overturn the
jury’s resolution of credibility and factual issues. Plaintiff’s conclusory allegation
of juror bias also does not establish the necessity of a new trial. Plaintiff does not
provide any factual support for his claim of bias and, as noted above, there was
sufficient evidence presented to the jury to find for the defendants. The record will
affirmatively reflect that both the Deputy Clerk and the undersigned assisted
plaintiff in preparing, marking, and presenting his exhibits. Finally, plaintiff claims
he was given insufficient time to select jurors or review their questionnaires. At
trial, however, plaintiff did not indicate that he required more time to perform these
activities or was otherwise uncomfortable with how the selection of the jury was
proceeding. Thus, none of the issues plaintiff raises, singly or in combination,
demonstrate the need for a new trial.




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