              Case: 16-13219     Date Filed: 05/02/2017   Page: 1 of 9


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-13219
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 3:09-cv-01283-MMH-MCR

CLIFFORD LEON REID,

                                                                 Plaintiff-Appellant,

                                       versus

WALTER A. NEAL, et al.,

                                                                         Defendants,

LARRY HENDERSON,
P.A. Fl. Dept. of Corrections,
MS. MULLINAX,

                                                             Defendants-Appellees.

                           ________________________

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

                                   (May 2, 2017)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Clifford L. Reid, a Florida prisoner proceeding pro se and in forma pauperis,

challenges a jury verdict finding the defendants Larry Henderson, a physician’s

assistant at Hamilton Correctional Institution (“HCI”), and Tamey Mullinax, an

HCI security officer, not liable for their alleged excessive use of force and failure

to intervene, respectively, in violation of the Eighth and Fourteenth Amendments.

Reid also challenges the court’s denial of his motion to alter or amend the

judgment or order a new trial. On appeal, Reid argues that: (1) the district court

abused its discretion in granting the defendants’ motion to withdraw admissions;

(2) the district court prejudiced him by instructing the jury that Reid bore the

burden to prove his case by a preponderance of the evidence and improperly failed

to submit instructions to the jury concerning the defendants’ mental states and the

effects of their conduct; (3) the district court abused its discretion in not altering or

amending the judgment or ordering a new trial on the alleged basis that the

defendants committed perjury; and (4) the jury verdict in favor of the defendants

was not supported by sufficient evidence at trial. After careful review, we affirm.

      First, we are unpersuaded by Reid’s claim that the district court abused its

discretion in granting the defendants’ motion to withdraw admissions. We review

a district court’s decision on a motion to withdraw admissions for abuse of

discretion. Mut. Serv. Ins. Co. v. Frit Indus., 358 F.3d 1312, 1322 (11th Cir.

2004). Under this standard, we must affirm unless we determine that the district


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court made a clear error of judgment or applied an incorrect legal standard. Cook

ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1103 (11th Cir.

2005). Under Rule 36, a district court “may permit withdrawal or amendment [of

admissions] if it would promote the presentation of the merits of the action and if

the court is not persuaded that it would prejudice the [party requesting admissions]

in maintaining or defending the action on the merits.” Fed. R. Civ. P. 36(b).

      Reid essentially argues that the district court abused its discretion by

granting the defendants’ motion to withdraw admissions, following the defendants’

failure to respond to Reid’s request for admissions on the belief that discovery was

not yet open. But as the record shows, the court applied the appropriate legal

standard, asking: (1) whether withdrawal would promote the presentation of the

merits and; and (2) whether withdrawal would prejudice Reid’s ability to present

his case. Id. As for the first prong, the court found that withdrawal would promote

a presentation of the merits because, except for their failure to respond to Reid’s

request for admissions, Henderson and Mullinax consistently denied Reid’s factual

allegations throughout the case. The court also found that if it were to uphold the

admissions, it would eliminate any presentation of the merits because those

admissions directly tracked Reid’s allegations in his complaint.

      As for the second prong, the district court found that allowing the

admissions to be withdrawn would not prejudice Reid’s presentation of the case


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since Reid knew the defendants disputed the factual allegations in Reid’s request

throughout the case. Moreover, the defedants had mitigated any prejudice by

sending Reid a letter advising him that they believed his request was invalid and

would not respond to it. The court added that Reid understood the need to, had the

ability to, and actually did undertake other discovery. On this record, we cannot

say the district court abused its discretion by allowing the defendants to withdraw

the admissions. Cook, 402 F.3d at 1103; Frit Indus., 358 F.3d at 1322.

      We also find no merit to Reid’s challenge to the jury instructions. We

review jury instructions de novo to determine whether they misstate the law or

mislead the jury to the prejudice of the objecting party. Palmer v. Bd. of Regents

of Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir. 2000). However, under the

invited error doctrine, a party waives the right to challenge a jury instruction on

appeal if that party proposed instructions that the district court accepted. Ford ex

rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1294 (11th Cir. 2002) (holding that

invited error occurred when the district court adopted the challenging party’s

suggested changes to the court’s proposed jury instructions). The invited error

doctrine also bars our review where a party, rather than remaining silent and failing

to object, responds that it accepts the court’s proposed instruction. Id.

      In reviewing jury instructions, we look to whether, considering the jury

instructions as a whole, the district court’s instructions allowed the jury to


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understand the issues and did not mislead the jury. Palmer, 208 F.3d at 973. If the

instructions accurately reflect the law, we give the district court wide discretion in

their style and wording. Id. Where the district court failed to give an instruction,

we reverse only if that failure resulted in prejudice to the party requesting the

instruction.   Id.   A prisoner plaintiff has the burden to prove his Eighth

Amendment claim alleging excessive use of force. See Wilkins v. Gaddy, 559

U.S. 34, 36, 40 (2010) (holding that the prisoner alleging excessive use of force

had to prove the assault occurred, that it was carried out maliciously or sadistically,

and that he suffered injuries).

      Reid argues on appeal that the district court prejudiced him by instructing

the jury that Reid bore the burden to prove his case by a preponderance of the

evidence and that it improperly failed to submit instructions to the jury concerning

the defendants’ mental states and the effects of their conduct. However, Reid

waived both challenges to the jury instructions under the invited error doctrine.

See Ford, 289 F.3d at 1294. As the record reveals, Reid joined with Henderson

and Mullinax in submitting joint proposed jury instructions to the district court. To

the extent those instructions discussed Reid’s burden of proof, the district court

adopted the proposed language in its entirety, making only minor changes to style

and wording. Similarly, as for the instructions concerning the elements of Reid’s

claim against Henderson, the district court adopted the entirety of the parties’


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jointly proposed instruction. Moreover, Reid expressly said he had no objections

to any of the jury instructions both before and after the court read them to the jury.

Accordingly, we decline to review Reid’s challenge to the jury instructions based

on the invited error doctrine. See id.

      Next, we reject Reid’s argument that the district court abused its discretion

when it did not alter or amend the judgment or order a new trial even though

Henderson and Mullinax committed perjury. We review the denial of a Rule 59

motion for abuse of discretion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.

2007). Under Rule 59, a party may move the court to alter or amend the judgment

or grant a new trial within 28 days after the entry of judgment. Fed. R. Civ. P.

59(a)(1), (b). A Rule 59 motion cannot be used to raise arguments or present

evidence that was available before the court entered the judgment. Arthur, 500

F.3d at 1343. Instead, to succeed on a Rule 59 motion, the movant must present

newly-discovered evidence or manifest errors of law or fact. Id.

      It is the function of the jury, as the trier of fact, to weigh conflicting

evidence and determine the credibility of witnesses. J & H Auto Trim Co. v.

Bellefonte Ins. Co., 677 F.2d 1365, 1368 (1982). Testimonial inconsistencies, in

contrast to clear cases of deceit, should be tested through cross-examination,

allowing the jury to weigh the inconsistent testimony in determining the witness’s

credibility. See Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1316–17 (11th Cir.


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2007) (discussing whether inconsistencies between an affidavit and deposition

testimony allow the court to disregard the affidavit).

      Here, Reid has not shown that the district court abused its discretion in

denying his Rule 59 motion. Reid did not offer any new evidence or proof of

perjury or other evidentiary misconduct, but only alleged, as he now argues, that

the defendants’ testimony must have been perjured because inconsistencies

existed. Reid had the opportunity to, and did, test the inconsistencies during the

cross-examination of Henderson and Mullinax, and the jury was permitted to make

its own credibility determination based on that information. J & H Auto Trim. Co.,

677 F.2d at 1368. Thus, the district court did not abuse its discretion in concluding

that Reid was not entitled to relief under Rule 59 because Reid failed to present

newly-discovered evidence or manifest errors of law or fact, and the evidence

supported the jury’s verdict. Accordingly, we affirm the district court’s denial of

Reid’s motion to alter or amend or order a new trial. Arthur, 500 F.3d at 1343.

      Finally, we are unpersuaded by Reid’s argument that the jury verdict in

favor of Henderson and Mullinax was not supported by sufficient evidence at trial.

As we’ve noted, we review the denial of a Rule 59 motion to alter or amend or

order a new trial for abuse of discretion. Arthur, 500 F.3d at 1343; Brochu v. City

of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). But we generally review

sufficiency of the evidence claims de novo. J & H Auto Trim Co., 677 F.2d at


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1368 (“Since the sufficiency of the evidence to support a verdict is a question of

law, the standard of review on appeal is the same as that applied by the trial court

in making its initial ruling”); see also Brochu, 304 F.3d at 1154 (discussing the

standard of review on the appeal of the denial of a motion for judgment as a matter

of law and a motion for a new trial). A verdict must stand unless no legally

sufficient evidentiary basis exists for a jury to find for the prevailing party,

otherwise we will not second-guess the jury or substitute our judgment for the

jury’s judgment. Brochu, 304 F.3d at 1154–55. Ultimately, “[i]t is the jury’s task

-- not ours -- to weigh conflicting evidence and inferences, and determine the

credibility of witnesses.” Id. (quotation omitted).

      To show an excessive use of force in the custodial setting, in violation of the

Eighth Amendment, a plaintiff must illustrate that the force was applied

maliciously and sadistically to cause harm, rather than applied in a good faith

effort to maintain or restore discipline. Skirtch v. Thornton, 280 F.3d 1295, 1300

(11th Cir. 2002). Whether force was applied maliciously and sadistically is a

function of four factors: “the need for the application of force, the relationship

between that need and the amount of force used, the threat reasonably perceived by

the responsible officials, and any efforts made to temper the severity of a forceful

response.”   Id. (quotation omitted).    Additionally, to succeed on a failure to

intervene, in violation of the Eighth Amendment, a plaintiff must show that the


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official was present at the scene and failed to take reasonable steps to protect the

victim from the other official’s excessive use of force. Id. at 1301.

      Here, Reid has failed to show that no legally sufficient evidentiary basis

existed to support the jury’s verdict. Brochu, 304 F.3d at 1154–55. The jury’s sole

finding was that Henderson did not subject Reid to an excessive use of force, and

that finding disposed of the entirety of Reid’s claims against Henderson and

Mullinax. Skirtch, 280 F.3d at 1300–01. The evidence at trial included medical

records, testimony from the department of corrections inspector general inquiries,

and live witness testimony in which Henderson and Mullinax consistently said that

Henderson gently lowered Reid to the ground, never kneed or punched Reid, and

conducted Reid’s examinations appropriately. Although there may have been a

few minor inconsistencies between the documentary evidence and the testimony at

trial, Reid had the opportunity to impeach the witnesses during cross-examination,

and the jury was allowed to weigh the conflicting evidence and the credibility of

the witnesses in reaching its verdict. Brochu, 304 F.3d at 1154–55. Moreover, as

we’ve held, Reid has not shown that any of the district court’s evidentiary

decisions were erroneous. Thus, a legally sufficient basis existed in the evidence

to support the jury’s verdict, and Reid cannot show that the district court abused its

discretion in holding that a new trial was not necessary. Arthur, 500 F.3d at 1343.

      AFFIRMED.


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