                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 10, 2007

                                                         Charles R. Fulbruge III
                           No. 05-50564                          Clerk
                         Summary Calendar


                         ROBERT G. HART,

                                                Plaintiff-Appellant,

                              versus

                     KENNETH HAIRSTON; ET AL,

                                                        Defendants,

                        KENNETH HAIRSTON,

                                                Defendant-Appellee.


          Appeals from the United States District Court
                for the Western District of Texas
                          (6:01-CV-151)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Robert G. Hart, Texas prisoner # 769108, filed this 42 U.S.C.

§ 1983 action for claimed retaliation by Captain Kenneth Hairston,

maintaining Hairston and other prison officials disciplined him for

complaining to sanitation inspectors about the prison’s kitchen

conditions.    A jury returned a verdict in favor of Hairston.

Proceeding pro se, Hart challenges:    the trial court’s Rule 406



     *
       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this opinion should not be published and is not precedent except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.
evidentiary ruling; its qualified-immunity jury instruction; and

the denial of a new-trial motion based on the sufficiency of the

evidence and the prejudicial nature of certain evidence admitted at

trial.

     Hart contends the district court erred by excluding evidence

he proffered pursuant to Federal Rule of Evidence 406 (allowing

evidence of personal habit or organizational routine to demonstrate

conduct in conformity therewith).    Hart fails to show the court

abused its discretion because he has not established the disputed

evidence fell within Rule 406.   See Kona Tech. Corp. v. Southern

Pac. Transp. Co., 225 F.3d 595, 602 (5th Cir. 2000) (evidentiary

rulings reviewed for abuse of discretion); Jones v. Southern Pac.

R.R., 962 F.2d 447, 449 (5th Cir. 1992) (“[e]vidence of habit is

not lightly established”); Reyes v. Missouri Pac. R.R. Co., 589

F.2d 791, 794 (5th Cir.1979) (four prior incidents spanning a three

and one-half year period insufficient to establish evidence of

habit).

     Concerning the jury’s finding Hairston entitled to qualified

immunity, Hart asserts:   the district court erred by instructing

the jury on qualified immunity; and Hairston was collaterally

estopped from raising such immunity at trial.    These contentions

are unavailing because our prior opinion for this action did not

render a final judgment on the qualified-immunity issue.   See Hart

v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (holding only that

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Hairston was not entitled to qualified-immunity summary judgment

based on Hart’s alleged facts); Ashe v. Swenson, 397 U.S. 436, 443

(1970) (“when an issue of ultimate fact has once been determined by

a valid and final judgment, that issue cannot again be litigated

between the same parties”).

      Finally, Hart contends the trial court erred by denying his

motion for a new trial because: the evidence does not support the

jury’s verdict; and prejudicial evidence was adduced at trial. The

denial of a new-trial motion based on sufficiency of the evidence

is reviewed for an abuse of discretion; reversible error exists

only when there was an “absolute absence of evidence to support the

jury’s verdict”.   Whitehead v. Food Max of Miss., Inc., 163 F.3d

265, 269 (5th Cir. 1998) (emphasis omitted) (internal quotation

marks ommitted). The evidence, including Hairston’s testimony that

the disciplinary action was not retaliatory, was sufficient to

uphold the verdict.   See id.

      The denial of a new-trial motion based on prejudicial acts is

reviewed to determine whether a manifest injustice would result

from allowing the verdict to stand.   Johnson v. Ford Motor Co., 988

F.2d 573, 582 (5th Cir. 1993).   Hart fails to show the purportedly

prejudicial evidence resulted in a manifestly unjust verdict. See

id.

                                                        AFFIRMED




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