     Case: 12-40204       Document: 00512371310         Page: 1     Date Filed: 09/12/2013




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

                                                                            FILED
                                                                        September 12, 2013
                                     No. 12-40204
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BASILLO GARCIA,

                                                  Plaintiff - Appellant

v.

JAMES HACKMAN; RICHARD CRITES,

                                                  Defendants - Appellees


                   Appeals from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:10-CV-311


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Basillo Garcia, Texas prisoner #598955, appeals the
denial of relief in his action pursuant to 42 U.S.C. § 1983, following a jury trial
tried by consent before a magistrate judge and for which Garcia had appointed
counsel. Garcia presents three issues.
       First, Garcia challenges the magistrate judge’s dismissal of his claim that
James Hackman, the craft shop supervisor, and Richard Crites, the former
warden, converted Garcia’s craft-shop property and tools. In that regard, he

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40204

contends the court erred in granting defendants’ motion for judgment as a
matter of law, pursuant to Federal Rule of Civil Procedure 50, for this claim.
      The district court may grant judgment as a matter of law “[i]f a party has
been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue”. FED. R. CIV. P. 50(a). In considering a Rule 50 motion,
the court “must review all of the evidence in the record, drawing all reasonable
inferences in favor of the nonmoving party”. Brennan’s Inc. v. Dickie Brennan
& Co. Inc., 376 F.3d 356, 362 (5th Cir. 2004). The court should also “give
credence to the evidence favoring the nonmovant as well as that evidence
supporting the moving party that is uncontradicted and unimpeached, at least
to the extent that that evidence comes from disinterested witnesses”. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000) (citation and
internal quotation marks omitted). A ruling on a motion for judgment as a
matter of law is reviewed de novo, applying the same Rule 50 standard as the
district court. See Dickie Brennan & Co. Inc., 376 F.3d at 362.
      At trial, Garcia, through appointed counsel, conceded he did not have
sufficient evidence to support his conversion claim and told the court Garcia’s
evidence dealt purely with the retaliation claim. Because Garcia did not present
evidence to support his claim for conversion, the court did not err in granting the
Rule 50 motion and dismissing that claim.
      For his second issue, Garcia challenges the sufficiency of evidence before
the jury and requests a new trial. “Part[ies] [are] not entitled to pursue a new
trial on appeal unless that party makes an appropriate postverdict motion in the
district court”. Unitherm Food Systems, Inc. v. Swift-Eckrick, Inc., 546 U.S. 394,
404 (2006). Our court requires that a party file an appropriate post-verdict
motion because appropriate determinations of Rule 50(b) motions for judgment
as a matter of law or for new trials “call[] for the judgment in the first instance
of the judge who saw and heard the witnesses and has the feel of the case which

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                                  No. 12-40204

no printed appellate transcript can impart”. Id. at 401 (citation and quotation
marks omitted). By failing to move for judgment as a matter of law after the
verdict under Rule 50(b), Garcia forfeited his right to appeal on sufficiency
grounds for a new trial. See FED. R. CIV. P. 50; see, e.g., St. Paul’s Evangelical
Lutheran Church v. Quick Response Restoration, Inc., 381 F. App’x 408, 412 (5th
Cir. 2010) (per curiam) (unpublished) (“St. Paul’s did not file a Rule 50(b)
motion. Therefore, there is no basis for this court to review its challenge to the
sufficiency of the evidence.”) (alterations, citation, and internal quotation marks
omitted), Jones v. George Cnty. Sch. Dist., 233 F. App’x 415 (5th Cir. 2007) (per
curiam) (unpublished) (“Jones’s failure to present a post-verdict Rule 50(b)
motion precludes appellate review of the sufficiency of evidence”).
      Finally, Garcia contends his trial counsel was ineffective because he failed
to object to the dismissal of the conversion claim. This claim lacks merit because
Garcia has no constitutional right to effective assistance of counsel in a civil
action. See Williams v. Wynne, 533 F.3d 360, 369 (5th Cir. 2008).
      AFFIRMED.




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