     Case: 09-10923 Document: 00511446004 Page: 1 Date Filed: 04/14/2011




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

                                                 FILED
                                                                            April 14, 2011
                                     No. 09-10923
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MARCUS DEON JOHNSON,

                                                   Plaintiff-Appellant

v.

ANDRE EVANS; JAMES WESTBROOK; THOMAS JACOBSON,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:06-CV-766


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Marcus Deon Johnson, former Texas prisoner # 1358708, appeals from the
district court’s judgment for the defendants following a bench trial in Johnson’s
42 U.S.C. § 1983 action.         He contends that Officer James Westbrook used
excessive force by punching him in the face during an episode in which officers
restrained him; that his injuries were not de minimis; that Westbrook was not
entitled to qualified immunity; that other officers failed to protect him; and that
he received ineffective assistance of trial counsel. Johnson moves for leave to file

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-10923 Document: 00511446004 Page: 2 Date Filed: 04/14/2011

                                  No. 09-10923

an out-of-time reply brief and for oral argument; Johnson’s motions are
DENIED.
      We review the district court’s findings of fact for clear error and questions
of law de novo. Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488
(5th Cir. 2006).   The district court’s factual findings in Johnson’s case are
supported by the trial testimony of Westbrook, Officer Andre Evans, and Officer
Thomas Fortner. Those officers’ account of events indicated that Johnson spat
on Evans from inside his cell; that Johnson refused to comply with officers’
commands before the officers entered his cell; that Fortner was unable to
restrain Johnson’s arms before Westbrook entered the cell; and that Westbrook
punched Johnson in the face in order to negate the threat of physical harm. On
the facts as found by the district court, Westbrook did not use excessive force
against Johnson. See Williams v. Bramer, 180 F.3d 699, 703, clarified on reh’g,
186 F.3d 633, 634 (5th Cir. 1999); Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th
Cir. 1993). We realize that the district court had other evidence before it,
including the testimony of Officer Thomas Jacobson, that, if credited, might have
suggested a different factual scenario. Credibility findings, however, are within
the realm of the finder of fact, see United States v. Nixon, 881 F.2d 1305, 1310
(5th Cir. 1989), and Johnson has not shown that we should disturb the district
court’s credibility findings in Johnson’s case. Because we affirm the district
court’s conclusion that Westbrook did not use excessive force against Johnson,
we need not address whether his injuries were de minimis or whether Westbrook
was entitled to qualified immunity. See Ontiveros v. City of Rosenberg, Tex., 564
F.3d 379, 382 (5th Cir. 2009); Williams, 180 F.3d at 704.
      Johnson does not brief his failure-to-protect issue beyond merely stating
it. He has failed to brief the issue for appeal. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Johnson raised his ineffective assistance claim for the first time in his
postjudgment motion pursuant to Rule 60(b) of the Federal Rules of Civil

                                        2
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                                  No. 09-10923

Procedure. Because Johnson did not file a notice of appeal following the denial
of the Rule 60(b) motion, this court lacks jurisdiction to address the ineffective
assistance claims. See F ED. R. A PP. P. 4(a)(4)(B); Williams v. Chater, 87 F.3d
702, 705 (5th Cir. 1996).
      AFFIRMED.




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