     Case: 10-10329   Document: 00511530879   Page: 1   Date Filed: 07/06/2011




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

                                                                  FILED
                                                                  July 6, 2011
                                No. 10-10329
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

KENNETH LOCKAMY,

                                          Plaintiff–Appellant,
v.

GERALD CARRILLO, #2 Response Team Officer; MARVIN KELLY, #3
Response Team Officer; STEVE RODRIGUEZ, #4 Response Team Officer;
ANGEL SERNA, #5 Response Team Officer; NICKY EMSOFF, Ranking
Supervisor of Response Team; SONIA GARCIA; MICHAEL WILSON,

                                          Defendants–Appellees.

Consolidated with No. 10-10644

KENNETH LOCKAMY,

                                          Plaintiff–Appellant,
v.

ALBERTO CAMPOS, #1 Response Team Officer,

                                          Defendant–Appellee.


                 Appeals from the United States District Court
                      for the Northern District of Texas
                            USDC No. 5:08-CV-53
   Case: 10-10329       Document: 00511530879         Page: 2     Date Filed: 07/06/2011

                                      No. 10-10329
                                    c/w No. 10-10644
Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Kenneth Lockamy, Texas prisoner #1313595, sued Alberto Campos under
42 U.S.C. § 1983 for excessive use of force, and in the same action sued the
remaining Defendants–Appellees for deliberate indifference in not intervening
on his behalf during the alleged assault by Campos.                     Those remaining
Defendants–Appellees were dismissed for qualified immunity, from which order
Lockamy appealed in No. 10-10329. A jury held for Campos, from which verdict
Lockamy appealed in No. 10-10644. We consolidated those appeals and address
them now, beginning with Lockamy’s appeal of the jury verdict in favor of
Campos.
       Lockamy argues that the verdict in his case against Campos was tainted
by numerous trial errors. We review the district court’s evidentiary rulings for
abuses of discretion. United States v. Clark, 577 F.3d 273, 287 (5th Cir.) (citing
Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009)), cert. denied, 130
S. Ct. 809 (2009). If we find an abuse of discretion, we then review the error
under the harmless error doctrine. Id. (citing United States v. Sanders, 343 F.3d
511, 517 (5th Cir. 2003)).
       There is no merit to Lockamy’s assertion that, because the evidence was
irrelevant and highly prejudicial, the district court erred in allowing Campos to
introduce evidence of Lockamy’s prior mental health diagnoses, disciplinary
issues, and history of causing self-inflicted injuries. The evidence was not
unfairly prejudicial merely because it was adverse to Lockamy. Learmonth v.
Sears, Roebuck & Co., 631 F.3d 724, 733 (5th Cir. 2011) (citing Baker v.
Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357, 369 (5th Cir. 2008)). Moreover, the



       *
         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. 10-10329
                                c/w No. 10-10644
danger of any unfair prejudice did not substantially outweigh the probative
value of the evidence. See FED. R. EVID. 403.
      The exhibits were relevant to Campos’s defense that he did not use
excessive force and that Lockamy’s complained of injuries were most likely old
and self-inflicted. See FED. R. EVID. 406 (providing that evidence of a person’s
habit is “relevant to prove that the conduct of the person . . . on a particular
occasion was in conformity with the habit”).        In addition, Lockamy’s own
testimony and evidentiary submissions included much of the same evidence of
which he now complains. Lockamy did not argue in the district court that the
evidence was also inadmissible pursuant to Federal Rules of Evidence 406, 501,
608(b), and 611. Accordingly, he cannot prevail on these issues because he has
not shown that the district court committed a plain error: a clear or obvious error
that affected his substantial rights that, if left uncorrected, would seriously
affect the fairness, integrity or public reputation of judicial proceedings.
Tompkins v. Cyr, 202 F.3d 770, 779 (5th Cir. 2000) (citing Rushing v. Kansas
City S. Ry. Co., 185 F.3d 496, 506 (5th Cir. 1999)). Indeed, the burden of proving
these factors lies with the party asserting error. Id. (citing United States v.
Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc)).
      In addition, we review the following of Lockamy’s arguments for plain
error in light of his failure to object below: his asserted error regarding the
court’s (1) excluding the testimony of his listed witnesses; (2) denying his request
for a polygraph exam; (3) potentially allowing his physical appearance to
unfairly prejudice the jury; and (4) refusing to allow him to refer to documents
not admitted into evidence during his closing arguments. With respect to
Lockamy’s contention regarding calling additional witnesses, at trial the district
court stated that Lockamy’s request for subpoenas—provided to the court the
week earlier—had not afforded sufficient time to serve the witnesses. Since
there had been previous testimony regarding Lockamy’s injuries, the court


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                                  No. 10-10329
                                c/w No. 10-10644
concluded that the additional testimony would have been cumulative under Rule
403. In requesting that the court subpoena the potential witnesses, Lockamy
stated that they would “give testimony concerning their entries in plaintiff’s
medical records of the injuries plaintiff suffered and any additional info[rmation]
they may provide.” Lockamy’s medical records, however, were introduced into
evidence at trial. Thus, we cannot say that district court plainly erred by
concluding that this testimony—regarding the entries in Lockamy’s medical
records—would be cumulative.
      Lockamy’s other plain error evidentiary contentions are also unavailing.
In his brief to this court Lockamy concedes that there is “no substantial law
binding courts to issue polygraph exams.” Therefore the district court’s denial
of his polygraph request was not plain error. Lockamy additionally argues that
his physical appearance unfairly prejudiced the jury. Lockamy concedes in his
brief, however, that this “was not due to any error of the court.” Similarly, the
district court’s refusing to allow Lockamy to refer to documents not in the record
during his closing argument was not plain error since we have recognized that
it is “[a] particularly indefensible tactic” to use “closing arguments to bring
before the jury damaging facts not in evidence and never established.” Edwards
v. Sears, Roebuck & Co., 512 F.2d 276, 284 (5th Cir. 1975).
      Lockamy did not move for judgment as a matter of law under Federal Rule
of Civil Procedure 50(a) during the trial or, after the verdict, file either a Rule
50(b) motion for judgment as a matter of law or a Rule 59 motion for a new trial;
we thus review his assertion that there was insufficient evidence to support the
jury’s verdict for plain error. See Shepherd v. Dallas Cnty., 591 F.3d 445, 456
(5th Cir. 2009). Lockamy cannot demonstrate plain error because there is at
least some evidence in the record to support the jury’s conclusion that Campos
did not use objectively unreasonable force on Lockamy. See id. (noting that the




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                                   No. 10-10329
                                 c/w No. 10-10644
question is whether there is “‘any evidence’” to support the jury’s verdict (quoting
Polanco v. City of Austin, Tex., 78 F.3d 968, 974 (5th Cir. 1996))).
      Lockamy also argues that Campos submitted a false exhibit and that
Campos altered the videotape of the incident. These arguments are inapposite.
We have long recognized that “‘[i]t is the function of the jury as the traditional
finder of facts, and not the court, to weigh conflicting evidence and
inferences . . . .’” Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 266 (5th
Cir. 1994) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)
(en banc)).
      Furthermore, Lockamy’s argument that he lacked the proper experience,
skills, and resources to successfully present his case is equally unavailing. A
district court may appoint counsel in a § 1983 case if exceptional circumstances
exist. Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006) (per curiam). The
existence of exceptional circumstances depends upon “the type and complexity
of the case, the litigant’s ability to investigate and present the case, and the level
of skill required to present the evidence.” Baranowski v. Hart, 486 F.3d 112, 126
(5th Cir. 2007) (internal quotation marks and citation omitted). This court
reviews the district court’s denial of appointment of counsel for an abuse of
discretion. Id. Lockamy’s excessive force claim is not a particularly complex
issue, and the record reflects that he was more than capable of competently
proceeding without the assistance of counsel. Accordingly, the district court did
not abuse its discretion by denying his requests for appointment of counsel. Id.
(citing Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001)).
      Lockamy also argues that the district court erred in granting summary
judgment to the remaining defendants because it did not properly consider his
deliberate indifference claims; however, he fails to challenge the district court’s
conclusion that those defendants were entitled to qualified immunity. Thus,
Lockamy has waived any challenge to the district court’s alternate basis for the


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                                No. 10-10329
                              c/w No. 10-10644
grant of summary judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993) (contentions not adequately argued in the body of the brief are deemed
abandoned). The judgment of the district court is AFFIRMED.




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