                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


THOMAS WAYNE POWELL,                     
              Plaintiff-Appellant,
                 and
BARBARA JOHNSON POWELL; MARKETA
ROCHELLE BROWN, an infant by and
through Thomas and Barbara                       No. 00-2086
Powell, next friends and guardians,
                           Plaintiffs,
                  v.
W. J. WILBORN, Individually,
                Defendant-Appellee.
                                         
            Appeal from the United States District Court
          for the Western District of Virginia, at Danville.
               Jackson L. Kiser, Senior District Judge.
                           (CA-99-47-4)

                       Submitted: April 6, 2001

                       Decided: April 25, 2001

 Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Beverly D. Crawford, Richmond, Virginia, for Appellant. Mark L.
Earley, Attorney General, Judith Williams Jagdmann, Deputy Attor-
2                        POWELL v. WILBORN
ney General, Gregory E. Lucyk, Senior Deputy Attorney General,
Edward M. Macon, Senior Deputy Attorney General, Richmond, Vir-
ginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Thomas Wayne Powell appeals the district court’s evidentiary rul-
ings admitting expert testimony of a forensic toxicologist in his civil
rights action under 42 U.S.C.A. § 1983 (West 2000) alleging use of
excessive force. The jury returned a verdict for the Defendant, and the
district court entered judgment accordingly. We review evidentiary
rulings for abuse of discretion. See United States v. Bostian, 59 F.3d
474, 480 (4th Cir. 1995). We review arguments made in the first
instance on appeal for plain error. See United States v. Castner, 50
F.3d 1267, 1277 (4th Cir. 1995). We find no reversible error, there-
fore, we affirm.

   Powell was stopped by Virginia State Police Officer Wilborn for
repeatedly driving his vehicle across the center line. Powell admitted
to having ingested alcohol and prescription drugs. The parties dis-
agree on the nature of Powell’s behavior. Powell asserts he was pas-
sive and compliant; Wilborn asserts Powell was verbally abusive and
resisted arrest. It is undisputed that Officer Wilborn sprayed pepper
spray on Powell’s face. Powell asserts he was sprayed five times,
however, while Wilborn asserts he was sprayed twice.

   At trial, Wilborn introduced testimony of a forensic toxicologist
concerning the level of alcohol in Powell’s blood and the possible
behavioral effects of the ingestion of alcohol and prescription drugs.
Powell moved in limine to limit the testimony, arguing that it was not
relevant based on Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579
                         POWELL v. WILBORN                           3
(1993), and objected to the testimony of the effect of Powell’s pre-
scription medicine because the witness was not a medical doctor.
Both the motion and objection were overruled.

   Powell appeals these rulings, adding the additional claim that his
blood alcohol concentration was previously adjudicated, therefore, re-
adjudication here is barred by collateral estoppel. We have reviewed
the record and find no abuse of discretion or plain error. We therefore
affirm the judgment of the district court. See Powell v. Wilborn, No.
CA-99-47-4 (W.D. Va. July 20, 2000). We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

                                                          AFFIRMED
