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

                                                                            FILED
                                                                          October 3, 2008
                                     No. 06-41575
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

NATHANIEL KEITH SINGLETON

                                                  Plaintiff-Appellant

v.

CORRECTIONAL OFFICER IV A THOMPSON; OFFICER ROBERTSON;
OFFICER KANTOO; OFFICER FAIRLY; OFFICER HAVEN

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:02-CV-713


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Nathaniel Keith Singleton, a former Texas prisoner, filed a 42 U.S.C.
§ 1983 action against various prison officials, including Correctional Officer
Anthony Thompson. Singleton appeals the jury verdict in favor of Thompson in
these civil proceedings. His motion for leave to file an out-of-time reply brief is
granted.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-41575

      Singleton maintains that the magistrate judge erroneously admitted the
expert testimony of Dr. Bruce Smith, in violation of FED. R. EVID. 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Because
Singleton did not challenge this testimony below, we review for plain error. See
Foradori v. Harris, 523 F.3d 477, 507-08 & n.26 (5th Cir. 2008). Although
Singleton notes that Smith did not review the actual X-rays of his injuries, he
has pointed to no discrepancies between the X-rays and the radiology reports.
He also has not established that Smith’s testimony was not based on accepted
reasoning and methodology. See Rule 702. Singleton has not established that
the admission of Smith’s testimony constituted an error plain on the face of the
record that affected his substantial rights. See Robertson v. Plano City of Texas,
70 F.3d 21, 23 (5th Cir. 1995).
      Singleton also contends that the evidence was insufficient to support the
jury verdict and that the magistrate judge erred in accepting a jury verdict
contrary to the law and the evidence presented. However, Singleton’s failure to
file a motion for a new trial or for judgment as a matter of law precludes review
of his sufficiency claim. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 398-404 (2006). The judgment of the district court is thus affirmed.
      AFFIRMED; MOTION GRANTED.




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