     Case: 09-60693 Document: 00511332603 Page: 1 Date Filed: 12/27/2010




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

                                                 FILED
                                                                         December 27, 2010
                                     No. 09-60693
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAMES C. WINDING,

                                                   Plaintiff-Appellant

v.

THE GEO GROUP, INC.,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 4:07-CV-69


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       James C. Winding, Mississippi prisoner # K8115, is appealing the
magistrate judge’s orders denying his motion and supplemental motion for a
judgment as a matter of law and his motion for a new trial by jury on his 42
U.S.C. § 1983 complaint, which was dismissed following a bench trial before the
magistrate judge.       Winding alleged that the Geo Group, Inc. (Geo) or its
authorized decisionmaker failed to enforce a policy of protecting inmates from



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60693

harm and it resulted in his being stabbed and injured by an inmate with known
violent propensities.
      Winding argues that the magistrate judge erred in denying his motion and
supplemental motion for a judgment as a matter of law based on the evidence
that Geo or its authorized decisionmaker knew or should have known that
housing Winding with Willie Proctor created a dangerous risk of harm in light
of Proctor’s prior conduct and mental illness. He contends that the failure to
enforce the written prison policy to protect inmates from harm can be inferred
from the evidence presented at trial.
      Winding’s postjudgment Federal Rule Civil Procedure 59(e) motion merely
disputed the magistrate judge’s factual findings and legal conclusions based on
the evidence presented at his trial. Rule 59(e) cannot be used to rehash the
evidence or make arguments that could have been offered or raised before the
entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.
2004). Windings’s assertions in his motion did not demonstrate any grounds for
relief under Rule 59(e), such as manifest error of law or fact or the discovery of
new evidence. See Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).
The district court did not abuse its discretion in denying the postjudgment
motion because Winding did not raise any challenges entitling him to relief
under Rule 59(e).
      Further, Winding’s challenge to the magistrate judge’s denial of his
request to reconsider his findings of fact and conclusion of law require this court
to review a transcript of the trial. Winding’s failure to provide a transcript may
be the basis for the dismissal of the entire appeal. See F ED. R. A PP. P. 3(a)(2);
F ED. R. A PP. P. 10(b)(2); Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.1990).
Windings’s pro se and in forma pauperis status does not preclude consideration
of his initial representation to the court that a transcript was not required to
pursue his appeal nor excuse his failure to seek the transcript from this court
until after filing his brief. See Alizadeh v. Safeways Stores, Inc., 910 F.2d 234,

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237 (5th Cir. 1990) The lack of a transcript is an additional consideration in
dismissing this appeal as frivolous.
      Winding argues that the magistrate judge erred in denying his
postjudgment motion for a new jury trial. Winding expressly waived his right
to a jury trial at a pretrial conference and did not move prior to trial to withdraw
the waiver. See F ED. R. C IV. P. 38; F ED. R. C IV. P. 39. The district court did not
abuse its discretion in denying Winding’s request for a jury trial made in a
postjudgment motion. See Daniel Intern. Corp. v. Fischback & Moore, Inc., 916
F.2d 1061, 1064 (5th Cir. 1990).
      Winding has failed to raise issues of arguable merit.           His appeal is
dismissed as frivolous. See 5 TH C IR. R. 42.2. The dismissal of this appeal as
frivolous counts as a strike for purposes of the IFP provisions of 28 U.S.C.
§ 1915(g).   See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
Winding is cautioned that once he accumulates three strikes, he may not proceed
IFP in any civil action or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g). The court notes that the recent dismissal as frivolous of Winding’s
appeal in Winding v. Grimes, No. 09-60943 constitutes another strike under
§ 1915(g) against him.
      Winding’s motion to file a supplemental reply brief is granted. Winding
has filed a motion for appointment of counsel, arguing that he is without funds
to investigate his claims and that he does not have the skills and knowledge to
proceed with his case. Because Winding has not made a showing of exceptional
circumstances warranting the appointment of counsel, the motion for
appointment of counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982). Winding is requesting this court to strike Geo’s brief, the clerk’s
order providing it with a ten-day extension to file the brief, and to enter a default
judgment against Geo based on its failure to file a timely brief. Geo filed a
motion to file a brief out-of-time, and the clerk granted the motion. Geo filed its

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brief on the day the motion to file the out-of-time brief was granted. Winding
has not shown any valid legal basis for the court to strike the appellee’s brief or
to grant a default judgment. The motions for default judgment, to strike the ten-
day extension to file the brief, and to strike the appellee’s brief are denied.
      Winding filed a motion to supplement the record with his medical records
and prison records showing Proctor’s mental illness and violent behavior. These
same records were filed in the district court record.       Thus, the motion to
supplement is denied. Winding filed another motion to supplement the record
with a MDOC policy on housing and other documents already part of the record.
These documents merely support Winding’s previous arguments that he should
not have been housed with Proctor. The motion to supplement to submit the
policy statement is also denied.
      Winding has filed several petitions seeking writs of mandamus ordering
different actions by the district court. He complains that the district court did
not rule on all of his motions, that defense counsel should be sanctioned, and
that he is entitled to a new trial by jury.       The mandamus remedy is an
extraordinary one, which the court grants only in the clearest, most compelling
cases. A party seeking mandamus relief must show both that he has no other
adequate means for achieving the requested relief and that he has a clear and
indisputable right to mandamus relief. In re Willy, 831 F.2d 545, 549 (5th Cir.
1987).
      The record reflects that the district court has ruled on all the motions
presented to it. Winding has raised arguments in these petitions that he raised
or could have raised on appeal. He has not shown extraordinary circumstances
entitling him to mandamus relief. His petitions are denied.
      APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION TO
FILE SUPPLEMENTAL REPLY BRIEF IS GRANTED; ALL OTHER MOTIONS
DENIED; PETITIONS FOR WRITS OF MANDAMUS DENIED.



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