     Case: 09-30589     Document: 00511170908          Page: 1    Date Filed: 07/13/2010




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

                                                 FILED
                                                                            July 13, 2010
                                     No. 09-30589
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

SUGAR RAY LEWIS,

                                                   Plaintiff-Appellant

v.

BRENGESTY, Captain; MILLS, Lieutenant; BASKOR, Lieutenant; WRIGHT,
Lieutenant; BERNETTE, Captain; WESTBROOK, Lieutenant; BUTLER,
Lieutenant; PARKER, Sergeant; JOHN DOE,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:07-CV-279


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Sugar Ray Lewis, Louisiana prisoner # 110697, filed a complaint under 42
U.S.C. § 1983 against the above named defendants, arguing that the defendants
used excessive force against him in violation of his rights under the Eighth
Amendment. Lewis moved for appointment of counsel three times before trial,
and the magistrate judge denied his motions. Lewis, acting pro se, presented an



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30589

opening statement, a closing argument, his own testimony, and the testimony
of other witnesses at a jury trial of his case. At the close of plaintiff’s evidence,
the district court directed a verdict for Brengesty. The jury found in favor of the
remaining defendants.
      Lewis takes issue with the jury verdict, arguing that the defendants did
in fact use excessive force against him and that Brengesty, who he admits
applied no force to him, was liable for failing to intervene. “We may overturn a
jury verdict only if it is not supported by substantial evidence, meaning evidence
of such quality and weight that reasonable and fair-minded men in the exercise
of impartial judgment might reach different conclusions.” Snyder v. Trepagnier,
142 F.3d 791, 795 (5th Cir. 1998). A reversal of a jury verdict may be obtained
“only if no reasonable jury could have arrived at the verdict.” Id.
      The defendants’ testimony was consistent that force was used on Lewis
only to the extent required to restore discipline after Lewis refused orders to
turn over a bundle of legal papers for inspection, attempted to bite one
defendant, and attempted to head butt another. The jury was free to credit the
defendants’ testimony over the testimony of Lewis and his witnesses, and we
must accept the jury’s credibility determination. See Guillory v. Domtar Indus.,
Inc., 95 F.3d 1320, 1334 (5th Cir. 1996); Martin v. Thomas, 973 F.2d 449, 453
(5th Cir. 1992). The verdict is not one that no reasonable jury could have
reached, and it will not be reversed. See Snyder, 142 F.3d at 795.
      Lewis also argues that the district court erred in dismissing Brengesty as
a defendant at the close of his case-in-chief on the defendants’ motion for
judgment as a matter of law, a ruling we review de novo. Raggs v. Miss. Power
& Light Co., 278 F.3d 463, 467 (5th Cir. 2002). The district court concluded that
Lewis had not put forth evidence in support of an excessive force claim as to
Brengesty, and that Lewis’s pleadings did not allege the requisite elements for
a failure-to-protect claim against him. To establish a failure-to-protect claim, a
plaintiff must show that he was “incarcerated under conditions posing a

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                                   No. 09-30589

substantial risk of serious harm and that prison officials were deliberately
indifferent to his need for protection.” Neals v. Norwood, 59 F.3d 530, 533 (5th
Cir. 1995). Lewis did not plead deliberate indifference as to Brengesty,1 and at
trial, he offered virtually no evidence against Brengesty. At the time the motion
for judgment as a matter of law was granted, the only witness even placing
Brengesty at the scene was Lewis himself, and he stated only that Brengesty
was there at some point during the incident and “just sat there and watched”
while the other officers beat him.2
       Even if Lewis’s pleadings and this evidence were sufficient to avoid a
judgment as a matter of law, “[a]t every stage of the proceeding, the court must
disregard all errors and defects that do not affect any party’s substantial rights.”
F ED. R. C IV. P 61. Because Lewis’s claim against Brengesty, construed liberally,
requires a showing that Brengesty failed to protect him from one or more of the
other defendants who were using excessive force, the failure of Lewis’s excessive
force claim against all of the other defendants would necessarily doom his
failure-to-protect claim. Thus, Lewis has not met his burden of demonstrating
that the dismissal of Brengesty at the close of his case in chief was error which
prejudiced him. See James v. NICO Energy Corp., 838 F.2d 1365, 1373 (5th Cir.
1988)(“[W]here the essential issue was presented to and rejected by the jury, any
error in presenting [the dismissed claim] to the jury was harmless error.”); see
also Goulet v. New Penn Motor Express, Inc., 512 F.3d 34, 43 (1st Cir. 2008)(“A
wrongly directed verdict in favor of one party is harmless where the jury’s
ultimate verdict necessarily defeats a claim against the dismissed party.”).




       1
        He alleged as follows: “Captain Brengesty involved by not stopping Defendants from
beating me.”
       2
          During the defendants’ case, Brengesty testified that he arrived at a point in time
when Lewis was on the floor with a small cut over his eye and that he never observed anyone
strike him.

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                                No. 09-30589

      Finally, Lewis argues that the district court erred when it denied his
motions for appointment of counsel. A district court is not required to appoint
counsel for an indigent plaintiff on appeal in a civil suit unless there exist
exceptional circumstances warranting such an appointment.            Ulmer v.
Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982). Lewis has not shown that
exceptional circumstances exist that would have required appointment of
counsel. Accordingly, he has not shown that the district court’s denial of his
motion was an abuse of discretion. See Jackson v. Cain, 864 F.2d 1235, 1242
(5th Cir. 1989). Furthermore, Lewis has not shown that exceptional
circumstances exist that would warrant appointment of appellate counsel. See
Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
      Accordingly, the judgment of the district court is AFFIRMED, and Lewis’s
motion for appointment of appellate counsel is DENIED.




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