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

                                                                 FILED
                                                             December 21, 2007
                               No. 04-41563
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk


GREGORY JEROME DAY

                                           Plaintiff-Appellant

v.

ROGERS; ET AL.

                                           Defendants,

FERNANDO BERTRAND; CITY OF GALVESTON

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 3:96-CV-487
                            USDC No. 3:96-CV-619


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
             Gregory Jerome Day, Texas inmate # 635963, has appealed the
magistrate judge’s judgment, following a jury trial, dismissing his civil rights
complaint against the City of Galveston and police officer Fernando Bertrand.

      *
      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should not be published and is not precedent except under the limited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. 04-41563

Day contended that Bertrand used excessive force by striking him with his police
cruiser while Day was attempting to flee on foot to avoid arrest and that the City
of Galveston’s policies and the training it provided to Bertrand were
constitutionally inadequate. Day also asserted various state tort claims.
      Day contends that the magistrate judge erred in denying his motions for
appointment of counsel.      Because the case did not present exceptional
circumstances, the magistrate judge did not abuse his discretion in refusing to
appoint counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      Day contends that the magistrate judge abused his discretion by excluding
evidence related to an arrest and conviction of fleeing from police related to an
incident that occurred several days prior to the instant arrest. Admission of this
evidence would have tended to confuse the jury. See United States v. Powers,
168 F.3d 741, 749 (5th Cir. 1999). Day’s substantial rights were not affected by
any error in its exclusion. See Valdez v. Cockrell, 274 F.3d 941, 957 (5th Cir.
2001).
      Day complains that the magistrate judge refused to permit him to
introduce evidence regarding the city’s policy regarding pursuit driving
procedure. This evidence was only marginally relevant and would have tended
to confuse the jury. See Powers, 168 F.3d at 749. Its exclusion did not affect
Day’s substantial rights. See Valdez, 274 F.3d at 957.
      Day complains that the magistrate judge excluded evidence of Bertrand’s
answers to interrogatories and requests for admissions.         His conclusional
argument does not demonstrate that the magistrate judge abused his discretion
in excluding this evidence. See Valdez, 274 F.3d at 957.
      Day contends that the magistrate judge abused his discretion by excluding
evidence regarding the defendants’ insurance policies and outstanding medical
claims. Because this evidence was offered to prove facts that were not in
dispute, the evidence was cumulative and its exclusion was not an abuse of



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discretion. See FED. R. EVID. 403; see also Dicks v. Cleaver, 433 F.2d 248, 254
(5th Cir. 1970).
      Day contends that the magistrate judge erred in denying his motions
requesting the court to require the defendants to produce various police
department employees to provide expert testimony about city policies. He
invokes Fed. R. Evid. 706(a) and 614(a) and Fed. R. Civ. P. 54(d). Because Day
did not assert these legal bases for his argument in the district court, the
magistrate judge’s ruling is reviewed for plain error. See Anderson v. Siemens
Corp., 335 F.3d 466, 471 (5th Cir. 2003); see also United States v. Olano, 507 U.S.
725, 732 (1993). The defendants were asked at a pretrial conference to provide
a witness to testify about department policies and did so by having Sergeant
Thomas Karlok present during the trial. Day was permitted to call Karlok. Day
contends for the first time on appeal that the magistrate judge erred in
permitting Karlok to testify on policy matters because he was present at the
scene of the arrest taking photos and performing “I.D. work.” Day does not state
why it was unfairly prejudicial for Karlok to testify regarding department policy.
The testimony of the other witnesses requested by Day would have been
cumulative. See Rule 403.       There was no error, plain or otherwise.        See
Anderson, 335 F.3d at 472.
      Day also complains for the first time that the magistrate judge failed to
provide him with a medical doctor to testify about the manner in which his
injuries occurred. Because the manner in which Day’s injuries occurred was not
in dispute, there was no error and Day’s substantial rights were not affected by
the magistrate judge’s failure to provide him with a medical expert.           See
Anderson, 335 F.3d at 472.
      Day complains that the magistrate judge erred by permitting Bertrand
and his partner, Phillip Fleming, to be present in court during the testimony of
other witnesses. Because Bertrand was a “party who is a natural person” and
Fleming was an employee of a party and was designated as its representative,

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the magistrate judge did not err in permitting Bertrand and Fleming to remain
in the courtroom. See FED. R. EVID. 615.
      Day contends that the magistrate judge erred in denying his motion for a
new trial. “Ordinarily, a district court’s decision not to grant a new trial under
[FED. R. CIV. P.] 59(a) is not appealable.” Toops v. Gulf Coast Marine Inc., 72
F.3d 483, 486 (5th Cir. 1996) (quotation marks omitted). Instead, it is regarded
as an attack on the final judgment. Id. Day failed to move for judgment as a
matter of law in the district court pursuant to FED. R. CIV. P. 50. Accordingly,
our review is limited to determining “whether there was any evidence to support
the jury verdict.” Flowers v. Southern Reg’l Physician Servs. Inc., 247 F.3d 229,
238 (5th Cir. 2001).
      To prevail on his excessive-force claim, Day had to establish by a
preponderance of the evidence that he suffered an injury that resulted directly
and only from the use of force that was excessive to the need and that the force
used was objectively unreasonable under the totality of the circumstances. See
Flores v. City of Palacios, 381 F.3d 391, 396, 398 (5th Cir. 2004). The jury
responded “no” to the interrogatory: “Do you find, from a preponderance of the
evidence, that the force, if any, used by Fernando Bertrand during the arrest of
Gregory Jerome Day, was unnecessary, unreasonable and excessively violent?”
Bertrand and Fleming testified that they saw Day commit a crime and flee down
the street. Before they could turn their cruiser around, Day was too far away to
pursue on foot. They chose to close the distance using the cruiser and planned
that Fleming would pursue on foot after they caught up with Day. There was
support in the record for the jury’s conclusion that Bertrand’s actions were
objectively reasonable. See id. at 398–99; Flowers, 247 F.3d at 238.
      Day contends also that the City of Galveston’s policies with regard to
“pursuit driving” and “emergency traffic” were inadequate and that Bertrand
was inadequately trained. “[M]unicipal liability under [§] 1983 attaches where
a deprivation of a right protected by the Constitution or by federal law is caused

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by an official policy.” Shields v. Twiss, 389 F.3d 142, 151 (5th Cir. 2004)
(quotation marks omitted). Day presented no evidence showing that the City of
Galveston had a policy, custom, or training program that was deliberately
indifferent to the constitutional rights of its inhabitants. The jury’s finding that
Bertrand did not violate Day’s constitutional rights necessarily precluded a
contrary finding with respect to the City of Galveston. There was evidence (or
a lack of evidence) in the record supporting the jury’s finding in favor of the City
of Galveston. See Flowers, 247 F.3d at 238.
      Day contends that the magistrate judge erred in dismissing his state law
claims for assault and mental anguish. Day contends that the magistrate judge
erred in instructing the jury with regard to the tort of battery and with respect
to Bertrand’s entitlement to qualified immunity.          Day contends that the
magistrate judge erred in failing to instruct the jury with regard to his assault
and battery claim against the City of Galveston. Because Day failed to object to
the magistrate judge’s instructions, this court’s review of these issues is for plain
error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1420 (5th Cir.
1996) (en banc).
      In ruling on Day’s motion to amend his complaint, the magistrate judge
initially granted Day’s request to add claims for assault and battery and for
“mental anguish.” However, the magistrate judge instructed the jury with
respect to Day’s battery claim against Bertrand only. A “battery” is essentially
an assault that results in offensive contact. See RESTATEMENT 2D TORTS, §§ 13
& 21 (1965). Because the question whether offensive contact occurred was not
in dispute, there was no error in failing to instruct the jury with regard to the
tort of assault.
      There was support in the record for the jury’s determination that Bertrand
did not commit a battery. See Flowers, 247 F.3d at 238. For that reason, the
jury did not reach the question whether Bertrand was entitled to qualified
immunity. Accordingly, any error in instructing the jury with regard to qualified

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immunity was harmless. See International Ins. Co. v. RSR Corp., 426 F.3d 281,
290–91 (5th Cir. 2005). Because the jury determined that Bertrand had not
committed a battery, any error in failing to instruct the jury with respect to the
City of Galveston’s liability for battery was also harmless. See id.
      There is no general legal duty in Texas to avoid negligently inflicting
mental anguish. Boyles v. Kerr, 855 S.W.2d 593, 594–600 (Tex. 1993). Mental
anguish is only an element of recoverable damages in some but not all
circumstances when the defendant breaches some other duty. Id. Although
Texas recognizes the tort of intentional inflection of emotional distress, mental
anguish was not the primary risk created by Bertrand’s actions. See Standard
Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 63 (Tex. 1998).
Moreover, the tort of intentional-affliction of emotional distress is a “gap-filler”
that arises only when a claimant has no other cause of action. See Creditwatch,
Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). Day had other constitutional
and state causes of action leaving no gap to fill. See id.
      Day contends that the magistrate judge erred in denying as moot his
pretrial motion for judgment as a matter of law and for judgment on partial
findings. Day contends that the magistrate judge should not have waited until
after the trial to rule on the motion. Because Day’s claims were rejected by the
jury, any error in failing to rule on the motion was harmless.
      Day has moved to supplement the record with deposition testimony
relating to the prior arrest for fleeing from police.        Day also wishes to
supplement the record with documents pertaining to city policies, court orders,
and the defendants’ liability coverage. To the extent that those documents were
pleadings, court orders, or were admitted as evidence at trial, they are already
in the record. Otherwise, they are improperly submitted. See Trinity Industries,
Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992).
      The motion is DENIED and the judgment is AFFIRMED.


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