     Case: 17-31005      Document: 00515507605         Page: 1    Date Filed: 07/29/2020




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

                                                                                 FILED
                                    No. 17-31005                             July 29, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
HENRY HICKSON,

                                                 Plaintiff-Appellant

v.

GABRIEL HEBERT, Captain,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-580


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Henry Hickson, Louisiana prisoner # 369635, appeals the denial of his
motions for judgment as a matter of law and for a new trial after a jury rejected
his 42 U.S.C. § 1983 complaint alleging that Captain Gabriel Hebert used
excessive force against Hickson in violation of the Eighth Amendment. Hickson
argues that the district court erred in denying his motions because the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-31005

evidence reveals that Captain Hebert did not need to use any force and that
the incident resulted in a permanent eye injury.
      We review the denial of a Federal Rule of Civil Procedure 50(b) motion
for judgment as a matter of law de novo, see Arsement v. Spinnaker Expl. Co.,
LLC, 400 F.3d 238, 248 (5th Cir. 2005), and the denial of a motion for a new
trial pursuant to Federal Rule of Civil Procedure 59(a) for abuse of discretion,
see Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016). Where, as here, a jury
trial is involved, a Rule 50(b) motion for judgment as a matter of law is viewed
as “a challenge to the legal sufficiency of the evidence supporting the jury’s
verdict.” Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir.
2001) (cleaned up). When considering claims of excessive force, relevant factors
include the extent of injury suffered, “the need for application of force, the
relationship between that need and the amount of force used, the threat
reasonably perceived by the responsible officials, and any efforts made to
temper the severity of a forceful response.” Hudson v. McMillian, 503 U.S. 1,
6-7 (1992) (cleaned up).
      Captain Hebert asserted that he provided a one-second burst of a
chemical agent after Hickson continuously refused to comply with orders and
that Hickson was given a shower within a reasonable time of the incident.
Hickson asserts that Captain Hebert used excessive force by administering
more than a one-second burst of the chemical agent without provocation and
withholding a shower for almost an hour. Here, the jury chose to believe
Captain Hebert’s version of events. It was within the purview of the jury to
make factual and credibility determinations, Olibas, 838 F.3d at 450, and the
jury’s verdict was not outside of the realm of reason. Given the facts presented,
which included testimony that the chemical agent did not cause any injuries,




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                                 No. 17-31005

the evidence did not point so strongly and overwhelmingly in Hickson’s favor
that reasonable jurors could not rule against him. See Flowers, 247 F.3d at 235.
      We will not overturn the district court’s denial of Hickson’s Rule 50(b)(3)
motion for judgment as a matter of law because there was a “legally sufficient
evidentiary basis” for the jury’s verdict. Arsement, 400 F.3d at 249; see also
Hudson, 503 U.S. at 6-7; Flowers, 247 F.3d at 235. Because Hickson fails to
show that the district court erred in denying his motion for judgment as a
matter of law under de novo review, he likewise cannot demonstrate that the
district court erred in denying his motion for a new trial under the more
deferential abuse of discretion standard. See Olibas, 838 F.3d at 449.
Accordingly, the judgment of the district court is AFFIRMED.




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