Kenneth Lockamy v. Alberto Campos

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 6, 2011

No. 10-10329

Summary Calendar Lyle W. Cayce

Clerk

KENNETH LOCKAMY,

Plaintiff–Appellant,

v.

GERALD CARRILLO, #2 Response Team Officer; MARVIN KELLY, #3

Response Team Officer; STEVE RODRIGUEZ, #4 Response Team Officer;

ANGEL SERNA, #5 Response Team Officer; NICKY EMSOFF, Ranking

Supervisor of Response Team; SONIA GARCIA; MICHAEL WILSON,

Defendants–Appellees.

Consolidated with No. 10-10644

KENNETH LOCKAMY,

Plaintiff–Appellant,

v.

ALBERTO CAMPOS, #1 Response Team Officer,

Defendant–Appellee.

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 5:08-CV-53

No. 10-10329

c/w No. 10-10644

Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Kenneth Lockamy, Texas prisoner #1313595, sued Alberto Campos under

42 U.S.C. § 1983 for excessive use of force, and in the same action sued the

remaining Defendants–Appellees for deliberate indifference in not intervening

on his behalf during the alleged assault by Campos. Those remaining

Defendants–Appellees were dismissed for qualified immunity, from which order

Lockamy appealed in No. 10-10329. A jury held for Campos, from which verdict

Lockamy appealed in No. 10-10644. We consolidated those appeals and address

them now, beginning with Lockamy’s appeal of the jury verdict in favor of

Campos.

Lockamy argues that the verdict in his case against Campos was tainted

by numerous trial errors. We review the district court’s evidentiary rulings for

abuses of discretion. United States v. Clark, 577 F.3d 273, 287 (5th Cir.) (citing

Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009)), cert. denied, 130

S. Ct. 809 (2009). If we find an abuse of discretion, we then review the error

under the harmless error doctrine. Id. (citing United States v. Sanders, 343 F.3d

511, 517 (5th Cir. 2003)).

There is no merit to Lockamy’s assertion that, because the evidence was

irrelevant and highly prejudicial, the district court erred in allowing Campos to

introduce evidence of Lockamy’s prior mental health diagnoses, disciplinary

issues, and history of causing self-inflicted injuries. The evidence was not

unfairly prejudicial merely because it was adverse to Lockamy. Learmonth v.

Sears, Roebuck & Co., 631 F.3d 724, 733 (5th Cir. 2011) (citing Baker v.

Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357, 369 (5th Cir. 2008)). Moreover, 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. 10-10329

c/w No. 10-10644

danger of any unfair prejudice did not substantially outweigh the probative

value of the evidence. See FED. R. EVID. 403.

The exhibits were relevant to Campos’s defense that he did not use

excessive force and that Lockamy’s complained of injuries were most likely old

and self-inflicted. See FED. R. EVID. 406 (providing that evidence of a person’s

habit is “relevant to prove that the conduct of the person . . . on a particular

occasion was in conformity with the habit”). In addition, Lockamy’s own

testimony and evidentiary submissions included much of the same evidence of

which he now complains. Lockamy did not argue in the district court that the

evidence was also inadmissible pursuant to Federal Rules of Evidence 406, 501,

608(b), and 611. Accordingly, he cannot prevail on these issues because he has

not shown that the district court committed a plain error: a clear or obvious error

that affected his substantial rights that, if left uncorrected, would seriously

affect the fairness, integrity or public reputation of judicial proceedings.

Tompkins v. Cyr, 202 F.3d 770, 779 (5th Cir. 2000) (citing Rushing v. Kansas

City S. Ry. Co., 185 F.3d 496, 506 (5th Cir. 1999)). Indeed, the burden of proving

these factors lies with the party asserting error. Id. (citing United States v.

Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc)).

In addition, we review the following of Lockamy’s arguments for plain

error in light of his failure to object below: his asserted error regarding the

court’s (1) excluding the testimony of his listed witnesses; (2) denying his request

for a polygraph exam; (3) potentially allowing his physical appearance to

unfairly prejudice the jury; and (4) refusing to allow him to refer to documents

not admitted into evidence during his closing arguments. With respect to

Lockamy’s contention regarding calling additional witnesses, at trial the district

court stated that Lockamy’s request for subpoenas—provided to the court the

week earlier—had not afforded sufficient time to serve the witnesses. Since

there had been previous testimony regarding Lockamy’s injuries, the court

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concluded that the additional testimony would have been cumulative under Rule

403. In requesting that the court subpoena the potential witnesses, Lockamy

stated that they would “give testimony concerning their entries in plaintiff’s

medical records of the injuries plaintiff suffered and any additional info[rmation]

they may provide.” Lockamy’s medical records, however, were introduced into

evidence at trial. Thus, we cannot say that district court plainly erred by

concluding that this testimony—regarding the entries in Lockamy’s medical

records—would be cumulative.

Lockamy’s other plain error evidentiary contentions are also unavailing.

In his brief to this court Lockamy concedes that there is “no substantial law

binding courts to issue polygraph exams.” Therefore the district court’s denial

of his polygraph request was not plain error. Lockamy additionally argues that

his physical appearance unfairly prejudiced the jury. Lockamy concedes in his

brief, however, that this “was not due to any error of the court.” Similarly, the

district court’s refusing to allow Lockamy to refer to documents not in the record

during his closing argument was not plain error since we have recognized that

it is “[a] particularly indefensible tactic” to use “closing arguments to bring

before the jury damaging facts not in evidence and never established.” Edwards

v. Sears, Roebuck & Co., 512 F.2d 276, 284 (5th Cir. 1975).

Lockamy did not move for judgment as a matter of law under Federal Rule

of Civil Procedure 50(a) during the trial or, after the verdict, file either a Rule

50(b) motion for judgment as a matter of law or a Rule 59 motion for a new trial;

we thus review his assertion that there was insufficient evidence to support the

jury’s verdict for plain error. See Shepherd v. Dallas Cnty., 591 F.3d 445, 456

(5th Cir. 2009). Lockamy cannot demonstrate plain error because there is at

least some evidence in the record to support the jury’s conclusion that Campos

did not use objectively unreasonable force on Lockamy. See id. (noting that the

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c/w No. 10-10644

question is whether there is “‘any evidence’” to support the jury’s verdict (quoting

Polanco v. City of Austin, Tex., 78 F.3d 968, 974 (5th Cir. 1996))).

Lockamy also argues that Campos submitted a false exhibit and that

Campos altered the videotape of the incident. These arguments are inapposite.

We have long recognized that “‘[i]t is the function of the jury as the traditional

finder of facts, and not the court, to weigh conflicting evidence and

inferences . . . .’” Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 266 (5th

Cir. 1994) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)

(en banc)).

Furthermore, Lockamy’s argument that he lacked the proper experience,

skills, and resources to successfully present his case is equally unavailing. A

district court may appoint counsel in a § 1983 case if exceptional circumstances

exist. Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006) (per curiam). The

existence of exceptional circumstances depends upon “the type and complexity

of the case, the litigant’s ability to investigate and present the case, and the level

of skill required to present the evidence.” Baranowski v. Hart, 486 F.3d 112, 126

(5th Cir. 2007) (internal quotation marks and citation omitted). This court

reviews the district court’s denial of appointment of counsel for an abuse of

discretion. Id. Lockamy’s excessive force claim is not a particularly complex

issue, and the record reflects that he was more than capable of competently

proceeding without the assistance of counsel. Accordingly, the district court did

not abuse its discretion by denying his requests for appointment of counsel. Id.

(citing Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001)).

Lockamy also argues that the district court erred in granting summary

judgment to the remaining defendants because it did not properly consider his

deliberate indifference claims; however, he fails to challenge the district court’s

conclusion that those defendants were entitled to qualified immunity. Thus,

Lockamy has waived any challenge to the district court’s alternate basis for the

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c/w No. 10-10644

grant of summary judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993) (contentions not adequately argued in the body of the brief are deemed

abandoned). The judgment of the district court is AFFIRMED.

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