Brissette v. Gomez

Ninth Circuit

Brissette v. Gomez

42 F. App'x 1001

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 22, 2002

DocketNo. 00-17136

StatusPublished

This text of 42 F. App'x 1001 (Brissette v. Gomez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brissette v. Gomez, 42 F. App'x 1001 (9th Cir. 2002).

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Opinion

MEMORANDUM

**

Thomas Floyd Brissette, Sr., a California state prisoner, appeals pro se the district court’s judgment, after a six-day jury trial, in favor of prison officials in his 42 U.S.C. § 1983 action alleging excessive force and deliberate indifference to his safety in violation of the Eighth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Where counsel fails to move for judgment as a matter of law at the close of all the evidence, “our inquiry is limited to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a manifest miscarriage of justice.” See Smith v. Sumner, 994 F.2d 1401, 1404 (9th Cir.1993) (emphasis in original, citations omitted). Contrary to Brissette’s contention that the district court overlooked the testimony of defendant Mittelbuscher, the jury properly exercised its responsibility to resolve any conflicts in the testimony, to weigh the evidence and the credibility of witnesses, and to draw reasonable inferences from all of the evidence. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir.1996).

Where counsel fails to object or move for a new trial, we review the trial proceedings for plain error. Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir.2001). Brissette’s contentions raised for the first time on appeal do not call into serious question the integrity or fundamental fairness of the trial proceedings. See id.

We grant Brissette’s motion to file a late reply brief and order the brief received on July 11, 2002, filed.

We deny Brissette’s motions for sanctions and for a directed verdict.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

Thomas Floyd Brissette, Sr., a California state prisoner, appeals pro se the district court’s judgment, after a six-day jury trial, in favor of prison officials in his 42 U.S.C. § 1983 action alleging excessive force and deliberate indifference to his safety in violation of the Eighth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Where counsel fails to move for judgment as a matter of law at the close of all the evidence, “our inquiry is limited to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a manifest miscarriage of justice.” See Smith v. Sumner, 994 F.2d 1401, 1404 (9th Cir.1993) (emphasis in original, citations omitted). Contrary to Brissette’s contention that the district court overlooked the testimony of defendant Mittelbuscher, the jury properly exercised its responsibility to resolve any conflicts in the testimony, to weigh the evidence and the credibility of witnesses, and to draw reasonable inferences from all of the evidence. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir.1996).

Where counsel fails to object or move for a new trial, we review the trial proceedings for plain error. Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir.2001). Brissette’s contentions raised for the first time on appeal do not call into serious question the integrity or fundamental fairness of the trial proceedings. See id.

We grant Brissette’s motion to file a late reply brief and order the brief received on July 11, 2002, filed.

We deny Brissette’s motions for sanctions and for a directed verdict.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

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42 F. App'x 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brissette-v-gomez-ca9-2002.

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