Driver v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 12, 2001
• Docket: 00-20886
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20886 Conference Calendar

TIMOTHY RAY DRIVER,

Plaintiff-Appellant,

versus

WAYNE SCOTT; ROCHELLE MCKINNEY; KENT RAMSEY; PRISCILLA DALY; MARSHALL HERKLOTZ; T. GARCIA; BELL, Captain; D. DRECKT; E. FOX; F. CHERIAN; V. PORTER; J. AGULAR; SIMMONS, Officer; CERVANTES,

Defendants-Appellees. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-96-CV-1895 -------------------- December 11, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Timothy Ray Driver, Texas prisoner # 663510, appeals the

jury’s verdict in favor of the defendants on his Eight Amendment

claims brought pursuant to 42 U.S.C. § 1983. Driver argues that

the evidence was insufficient to support the jury’s verdict.

Driver has not presented an appealable issue. “[I]n the

absence of a motion for [judgment as a matter of law], the

sufficiency of the evidence supporting the jury's findings is not

reviewable on appeal. Federal appellate courts simply do not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20886 -2-

directly review jury verdicts.” Coughlin v. Capitol Cement Co.,

571 F.2d 290, 297 (5th Cir. 1978). Driver did not move for

judgment as a matter of law in the district court at the close of

his case or at the close of the evidence. See Serna v. City of

San Antonio, 244 F.3d 479, 481 (5th Cir. 2001) (“To properly

preserve review of a jury's verdict based on the sufficiency of

the evidence, a party must move for judgment as a matter of law

after the close of all the evidence.”), cert. denied, 70 U.S.L.W.

3092 (U.S. Oct. 9, 2001) (No. 01-196). Moreover, because he did

not file a second notice of appeal after the denial of his new

trial motion, he has appealed only the judgment in favor of the

defendants, not the district court’s denial of his new trial

motion. See Fed. R. Civ. P. 4(a)(4)(B)(ii). Driver has

therefore not presented an issue for this court to review.

This appeal is without arguable merit and is thus frivolous.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because it

is frivolous it is DISMISSED. 5th Cir. R. 42.2.

APPEAL DISMISSED.