Gibbs v. City of Boston

• Court: Court of Appeals for the First Circuit
• Decided: March 25, 1994
• Docket: 93-1821
• Status: Published

Opinion

USCA1 Opinion

March 23, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 93-1821

CARLTON B. GIBBS,

                                Plaintiff, Appellant,

                                          v.

                                   CITY OF BOSTON,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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                                 ___________________

               Carlton B. Gibbs on brief pro se.
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               Albert   W.  Wallis,  Corporation   Counsel,  and  Kevin  S.
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          McDermott, Assistant Corporation Counsel, on brief for appellee.
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Per Curiam.    1.   plaintiff asks  this court  "to
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            substitute  its judgment  and assess  the credibility  of the

            witnesses."  We may not do so.  See Acevedo-Diaz v. Aponte, 1
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            F.3d 62, 66  (1st Cir.  1993) (court of  appeals will  uphold

            jury verdict "unless the facts  and inferences, viewed in the

            light most  favorable to the  verdict 'point so  strongly and

            overwhelmingly in favor  of the movant that a reasonable jury

            could not have [returned  the verdict]'").     Indeed, unless

            plaintiff  made a timely motion  for judgment as  a matter of

            law under Fed. R. Civ. P.  50 or for new trial under  Fed. R.

            Civ. P. 59 (we find neither motion on the docket or among the

            papers),  we ordinarily  will not  review the  weight of  the

            evidence.  La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689,
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            691  (1st. Cir. 1991).   Nevertheless, we have reviewed those

            portions of the record  presented to us and we  conclude that

            the jury's  verdict is adequately supported  by, for example,

            James Younger's account as set forth in his deposition.

                      2. Plaintiff has forfeited review of his challenges

            to  the jury  instructions  because plaintiff  has failed  to

            produce a  transcript of the instructions.   Valedon Martinez
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            v.  Hospital Presbiteriano,  806  F.2d 1128,  1135 (1st  Cir.
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            1986) (appellant precluded  meaningful review  by failing  to

            have   the  jury  instructions   transcribed).    Plaintiff's

            indigence does not excuse  him from producing the transcript.

            Richardson  v.  Henry 902  F.2d  414, 416  (5th  Cir.), cert.
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denied, 498 U.S.  901 (1990); Thomas  v. Computax Corp.,  631
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            F.2d 139, 141-43 (9th Cir. 1980).

                      3.  We have considered all of plaintiff's arguments

            and find no basis to disturb the judgment below.

                      Affirmed.
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