Major v. Batteast

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-60453 Summary Calendar

HENRY MAJOR,

Plaintiff-Appellant,

versus

JAMES BATTEAST, also known as James Basttest; WILLIE LEE HORN; FRED O’BANNER; CALVIN DAVIS; TOMMIE L. WALKER; JOHN DIAL, Dr. John Dial,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:93-CV-50 - - - - - - - - - - July 17, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Henry Major appeals the jury verdict in favor of the

defendants in his 42 U.S.C. § 1983 action and the magistrate

judge’s denial of his motion for a new trial. Major argues that

the jury’s verdict on his excessive force claim is not supported

by the evidence. The evidence in the record indicates that the

defendants applied a reasonable amount of force in a good-faith

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-60453 - 2 -

effort to restore discipline after Major caused a disturbance in

the psychiatric ward of the prison hospital by banging on the

door of his cell and refusing to obey the defendants’ order to

turn around to be handcuffed. See Hudson v. McMillian, 503 U.S.

1, 6 (1992). The record contains competent and substantial

evidence tending fairly to support the jury’s verdict on Major’s

excessive force claim. See Gibraltar Savings v. L.D. Brinkman

Corp, 860 F.2d 1275, 1297 (5th Cir. 1988), cert. denied, 490 U.S.

1091 (1989).

Major contends that the jury’s verdict on his denial of

medical care claim is not supported by the evidence. The record

does not show that Dr. John Dial was deliberately indifferent to

Major’s serious medical needs as Dr. Dial examined Major after

the use-of-force incident and twice after he was transferred back

to the Unit 32 of the prison and found no need for medical

treatment. See Farmer v. Brennan, 114 S. Ct. 1970, 1984 (1994);

Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994)(applying

Farmer to medical claims).

Major argues that the magistrate judge abused his discretion

in not issuing subpoenas for other doctors that Major had listed

as potential witnesses. No abuse of discretion occurred because

the magistrate judge correctly determined that the other doctors’

testimony would have been merely cumulative to the testimony of

Dr. Dial concerning his treatment of Major after the use of force

and concerning Major’s general medical records. See Harvey v.

Andrist, 754 F.2d 569, 572 (5th Cir.), cert. denied, 471 U.S.

1126 (1985). No. 95-60453 - 3 -

in denying his motion for a new trial based on newly discovered

evidence, a tape recording of the testimony of inmate Ray Young

at the disciplinary hearing against Major concerning the use-of-

force incident. Major has not shown that the evidence could not

have been obtained earlier with due diligence. See Johnston v.

Lucas, 786 F.2d 1254, 1257 (5th Cir. 1986). Major has also

failed to show that the evidence probably would have changed the

outcome of the trial. Thus, he has not shown that the evidence

would have changed the jury’s verdict. See Johnston, 786 F.2d at

1257.

AFFIRMED.