Bakre v. Ivins , 98 F. App'x 310 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS May 6, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41308
Summary Calendar
ASH BABATUNDE BAKRE,
Plaintiff-Appellant,
versus
CHRISTOPHER IVINS, Individually and in his
official capacity as Correctional Officer 3;
BLAKE LAMB, Individually and in his official
capacity as Sergeant,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(9:99-CV-140)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges
PER CURIAM:*
Ash Babatunde Bakre, Texas state prisoner # 784509, appeals,
pro se, from the judgment adopting the jury’s verdict and
dismissing with prejudice his 42 U.S.C. § 1983 compliant for
excessive force by correctional officers.
Bakre contends that the district court erred by failing to
require Defendants to produce Bakre’s x-rays for trial and by not
allowing the jury to view all of Bakre’s exhibits. The jurors
*
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this opinion should not be published and is not precedent except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.
reviewed the radiologist’s reports interpreting the x-rays and
heard testimony from a doctor interpreting the reports. Further,
Bakre is mistaken in his assertion that the jurors were not
permitted to see his exhibits; all of the medical records
introduced at trial were sent to the jury room during
deliberations. The evidentiary rulings were not an abuse of
discretion. Polanco v. City of Austin, Tex., 78 F.3d 968, 982 (5th
Cir. 1996).
Bakre further contends that the district court denied him due
process by allowing Defendants to question him about his underlying
1997 criminal conviction for murder. The district court did not
abuse its discretion in admitting evidence of Bakre’s felony
conviction; it was proper impeachment evidence. See FED. R. EVID.
609(a); Polanco, 78 F.3d at 982.
Bakre next asserts that the district court’s failure to
subpoena certain medical witnesses affected the outcome of the jury
verdict; however, the written reports of the uncalled witnesses
were read into the record and were also interpreted by a medical
doctor. The district court did not abuse its discretion in
permitting the trial to proceed without these witnesses. Gibbs v.
King, 779 F.2d 1040, 1047 (5th Cir. 1986).
Finally, Bakre contends that the judgment was contrary to the
law and evidence. Bakre did not move for judgment as a matter of
law at the conclusion of the evidence or after the jury reached its
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verdict. Accordingly, “if any evidence exists that supports the
verdict, it will be upheld”. Flowers v. Southern Regional
Physician Services, Inc., 247 F.3d 229, 238 (5th Cir. 2001).
Defendants testified that Bakre refused to obey an order, kicked
and screamed when Defendants tried to handcuff him, and had to be
brought to the floor in order to be restrained. Therefore, the
requisite “any evidence” supports the jury’s determination that the
Officers did not use excessive force and that an objectively
reasonable Officer would have found the conduct acceptable under
the circumstances. See Spann v. Rainey, 987 F.2d 1110, 1115 & n.7
(5th Cir. 1993).
AFFIRMED
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