Tomblin v. Trevino , 86 F. App'x 716 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50571
Summary Calendar
ANTHONY TOMBLIN,
also known as Lucky Tomblin,
Plaintiff-Appellant,
versus
JESSE TREVINO, Officer, ET AL.,
Defendants,
CITY OF SEGUIN, Texas,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-1160
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony “Lucky” Tomblin appeals from the district court’s
denial of his FED. R. CIV. P. 50 motion for judgment as a matter of
law and FED. R. CIV. P. 59 motion for new trial following the jury’s
verdict in favor of the City of Seguin, Texas, in his 42 U.S.C. §
1983 civil rights suit. Among other things, Tomblin argues that
*
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that this opinion should not be published and is not precedent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. 03-50571
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the City’s pervasive practice of obtaining social security numbers
(SSN) during routine traffic stops established the existence of a
well-established policy and custom, thereby entitling Tomblin to
judgment as a matter of law on his 42 U.S.C. § 1983 claim. For
purposes of his motion for new trial, Tomblin contends that the
jury instructions were flawed because they were submitted on the
issue of municipal liability only without the benefit of the
district court’s threshold determination whether a constitutional
violation had occurred. Tomblin also argues that the jury’s
verdict was against the weight of the evidence, and that the
district court erred in failing to recite findings of fact or
conclusions of law with respect to Tomblin’s state-law claim, as
required by FED. R. CIV. P. 52.
We have reviewed the record and the briefs submitted by the
parties and hold that reasonable persons could have reached
different conclusions regarding the existence of an official City
policy or custom mandating the disclosure of a person’s SSN.
Accordingly, the jury’s determination of this issue will not be
disturbed. See Granberry v. O’Barr, 866 F.2d 112, 113 (5th Cir.
1988).
Tomblin’s challenge to the jury instructions, raised for the
first time on appeal, does not survive plain error review. See
Hartsell v. Dr. Pepper Bottling Co. of Tex., 207 F.3d 269, 272 (5th
Cir. 2000); Tex. Beef Group v. Winfrey, 201 F.3d 680, 689 (5th Cir.
2000). Similarly, we reject as lacking merit Tomblin’s arguments
No. 03-50571
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challenging the evidence supporting the jury’s verdict, and the
district court’s alleged failure to recite findings of fact and
conclusions of law. See Sherman v. United States Dep’t of the
Army, 244 F.3d 357, 365 (5th Cir. 2001); FED R. CIV. P. 52(a).
AFFIRMED.