Banks v. McGee ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1673



                                    THOMAS BANKS,



                                Plaintiff, Appellant,



                                          v.



                                 BARRY MCGEE, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                          Boudin and Lynch, Circuit Judges.
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            Thomas O. Banks on brief pro se.
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            Marc DeSisto, Kathleen M. Powers and  DeSisto Law Offices on brief
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        for appellees.





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                                    November 8, 1996

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                 Per  Curiam.   Upon  careful  review of  the  briefs and
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            limited  record   in  this   appeal,  we  conclude   that  no



            substantial question  is presented and that  the judgment for



            defendants should be affirmed.  We add only these comments.



                 1.   The district court did  not abuse its discretion in



            concluding that evidence of  an unrelated disciplinary action



            should  be excluded under Fed.  R. Evid. 404(b), because that



            evidence  was highly  prejudicial  and would  only show  "bad



            character from  which to  infer a  propensity  to commit  the



            present  act."  See Tigges v. Cataldo, 611 F.2d 936, 938 (1st
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            Cir.  1979).  Plaintiff's reliance on Fed. R. Evid. 608(b) is



            similarly unavailing.   See id. at 939. 
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                 2.   Plaintiff never brought  his claim regarding  newly



            discovered evidence  to the attention of  the district court.



            Therefore, we will not consider that claim for the first time



            in this appeal.  See Clauson v. Smith, 823 F.2d 660, 666 (1st
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            Cir. 1987).



                 3.   Plaintiff waived  his arguments regarding  the jury



            instructions by failing to object below.  See Fed. R. Civ. P.
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            51.  Therefore, we do not consider his contentions concerning



            the lack  of instructions on  state law negligence  claims or



            the content of the instruction on the deliberate indifference



            standard.  Further, upon review  for plain error, we conclude



            that  the  record  here  exhibits no  error  that  "seriously



            affected the  fairness, integrity,  or  public reputation  of







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            judicial proceedings."   See  Toscano v. Chandris,  S.A., 934
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            F.2d 383, 384-85 (1st Cir. 1991).



                 4.   We  reject  plaintiff's  contention  regarding  the



            jury's request  to read  trial  transcripts.   The trial  was



            relatively  brief, and  so the  district court's  decision to



            withhold the transcripts was well within its broad discretion



            in such matters.   See United States v.  Hyson, 721 F.2d 856,
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            865 (1st Cir. 1983).



                 5.   Our usual plenary review of the directed verdict is



            stymied  here because  plaintiff  has provided  an incomplete



            trial  transcript.  See  Fed. R. App.  P. 10(b)(1) (appellant
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            has the duty to  "order from the court reporter  a transcript



            of such  parts of the proceedings not already on file as [he]



            deems necessary"); Valedon Martinez v. Hospital Presbiteriano
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            de  la Comunidad, Inc., 806  F.2d 1128, 1135  (1st Cir. 1986)
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            (we will not  review a claim of error if appellant has failed



            to include a transcript of  the pertinent proceedings in  the



            record on appeal).   In any case,  our review of the  limited



            record available does  not lead  us to conclude  that a  jury



            question  remained as to the  city's liability.   See id. (we
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            nevertheless  may consider  appellant's claim  to the  extent



            possible).



                 Affirmed.  See 1st Cir. Loc. R. 27.1.
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