Elorriaga v. Tooele County , 85 F. App'x 150 ( 2004 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 6 2004
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    WENDY ELORRIAGA,
    Plaintiff - Appellant,
    v.                                                    No. 03-4016
    (Utah)
    TOOELE COUNTY, DEPUTY                          (D.C. No. 2:99CV-00874K)
    SPENCER TURPIN,
    Defendants - Appellees,
    OFFICER STEVE BARRETT,
    OFFICER DAVE AAGARD AND
    JOHN DOES 1 THROUGH X,
    Defendants.
    ORDER AND JUDGMENT *
    Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Wendy Elorriaga filed a 
    42 U.S.C. § 1983
     complaint in the district court
    against Tooele County, Tooele County Sheriff’s Deputy Spencer Turpin, and
    Grantsville Police Department officers Steve Barrett and Dave Aagard, alleging
    excessive force, cruel and unusual punishment, and illegal search and seizure in
    violation of the Fourth, Eighth and Fourteenth Amendments. 1 Prior to trial, she
    settled her claims against Barrett and Aagard. Her claims against Tooele County
    and Turpin proceeded to a jury trial. At the close of Elorriaga’s case, Tooele
    County and Turpin moved for a directed verdict, which the court granted as to
    Tooele County only. The jury found in favor of Turpin. Elorriaga appeals pro se 2
    the jury’s verdict and the district court’s judgment in favor of Tooele County and
    Turpin. We construe her argument as an insufficiency of the evidence claim.
    Exercising jurisdiction pursuant to 
    28 U.S.C. § 1291
    , we affirm.
    When reviewing a jury’s verdict on appeal, our review is “limited to
    determining whether the record--viewed in the light most favorable to the
    prevailing party-- contains substantial evidence to support the jury's decision.”
    1
    Elorriaga also alleged various state law claims, which were dismissed per
    stipulation.
    2
    We construe pro se pleadings liberally. Ledbetter v. City of Topeka, 
    318 F.3d 1183
    , 1187 (10th Cir. 2003).
    -2-
    Thunder Basin Coal Co. v. Southwestern Public Serv. Co., 
    104 F.3d 1205
    , 1212
    (10th Cir. 1997) (quotation and citation omitted). In conducting our review, we
    will not re-weigh the evidence, appraise credibility, or resolve conflicts in the
    evidence. 
    Id.
     (citation omitted).
    Because Elorriaga fails to cite to the record or any legal authority and has
    not provided us with a trial transcript, we have no way to meaningfully review the
    jury’s verdict. See Fed. R. App. P. 10(b)(1) (appellant has duty to order transcript
    of relevant proceedings), and 28(a)(7), (9) (appellant’s brief must contain a
    statement of facts and an argument, with citations to authorities and the record).
    The absence of the required transcript leaves us no alternative but to affirm the
    district court. Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 
    175 F.3d 1221
    , 1238 (10th Cir. 1999). See also McGinnis v. Gustafson, 
    978 F.2d 1199
    ,
    1201 (10th Cir. 1992) (“[F]ailure to file the required transcript involves more than
    noncompliance with some useful but nonessential procedural admonition of
    primarily administrative focus. It raises an effective barrier to informed,
    substantive appellate review.”).
    Nevertheless, Elorriaga, represented by counsel, was provided the
    opportunity to present her case to a jury. Accordingly, absent evidence to the
    contrary, we assume the jury properly exercised its fact-finding authority in
    accordance with the legal instructions provided by the court. Elorriaga’s motion
    -3-
    to proceed in forma pauperis on appeal is GRANTED and the judgment in favor
    of Turpin and Tooele County is AFFIRMED.
    Entered by the Court:
    TERRENCE L. O’BRIEN
    United States Circuit Judge
    -4-