Major v. Batteast ( 1996 )

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.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:93-CV-50
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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that this opinion should not be published and is not precedent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
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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
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Major argues that the magistrate judge abused his discretion
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.