Metcalf v. Monroe Cty Shrf ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60874
Conference Calendar
KENT METCALF,
Plaintiff-Appellant,
versus
MONROE COUNTY SHERIFF DEPARTMENT;
PHILLIP GEORGE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:98-CV-68-B-D
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June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Kent Metcalf (Metcalf) appeals the November 19, 1999, order
by the district court, denying his motions to alter judgment
pursuant to Fed. R. Civ. P. 59(e) and for relief from judgment
pursuant to Fed. R. Civ. P. 60. Because Metcalf's Rule 59(e)
motion was timely filed, the denial of the motion brings up the
underlying judgment for review. See Foman v. Davis, 371 U.S.
178, 181-82 (1962).
*
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that this opinion should not be published and is not precedent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. 99-60874
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Metcalf argues that the district court applied the wrong
standard of law in deciding his underlying claim of excessive
force pursuant to 42 U.S.C. § 1983. Metcalf did not raise this
issue in his objections to the magistrate judge's Report and
Recommendations. Our review is thus limited to plain error.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1420 (5th
Cir. 1996)(en banc).
Because Metcalf fails to provide any argument regarding why
the standard of law applied by the district court was improper,
because he does not state what standard of law the district court
should have applied, and because he does not show how he would
have prevailed had the court used the correct standard, this
argument is waived. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Although this court
applies less stringent standards to parties proceeding pro se
than to litigants, pro se parties must still brief the issues and
reasonably comply with the requirements of Fed. R. Civ. P. 28.
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Metcalf also asserts that a prima facie case of excessive
force was established because he produced pictures of the
injuries he suffered in connection with his July 1, 1995, arrest
and that "in view of the record it clear [sic] shows that he met
the preponderance of the evidence requirement by producing
original photographs of his facial and body injuries, the actual
medical records, and witnesses testimony which clearly
corroborated the fact that he had been badly beatened [sic] by
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the defendants . . . ." Both of these arguments miss the point
of appellate review. The question on appeal is not whether
Metcalf proved his case by a preponderance of the evidence, but
whether the district court erred in holding that he did not.
To succeed in a § 1983 action, a plaintiff must establish a
violation of the laws or constitution of the United States and
that this deprivation of rights was caused by a person acting
under color of state law. Leffall v. Dallas Indep. Sch. Dist.,
28 F.3d 521, 525 (5th Cir. 1994). The district court’s findings
of fact are reviewed for clear error, and its conclusions of law
are reviewed de novo. Baldwin v. Stalder, 137 F.3d 836, 839 (5th
Cir. 1998). Even if Metcalf proved a prima facie case, he does
not show on appeal that the district court clearly erred in
accepting the magistrate judge's recommendation that Metcalf
failed to prove his case. His appellate argument is no more than
a repeat of his factual allegations in the district court.
The district court's judgment in favor of defendants is
AFFIRMED.