DocketNumber： 95-1673
Filed Date： 11/8/1996
Status： Precedential
Modified Date： 3/3/2016
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1673
THOMAS BANKS,
Plaintiff, Appellant,
v.
BARRY MCGEE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Lynch, Circuit Judges. ______________
____________________
Thomas O. Banks on brief pro se. _______________
Marc DeSisto, Kathleen M. Powers and DeSisto Law Offices on brief ____________ __________________ ___________________
for appellees.
____________________
November 8, 1996
____________________
Per Curiam. Upon careful review of the briefs and ___________
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 ___ ______ _______
Cir. 1979). Plaintiff's reliance on Fed. R. Evid. 608(b) is
similarly unavailing. See id. at 939. ___ ___
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 ___ _______ _____
Cir. 1987).
3. Plaintiff waived his arguments regarding the jury
instructions by failing to object below. See Fed. R. Civ. P. ___
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 ___ _______ _______________
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, ___ _____________ _____
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 ___
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 ________________ ______________________
de la Comunidad, Inc., 806 F.2d 1128, 1135 (1st Cir. 1986) ______________________
(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 ___ ___
nevertheless may consider appellant's claim to the extent
possible).
Affirmed. See 1st Cir. Loc. R. 27.1. ________ ___
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Frank Toscano v. Chandris, S.A. , 934 F.2d 383 ( 1991 )
United States v. Robert Hyson, United States of America v. ... , 721 F.2d 856 ( 1983 )
Marjorie Marie Valedon Martinez v. Hospital Presbiteriano ... , 806 F.2d 1128 ( 1986 )
Charles Clauson v. Robert D. Smith , 823 F.2d 660 ( 1987 )