Benny Falcon v. Tyler Holly

Case: 13-10293 Document: 00512741937 Page: 1 Date Filed: 08/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 21, 2014
No. 13-10293
Summary Calendar
Lyle W. Cayce
Clerk
BENNY FALCON,
Plaintiff-Appellant
v.
TYLER HOLLY, Correctional Officer III,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:09-CV-66
Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
Benny Falcon, Texas prisoner # 664986, appeals the jury verdict in his
42 U.S.C. § 1983 action, in which the jury found that Tyler Holly did not use
excessive force against Falcon. Falcon argues that Holly, acting under the
authority of the State, intentionally failed to follow appropriate use of force
procedures, that Holly’s actions caused Falcon’s injuries, and that Falcon’s
damages could have been avoided if Holly had followed the procedures of the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-10293 Document: 00512741937 Page: 2 Date Filed: 08/21/2014
No. 13-10293
Texas Department of Criminal Justice. Falcon further asserts that the district
court erred in granting a summary judgment in favor of Holly.
The district court previously granted a summary judgment in favor of
Holly. This court vacated the judgment and remanded the case for further
proceedings. On remand, the district court held a jury trial, and the jury found
that Holly did not use excessive force maliciously or sadistically to cause harm.
Falcon does not challenge the jury’s verdict or identify any errors by the district
court during the trial proceedings on remand. Although pro se briefs are
afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even
pro se litigants must brief arguments in order to preserve them, Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because Falcon has failed to
identify any error in the trial proceedings on remand, any issues concerning
the trial proceedings are deemed abandoned. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Further, Falcon has failed to provide a transcript as required by Rule 10
of the Federal Rules of Appellate Procedure. See FED. R. APP. P. 10(b); see
Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992), superseded by statute on other
grounds as stated in Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997). We have the
discretion to dismiss an appeal if the appellant fails to provide a transcript.
See RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1289 (5th Cir. 1995) (quoting
Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990) (dismissing appeal
based on sufficiency of the evidence because appellant failed to include a
transcript)). It is not possible for this court to review the jury’s verdict without
the trial transcript. Because Falcon has failed to produce the transcript of the
trial, we decline to review the jury’s verdict. See Richardson, 902 F.2d at 415-
16. The district court’s judgment is AFFIRMED. Falcon’s motion for
appointment of counsel is DENIED.
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