UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40106
Summary Calendar
KENNETH GREGORY THOMPSON, JR.,
Plaintiff-Appellant,
versus
ZEHRA PEERBOY, Unit Psychiatrist, ET AL.,
Defendants,
ZEHRA PEERBOY, Unit Psychiatrist; HENRY
ORLOFF, Unit Psychologist; UNIDENTIFIED
PARTIES, Correctional Officers,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:95-CV-212)
October 27, 1997
Before POLITZ, Chief Judge, JOLLY and STEWART, Circuit Judges.
POLITZ, Chief Judge:*
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Kenneth Gregory Thompson, Jr., pro se, appeals an adverse jury verdict
rejecting his 42 U.S.C. § 1983 civil rights claims against Zehra Peerboy and Henry
Orloff. For the reasons assigned, we affirm.
BACKGROUND
Thompson, a Texas state prisoner, filed a civil rights complaint against unit
psychiatrist Peerboy, unit physician Verlyn Michael Miller, unit psychologists
Orloff, Jean P. McCown, and Joe Simental, and unknown correctional officials.
Thompson alleged that Miller discontinued medications, removed work restrictions,
and had him transferred to another unit because of his race and legal activities.
Thompson claimed that after he was transferred McCown prepared a false
psychological report because of his race, and Peerboy, Orloff, Simental and
unknown correctional officers were deliberately indifferent to his medical needs
and retaliated against him for his legal activities by discontinuing his single-cell
housing status.
Following a Spears1 hearing, the magistrate judge, trying the matter by
consent, dismissed Thompson’s claims against McCown and Simental as frivolous
and transferred the claims against Miller to the district in which the claims arose.
After a trial on the merits, the jury returned a verdict in favor of the remaining
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
defendants, Peerboy and Orloff. The magistrate judge entered judgment in
accordance with the jury verdict and Thompson timely appealed.
ANALYSIS
Thompson claims that the magistrate judge erred in refusing to subpoena all
of his requested witnesses. The magistrate judge subpoenaed seven witnesses, but
denied the request for 13 additional witnesses, finding that their testimony would
be irrelevant, cumulative, or inadmissible hearsay. Such a determination is left to
the discretion of the trial court and will not be disturbed absent a substantial
showing of need for the testimony of the requested witnesses.2 Thompson asserts
that the excluded witnesses would have testified to his mental state, the health care
he received, the problems he experienced while double-celled, the handling of his
grievances, and that he was retaliated against because of his race. The record
reflects, however, that witnesses testified at trial about Thompson’s mental state,
health care, grievances, and problems while double-celled. The only allegations of
retaliation based on race were made against McCown and Miller and these claims
were dismissed and transferred, respectively. Because Thompson has failed to
demonstrate that any relevant testimony was excluded or that the expected
testimony of the particular witnesses would be anything more than cumulative or
2
Cupit v. Jones, 835 F.2d 82 (5th Cir. 1987).
3
for impeachment, we must conclude that the magistrate judge did not abuse her
discretion in denying Thompson’s requests to subpoena witnesses.
Thompson also contends that the trial court erred by failing to instruct and
submit interrogatories to the jury on racial discrimination. Thompson further
asserts that the instruction and submission of interrogatories to the jury on qualified
immunity were erroneous. Thompson concedes, however, that he failed to object
to the jury instructions and interrogatories during the trial. Thus we must review
Thompson’s contentions on appeal under the plain error standard.3 In reviewing
for plain error, we are to determine whether the charge and interrogatories were
“likely responsible for an incorrect verdict which in itself creates a substantial
injustice or resulted in a plain error so fundamental as to result in a miscarriage of
justice.”4
In his complaint, Thompson alleged retaliation based on race as his third
cause of action. The allegations cited to support this cause of action consisted of
incidents involving Miller and McCown. As noted, following a Spears5 hearing the
magistrate judge dismissed the claims against McCown as frivolous and transferred
3
Goodman v. Lee, 78 F.3d 1007 (5th Cir. 1996).
4
Id. at 1011.
5
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
4
the claims against Miller. As to the remaining defendants, Peerboy and Orloff, the
magistrate judge defined the claims as deliberate indifference to Thompson’s
medical needs and retaliation for legal activities, not race, and the evidence was
limited to such. Our review of the record leads us inexorably to the conclusion that
the refusal to submit the issue of racial discrimination to the jury was not
erroneous.
Thompson’s claim that the trial court erred in submitting the issue of
qualified immunity to the jury is equally without merit. The jury did not render a
liability verdict for Thompson and, thus, the qualified immunity interrogatory
remained unanswered. Therefore, Thompson necessarily has failed to demonstrate
how the jury instruction and interrogatory on qualified immunity affected the
outcome of the case.
Thompson also contends that the trial court erred by excluding evidence that
he was placed in single-cell housing after filing suit as being inadmissible as a
subsequent remedial measure. The trial court is given wide discretion in making
evidentiary rulings. We review same for manifest error.6 Evidence of subsequent
remedial measures is inadmissible as evidence of a party’s negligence, but is
6
Guillory v. Domtar Indus. Inc., 95 F.3d 1320 (5th Cir. 1996).
5
permitted for impeachment purposes.7 Although Thompson maintains on appeal
that evidence about his placement in single-cell housing after filing suit constitutes
impeachment evidence, the record is clear that he offered the evidence as proof that
he should have been placed in single-cell housing before filing suit. The trial court
did not err in excluding that evidence.
Finally, Thompson asserts that “the jury’s verdict was against the
preponderance of the evidence.” This essentially is a challenge to the sufficiency
of the evidence. Because Thompson failed to move for judgment as a matter of law
or new trial in the district court, our review is limited to “whether there was any
evidence to support the jury’s verdict, irrespective of its sufficiency, or whether
plain error was committed which, if not noticed, would result in a ‘manifest
miscarriage of justice.’”8 Considering the record in light of this demanding
standard, and giving due deference to the jury’s function in weighing conflicting
evidence and determining the witnesses’ credibility,9 the evidence submitted as to
Thompson’s claims falls far short of requiring that the verdict be set aside on an
insufficiency of the evidence basis.
7
Fed. R. Evid. 407.
8
Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir. 1978).
9
Martin v. Thomas, 973 F.2d 449 (5th Cir. 1992).
6
The judgment appealed is AFFIRMED.
7