Gibbs v. City of Boston

USCA1 Opinion








March 23, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________


No. 93-1821




CARLTON B. GIBBS,

Plaintiff, Appellant,

v.

CITY OF BOSTON,

Defendant, Appellee.


__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge] ___________________

___________________

Before

Breyer, Chief Judge, ___________
Selya and Cyr, Circuit Judges. ______________

___________________

Carlton B. Gibbs on brief pro se. ________________
Albert W. Wallis, Corporation Counsel, and Kevin S. ___________________ _________
McDermott, Assistant Corporation Counsel, on brief for appellee. _________



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Per Curiam. 1. plaintiff asks this court "to __________

substitute its judgment and assess the credibility of the

witnesses." We may not do so. See Acevedo-Diaz v. Aponte, 1 ___ ____________ ______

F.3d 62, 66 (1st Cir. 1993) (court of appeals will uphold

jury verdict "unless the facts and inferences, viewed in the

light most favorable to the verdict 'point so strongly and

overwhelmingly in favor of the movant that a reasonable jury

could not have [returned the verdict]'"). Indeed, unless

plaintiff made a timely motion for judgment as a matter of

law under Fed. R. Civ. P. 50 or for new trial under Fed. R.

Civ. P. 59 (we find neither motion on the docket or among the

papers), we ordinarily will not review the weight of the

evidence. La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, ________________________ ______

691 (1st. Cir. 1991). Nevertheless, we have reviewed those

portions of the record presented to us and we conclude that

the jury's verdict is adequately supported by, for example,

James Younger's account as set forth in his deposition.

2. Plaintiff has forfeited review of his challenges

to the jury instructions because plaintiff has failed to

produce a transcript of the instructions. Valedon Martinez ________________

v. Hospital Presbiteriano, 806 F.2d 1128, 1135 (1st Cir. ______________________

1986) (appellant precluded meaningful review by failing to

have the jury instructions transcribed). Plaintiff's

indigence does not excuse him from producing the transcript.

Richardson v. Henry 902 F.2d 414, 416 (5th Cir.), cert. __________ _____ ____



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denied, 498 U.S. 901 (1990); Thomas v. Computax Corp., 631 ______ ______ _____________

F.2d 139, 141-43 (9th Cir. 1980).

3. We have considered all of plaintiff's arguments

and find no basis to disturb the judgment below.

Affirmed. ________











































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