Sheldon Simmons v. Ryan Garrett

Case: 15-20647 Document: 00514263211 Page: 1 Date Filed: 12/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20647 FILED
Summary Calendar December 6, 2017
Lyle W. Cayce
Clerk
SHELDON D. SIMMONS,

Plaintiff-Appellant

RYAN E. GARRETT; JEREMY B. MCREE,

Defendants-Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-1710

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Sheldon D. Simmons, Texas prisoner # 1588486, filed a 42 U.S.C. § 1983
action against Correctional Officers Ryan E. Garrett and Jeremy B. McRee of
the Texas Department of Criminal Justice, alleging that they used excessive
force against him. He appeals the district court’s judgment dismissing his
§ 1983 action following a jury verdict in favor of Garrett and McRee. Simmons
contends that the jury verdict is not supported by the weight of the evidence.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20647 Document: 00514263211 Page: 2 Date Filed: 12/06/2017

No. 15-20647

After the jury’s verdict, Simmons did not move for a judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(b) or file a motion
for a new trial pursuant to Federal Rule of Civil Procedure 59. Therefore, this
court is without power to review his unpreserved sufficiency claims. See Ortiz
v. Jordan, 562 U.S. 180, 189 (2011) (“Absent [a Rule 50(b)] motion, we have
repeatedly held, an appellate court is ‘powerless’ to review the sufficiency of
the evidence after trial.”); Unitherme Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 401-02 (2006); Downey v. Strain, 510 F.3d 534, 543-44 (5th Cir. 2007).
Simmons further contends that his attorneys were ineffective because
they failed to file a motion for a judgment notwithstanding the verdict and a
motion for a new trial. This claim is frivolous as the right to effective
assistance of counsel does not apply to civil proceedings. See Federal Trade
Comm’n v. Assail, Inc., 410 F.3d 256, 267 (5th Cir. 2005); Sanchez v. United
States Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986). Accordingly, any
deficient conduct by Simmons’s attorneys does not constitute a basis for
invalidating the district court’s judgment. See Sanchez, 785 F.2d at 1237;
Gilbert v. Berndt, 400 F. App’x 842, 844 (5th Cir. 2010).
Finally, Simmons moves for appointment of counsel. There is no general
right to counsel in civil rights actions. McFaul v. Valenzuela, 684 F.3d 564,
581 (5th Cir. 2012). Simmons has not shown that exceptional circumstances
warrant the appointment of counsel. See id. Therefore, his motion for
appointment of counsel is denied.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.