United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2007
Charles R. Fulbruge III
No. 05-50564 Clerk
Summary Calendar
ROBERT G. HART,
Plaintiff-Appellant,
versus
KENNETH HAIRSTON; ET AL,
Defendants,
KENNETH HAIRSTON,
Defendant-Appellee.
Appeals from the United States District Court
for the Western District of Texas
(6:01-CV-151)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Robert G. Hart, Texas prisoner # 769108, filed this 42 U.S.C.
§ 1983 action for claimed retaliation by Captain Kenneth Hairston,
maintaining Hairston and other prison officials disciplined him for
complaining to sanitation inspectors about the prison’s kitchen
conditions. A jury returned a verdict in favor of Hairston.
Proceeding pro se, Hart challenges: the trial court’s Rule 406
*
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this opinion should not be published and is not precedent except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.
evidentiary ruling; its qualified-immunity jury instruction; and
the denial of a new-trial motion based on the sufficiency of the
evidence and the prejudicial nature of certain evidence admitted at
trial.
Hart contends the district court erred by excluding evidence
he proffered pursuant to Federal Rule of Evidence 406 (allowing
evidence of personal habit or organizational routine to demonstrate
conduct in conformity therewith). Hart fails to show the court
abused its discretion because he has not established the disputed
evidence fell within Rule 406. See Kona Tech. Corp. v. Southern
Pac. Transp. Co., 225 F.3d 595, 602 (5th Cir. 2000) (evidentiary
rulings reviewed for abuse of discretion); Jones v. Southern Pac.
R.R., 962 F.2d 447, 449 (5th Cir. 1992) (“[e]vidence of habit is
not lightly established”); Reyes v. Missouri Pac. R.R. Co., 589
F.2d 791, 794 (5th Cir.1979) (four prior incidents spanning a three
and one-half year period insufficient to establish evidence of
habit).
Concerning the jury’s finding Hairston entitled to qualified
immunity, Hart asserts: the district court erred by instructing
the jury on qualified immunity; and Hairston was collaterally
estopped from raising such immunity at trial. These contentions
are unavailing because our prior opinion for this action did not
render a final judgment on the qualified-immunity issue. See Hart
v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (holding only that
2
Hairston was not entitled to qualified-immunity summary judgment
based on Hart’s alleged facts); Ashe v. Swenson, 397 U.S. 436, 443
(1970) (“when an issue of ultimate fact has once been determined by
a valid and final judgment, that issue cannot again be litigated
between the same parties”).
Finally, Hart contends the trial court erred by denying his
motion for a new trial because: the evidence does not support the
jury’s verdict; and prejudicial evidence was adduced at trial. The
denial of a new-trial motion based on sufficiency of the evidence
is reviewed for an abuse of discretion; reversible error exists
only when there was an “absolute absence of evidence to support the
jury’s verdict”. Whitehead v. Food Max of Miss., Inc., 163 F.3d
265, 269 (5th Cir. 1998) (emphasis omitted) (internal quotation
marks ommitted). The evidence, including Hairston’s testimony that
the disciplinary action was not retaliatory, was sufficient to
uphold the verdict. See id.
The denial of a new-trial motion based on prejudicial acts is
reviewed to determine whether a manifest injustice would result
from allowing the verdict to stand. Johnson v. Ford Motor Co., 988
F.2d 573, 582 (5th Cir. 1993). Hart fails to show the purportedly
prejudicial evidence resulted in a manifestly unjust verdict. See
id.
AFFIRMED
3