FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  February 2, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 HENRY A. CHAVEZ,

          Plaintiff - Appellant,
                                                         No. 11-2073
 v.                                           (D.C. No. 1:09-CV-00280-BB-RLP)
                                                           (D.N.M.)
 TOM McWHORTER; P. PACHECO;
 JESS MEYER, individually and in
 their official capacity as officers of the
 Albuquerque Police Department,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.


      Plaintiff-Appellant Henry Chavez appeals the district court’s take-nothing

judgment and dismissal of the action following a jury verdict finding no liability

on the part of Defendants-Appellees (APD Officers Tom McWhorter, Paul

Pacheco, and Jesse Meyer). Mr. Chavez seeks reversal of the district court’s

judgment, and a remand for a new trial as to Defendant Pacheco and a trial as to

damages only as to Defendants McWhorter and Meyer. Aplt. Br. at 16. We have


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
jurisdiction under 28 U.S.C. § 1291 and we affirm.



                                    Background

      At 4:30 pm on March 30, 2007, Albuquerque police received 911 calls that

someone was firing shots in the backyard of property on Atlantic Avenue. One

caller, Plaintiff Henry Chavez, identified his son, whom he says is “bipolar,” as

the shooter. Mr. Chavez was able to disarm his son of a Soviet-model assault

rifle before police arrived. Officer McWhorter, now on the scene, ordered Mr.

Chavez to step away from the rifle and conducted a pat-down. The two men

spoke briefly. Officer McWhorter maintains that Mr. Chavez did not tell him who

was shooting the gun and later claimed it was Yosemite Sam. Tr. 175. Officer

McWhorter testified that he had the right to detain Mr. Chavez while he

investigated the crime and that he perceived Mr. Chavez as deceptive and evasive

in his answers. Tr. 175, 219-220.

      When Mr. Chavez declined to answer further questions and turned away,

Officer McWhorter tried to detain him by grabbing his arm. Officer McWhorter

claims Mr. Chavez kicked him. In any event both men fell and Mr. Chavez cut

his head. Defendant Meyer prepared a criminal complaint against Mr. Chavez for

battery on an officer, but a Bernalillo County grand jury later returned a “no true

bill.” Mr. Chavez spent two weeks in Bernalillo County Metropolitan Detention

Center and was released without charge.

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      Mr. Chavez brought this civil rights action under 42 U.S.C. § 1983

(alleging an unreasonable seizure, excessive force, and malicious prosecution)

and New Mexico common law. After a two-day trial in March 2011, the jury

found for the officers on all claims. Mr. Chavez claims that its verdict was

“returned in error” and that the court erred in denying his Rule 50(b) motion.

Primarily he argues that Officer McWhorter lacked reasonable suspicion to detain

him and use force after he submitted to a pat-down, answered the officer’s

questions, and expressed a wish to consult an attorney. Aplt. Br. at 10; Aplt.

Reply Br. at 4, 9.



                                    Discussion

      The predicate of Mr. Chavez’s request for relief on appeal is the district

court’s denial of his Rule 50(b) motion, which was based on sufficiency of the

evidence. Essentially, Mr. Chavez argues that, even viewing the facts in the light

most favorable to the prosecution, a conscientious jury should have found for

him. But it is well established that as a general matter no Rule 50(b) motion on

grounds of insufficient evidence may be entertained where no Rule 50(a) motion

was made; the former only renews the latter. See, e.g., Exxon Shipping Co. v.

Baker, 

, 486, n.5 (2008); 9 Moore’s Federal Practice § 50.40[1] (3d

ed. 2011); Therrien v. Target Corp., 

, 1250 n.2 (10th Cir. 2010).

Exceptions lie when a Rule 50(b) motion is made unpreceded by a proper Rule

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50(a) motion but where the non-movant fails to object, 

manifest

injustice or plain error are evident. Neither circumstance is suggested here.

Unitherm Food. Sys., Inc., v. Swift-Eckrich, Inc., 

(2006), held that a

party’s “failure to comply with Rule 50(b) forecloses its challenge to the

sufficiency of the evidence” and renders a court “powerless” to grant relief either

in the form of judgment as a matter of law or in a new trial. 

This is

no mere procedural nicety. The jury here was not an advisory board, but a body

of citizens summoned and authorized to give a binding verdict. Under Rule 50,

only when a “reasonable jury” lacks a “legally sufficient evidentiary basis to find

for the party”—when the evidence is so paltry or non-existent that a judge has no

choice under the law but to strip victory from the verdict-winner and enter

judgment for the movant—is its judgment discarded. Accordingly, the district

court’s judgment must be

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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