IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                  No. 98-10713



WOODY GERARD SOLOMON
                                                                     Plaintiff-Appellant,

                                      versus

CHARLES SUGGS, ET AL.,

                                                                            Defendants,

TED VINITA; PAUL H. PRIMICH; HOWARD O’CONNOR;
NFN RASPBERRY, Nurse; NFN GALLE, Nurse;
JAIME QUINTANILLA; CRAIG RAINES;
RONALD DREWRY
                                                                  Defendants-Appellees.

                            **************

WOODY GERARD SOLOMON,
                                                                     Plaintiff-Appellant,

                                      versus

CHARLES SUGGS,

                                                                   Defendant-Appellee.



                   Appeal from the United States District Court
                       for the Northern District of Texas
                   USDC Nos. 1:96-CV-224-C & 1:98-CV-29-C


                               November 17, 2000
Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

           Woody Gerard Solomon (“Solomon”), Texas state prisoner # 618624 appearing pro se,

appeals from a judgment in favor of the defendants following a jury trial on his claims of excessive

use of force and failure to protect. For the following reasons, we affirm.

                                       FACTUAL AND PROCEDURAL HISTORY

           Solomon filed this 42 U.S.C. § 1983 civil rights complaint against Corrections Officers

Charles Suggs (“Suggs”), Ted Vinita (“Vinita”), Paul Primich (“Primich”), and Howard O’Connor

(“O’Connor”); Nurses Raspberry and Galle; Captain Jaime Quintanilla (“Quintanilla”); Assistant

Warden Craig Raines (“Raines”); and Senior Warden Ronald Drewry (“Drewry”). He alleged claims

of excessive use of force, failure to protect, deliberate indifference to serious medical needs, and

various other claims in connection with a May 3, 1996, random search of his cell in which guards

purportedly attacked him and which resulted in injuries to him, including a broken ankle.

           Following a Spears hearing, conducted by the magistrate judge, the district court dismissed

Solomon’s claims against Quintanilla, Nurses Raspberry and Galle, and Drewry and ordered that

Suggs, Vinita, Primich, O’Connor, and Raines should each file a written answer to Solomon’s claims.

Twice thereafter Solomon sought leave to amend his complaint in order to bring claims against

persons that he had mentioned, but did not name as defendants, in his original complaint. The district

court denied these motions.

           Following trial, the jury returned a verdict finding that: (1) Suggs, Vinita, Primich, and



     *
      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.


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O’Connor did not use force maliciously and sadistically for the purpose of causing harm and (2)

Raines did not act with deliberate indifference to Solomon’s safety.

                                            DISCUSSION

        On appeal, Solomon contends that: 1) the district court abused its discretion in denying his

motions for leave to amend his complaint; 2) the district court erred in submitting the issue of

qualified immunity to the jury; 3) the district court abused its discretion in instructing the jury on

excessive use of force and failure to protect; 4) the district court abused its discretion at trial in

excluding certain documentary evidence and in allowing certain testimony; 5) the trial judge’s conduct

deprived him of a fair trial; 6) the jury was biased against him; and 7) the district court erred in

denying his motion for a new trial.

I.      Motions for Leave to Amend Complaint

        Solomon argues that the district court erred in denying his first motion for leave to amend his

complaint filed April 3, 1997. He also contends that the district court abused its discretion in denying

his second motion to amend his complaint filed May 27, 1997. He complains that the court denied

his motions without providing reasons. This Court reviews the denial of a motion to amend a

complaint for abuse of discretion. Aguilar v. Texas Dep’t of Criminal Justice, 

, 1053

(5th Cir. 1998), cert. denied 

(1999).

        Solomon filed his motions for leave to amend his complaint after the Spears hearing. In its

order entered after the hearing, the district court not only dismissed Solomon’s claims against several

named defendants, but also stated why Solomon’s claims against persons merely mentioned in his

complaint were not viable. Thus, because the court had already determined that Solomon’s claims

against the persons he sought to add as defendants were not viable, if it erred in denying his motions


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to amend, such error was harmless.

II.     The District Court’s Submission of Qualified Immunity to the Jury

        Solomon argues that the district court erred in submitting the issue of qualified immunity to

the jury. The issue of qualified immunity ordinarily should be decided by the court before trial.

Snyder v. Trepagnier, 

, 799 (5th Cir. 1998), cert. granted in part, 

(1999),

cert. dismissed, 

(1999). “If t he issue is not decided until trial, the defense is not

waived but goes to the jury, which ‘must det ermine the objective legal reasonableness of [the]

officer’s conduct by construing the facts in dispute.’” 

(quoting Melear v. Spears, 

, 1184 (5th Cir. 1989)). Because there were remaining disputed issues of material fact

relative to immunity, the district court did not err in submitting the issue to the jury. See 

v. City of Benbrook, 

, 410 (5th Cir. 1993)).

        Solomon also makes the conclusory argument that the district court’s instruction on qualified

immunity was erroneous. This Court reviews a district court’s jury instructions for abuse of

discretion. McCoy v. Hernandez, 

, 375 (5th Cir. 2000). “We will not reverse a

judgment based on findings of an erroneous jury instruction unless there is a ‘substantial and

ineradicable doubt whether the jury has been properly guided in its deliberations.’” 

v. Brumley, 

, 276-77 (5th Cir. 1993)). Solomon has wholly failed to demonstrate

an abuse of discretion in the court’s instruction on qualified immunity.

III.    Jury Instructions on Excessive Force and Failure to Protect

        Solomon claims that the district court’s instruction on excessive force was deficient.

“[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel

and Unusual Punishment Clause, the core judicial inquiry is . . . whether force was applied in a


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good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

(1992). The factors that are considered in this “core judicial inquiry”

include:

        1.   the extent of the injury suffered;
        2.   the need for the application of force;
        3.   the relationship between the need and the amount of force used;
        4.   the threat reasonably perceived by the responsible officials; and
        5.   any efforts made to temper the severity of a forceful response.

Baldwin v. Stalder, 

, 838-39 (5th Cir. 1998) (quoting Hudson v. McMillian, 

, 523 (5th Cir. 1992)). These factors are non-exclusive, and cases should be judged by their

individual facts. 

The district court’s instruction accurately set forth the law governing

claims of excessive force in violation of the Eighth Amendment. The court’s instruction included the

core judicial inquiry set forth in Hudson as well as the non-exclusive factors.

        Solomon contends that the district court’s instruction on failure to protect was erroneous

because it did not adequately define deliberate indifference. The test for determining whether a

prisoner has established a constitutional violation consists of both objective and subjective

components. Harper v. Showers, 

, 719-20 (5th Cir. 1999). Under the subjective

standard, the prisoner must “establish that the responsible prison official acted with deliberate

indifference to his condit ions of confinement.” 

“[A] prison official may be held liable

under the Eighth Amendment for denying humane conditions of confinement only if he knows that

inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable

measures to abate it.” Farmer v. Brennan, 

, 847 (1994). The district court instructed

the jury that:

        a prison official may only be held liable under the Eighth Amendment for denying


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        humane conditions of confinement if he knew the inmate faced a substantial risk of
        serious harm and disregarded that risk by failing to take reasonable measures to
        prevent it. A prison official’s duty under the Eighth Amendment is only to ensure
        ‘reasonable safety,’ not to guarantee freedom from any harm. Therefore, even when
        prison officials actually know of a substantial risk to an inmate’s health or safety, they
        may be found free from liability if they responded to the risk, even if the harm
        ultimately was not averted.

The district court’s charge adequately defined deliberate indifference, and Solomon has not

demonstrated that the court abused its discretion.

        Solomon also complains that questions 1 and 2 of the jury instructions confused the jury and

were inadequate. Question 1 asked if any of the named defendants used “force against Plaintiff

maliciously and sadistically for the purpose of causing harm, if any, which proximately caused

Plaintiff’s injuries on May 3, 1996.” Quest ion 2 asked whether Raines acted with “deliberate

indifference to the safety of Plaintiff on May 3, 1996, which proximately caused his injuries.”

Solomon has not shown that the court abused its discretion in submitting these questions to the jury.

IV.     The District Court’s Evidentiary Rulings

        Solomon argues that the district court abused its discretion in refusing to admit into evidence

the entirety of Plaintiff’s Exhibit #71, the Internal Affairs Division report of the May 3, 1996,

incident. He also claims that the court abused its discretion in refusing to allow the jury to view the

use-of-force video during the trial. This Court reviews a district court’s ruling to exclude evidence

for abuse of discretion. McDonald v. Steward, 

, 232 (5th Cir. 1998). “However, we

‘will not disturb an evidentiary ruling, albeit an erroneous one, unless it affects a substantial right of

the complaining party.’” 

Sys. Inc. v. Marina Ventures Int’l Ltd., 

, 1208 (5th Cir. 1993)). The party asserting error has the burden of proving substantial

prejudice. 

not shown substantial prejudice with respect to the exclusion of portions


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of the Internal Affairs Division report. Nor has he demonstrated that the district court abused its

discretion in refusing to allow the jury to view the use-of-force video during trial. The court did not

exclude the video, but admitted it and made it available to the jury during deliberations.

       Solomon also contends that the court abused its discretion in allowing into evidence opinion

and expert testimony of Nurse Sammy Clements (“Clements”) and Raines. However, he has not

established abuse of discretion. Moreover, even if Clements’ and Raines’ testimony could be

characterized as expert testimony, any error in admitting their testimony was harmless given both

witnesses’ qualifications and experience. See United States v. Griffith, 

, 323 (5th Cir.

1997) (subjecting the erroneous admission of expert testimony to harmless error analysis).

V.     The District Court’s Alleged Bias

       Solomon argues t hat the purported bias of the trial judge deprived him of a fair trial. He

complains that the judge’s “objections, interruptions, comments, time limitations, and his overall

decisions to control the pace o f the trial” held him to the standard of an attorney and adversely

affected his presentation of evidence.

       “[A] district judge has broad discretion in managing his docket, including trial procedure and

the conduct of trial.” Sims v. ANR Freight System, Inc., 77F3d 846, 849 (5th Cir. 1996). The judge

must be neutral, but should not be a “passive spectator.” 

in his sound discretion,

“comment on evidence, question witnesses, elicit facts not yet adduced, or clarify those previously

presented. He may maintain the pace of the trial by interrupting or setting time limits on counsel.”

not demonstrated that the trial judge’s conduct went beyo nd the limits of his

discretion.

VI.    The Jury’s Alleged Bias


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        Solomon also complains that the jury was biased against him. He has not shown any such

bias.

VII.    The District Court’s Denial of Solomon’s Motion for a New Trial

        Solomon argues that the district court abused its discretion in denying his motion for a new

trial. He complains that the court did not provide reasons for denying his motion.

        He also contends that the jury verdict was against the weight of the evidence. We find this

claim to be without merit. There was ample evidence to support the jury’s credibility decisions and

ultimate factual determinations. Solomon has not established abuse of discretion in the court’s denial

of his motion for a new trial.

                                          CONCLUSION

        For the foregoing reasons, we affirm the district court’s judgment in favor of the defendants.

AFFIRMED.




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