Case: 12-10849      Document: 00512539549         Page: 1    Date Filed: 02/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 12-10849                        February 20, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
JAY ANTHONY NOTTINGHAM,

                                                 Plaintiff-Appellant

v.

JOEL FINSTERWALD, Sheriff of Wheeler County; JULIAN TORREZ, Deputy
Sheriff of Wheeler County; CATHY BURRELL, Independent Executrix of
Estate of Jon C. Burrell, also known as Jon Burrell; STEVE STOKES, also
known as Stokes,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:09-CV-250


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jay Anthony Nottingham, Texas prisoner # 1490726, appeals the jury
verdict in favor of Defendants in a 42 U.S.C. § 1983 suit alleging excessive use
of force, the denial of his motions for appointment of counsel, and the denial of
his postjudgment motions to correct and provide expert review of the trial


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-10849    Document: 00512539549       Page: 2   Date Filed: 02/20/2014


                                   No. 12-10849

record. He also moves this court to appoint an expert to review the trial record
and to strike Defendants’ brief.
      First, Nottingham contends that the district court erred in denying his
motions to correct and provide expert review of the trial record because the
trial transcript contained material omissions and errors in the transcription of
the testimony of several witnesses. However, he has failed to overcome the
statutory presumption of accuracy of the trial transcript.         See 28 U.S.C.
§ 753(b); Veillon v. Exp. Servs., Inc., 

, 1201 (5th Cir. 1989). For
the same reason, he has failed to show that we should appoint an expert to
review the trial record, and thus his motion for expert review is DENIED.
      Next, Nottingham asserts that appointed counsel was necessary to
effectively present his case, but he has not shown any abuse of discretion in
the denial of appointment of counsel. See Cupit v. Jones, 

, 86 (5th
Cir. 1987).   The only issue remaining in the case, whether and which
Defendants struck Nottingham and whether he received these injuries before
or after he was handcuffed, was not complex; Nottingham had personal
knowledge of the operative facts and key witnesses; Nottingham repeatedly
demonstrated that he was able to effectively present his case in the instant
proceeding as well as other pending cases; and Nottingham’s disabilities were
accommodated during trial.
      Nottingham also contends that a new trial is warranted because the
jury’s verdict was against the great weight of evidence. There is no indication
in the record that Nottingham moved before or after the verdict for a judgment
as a matter of law pursuant to Federal Rule of Civil Procedure 50. Accordingly,
the sufficiency of evidence supporting the verdict is reviewed for plain error to
determine “whether there was any evidence to support the jury verdict.”
Flowers v. S. Reg’l Physician Servs. Inc., 

, 238 (5th Cir. 2001)



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    Case: 12-10849     Document: 00512539549      Page: 3   Date Filed: 02/20/2014


                                  No. 12-10849

(internal quotation marks and citation omitted). Nottingham claimed that
Defendants used excessive force against him after he was handcuffed.
Defendants presented evidence that Nottingham could have been injured
before he was handcuffed, no one beat Nottingham after he was handcuffed,
and Defendants were not present when Nottingham was handcuffed.
Nottingham offered some contrary testimony, but his credibility was
undermined by defense witnesses and his criminal history. There was more
than enough evidence to support the verdict. See 

contends that the district court made inflammatory
and prejudicial remarks during trial when he was attempting to admit an
ambulance report, but he fails to identify the location of the remarks in the
trial transcript. Instead, he asserts that this remark was not transcribed.
Nottingham’s assertion about inaccuracies in the trial transcript will not be
considered since he has failed to prevail on his claims about the trial transcript.
      Nottingham also complains that his credibility was harmed by the
presence of uniformed and armed prison guards in proximity to him during
trial. Assuming, arguendo, that this claim of error was preserved, any error is
harmless since Nottingham’s incarceration was apparent to the jury.
      We will not consider Nottingham’s claim about witness tampering
because it is raised for the first time in his reply brief. See United States v.
Rodriguez, 

, 360 (5th Cir. 2010).
      Last, Defendants have complied with the applicable rules regarding
service of a filing party’s brief on an unrepresented party. See FED. R. APP. P.
31(b); 5TH CIR. R. 31.1. Nottingham’s motion to strike their brief is DENIED.
      JUDGMENT AFFIRMED; MOTIONS DENIED.




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