Holmes v. Stalder

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30226
Summary Calendar
RICHARD HOLMES,
Plaintiff-Appellant-Cross-Appellee,
versus
RICHARD STALDER, ET AL,
Defendants,
JOHN STEPHENSON, Individually & in his official capacity as
Lieutenant Wade Correctional Center,
Defendant-Appellee-Cross-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 96-CV-2528
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April 27, 2001
Before JOLLY, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:*
Richard Holmes appeals from a judgment following a jury trial
in this 42 U.S.C. § 1983 civil rights action. Holmes argues that
in the light of the jury’s finding that John Stephenson used
excessive force, the award of nominal damages in the amount of one
dollar was unreasonable. “[T]o support an Eighth Amendment
excessive force claim a prisoner must have suffered from the

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excessive force a more than de minimis physical injury, but there
is no categorical requirement that the physical injury be
significant, serious, or more than minor.” Gomez v. Chandler, 163
F.3d 921, 924 (5th Cir. 1999).
A review of the evidence in the light most favorable to the
jury’s verdict indicates that the jury obviously chose to discredit
Holmes’ testimony regarding his injuries and elected to credit the
testimony of the attending nurse to the effect that no muscle
spasms or signs of bruising, swelling, or scarring were present.
The medical records also reflected that Holmes did not seek further
medical treatment for the injuries he allegedly sustained as a
result of the use of force, and when he did return to the
infirmary, it was 35 days after the incident and it was concerning
a problem with his eye. This court will not disturbed the jury’s
credibility determination. Hiller v. Mfrs. Prod. Research Group of
North Am., Inc., 59 F.3d 1514, 1522 (5th Cir. 1995).
To the extent that Holmes avers that the award of nominal
damages is inconsistent with the jury’s finding that excessive
force was used, a plaintiff is entitled to an award of nominal
damages for the violation of his civil rights, even when no injury
was shown, and such a verdict is not inconsistent and does not
entitle the plaintiff to an award of actual damages. See Archie v.
Christian, 812 F.2d 250, 252 (5th Cir. 1987).
Stephenson, in his cross-appeal, avers that the district court
erred in denying his renewed Fed. R. Civ. P. 50 motion for judgment
as a matter of law. Stephenson’s motion for judgment as a matter

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of law was untimely because it was filed eleven days after the
entry of judgment. See Fed. R. Civ. P. 50(b)(a motion for judgment
as a matter of law must be filed no later than 10 days after the
entry of judgment). Accordingly, Stephenson filed “an unauthorized
motion which the district court was without jurisdiction to
entertain. Thus, he has appealed from the denial of a meaningless,
unauthorized motion.” United States v. Early, 27 F.3d 140, 142
(5th Cir. 1994). “Although the district court denied the motion on
the merits, it should have denied the motion for lack of
jurisdiction.” Id. This court affirms on the alternative basis.
Id.
AFFIRMED.

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