Unger v. Wackenhut, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 13, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60345
Summary Calendar
THOMAS F. UNGER,
Plaintiff-Appellee,
versus
WACKENHUT; EMMITT L. SPARKMAN, Warden of Marshall County
Correctional Facility in Holly Springs, in his individual
and official capacities; WILLIE MAE WILLIAMS, Assistant
Warden at Marshall County Correctional Facility, in her
individual and official capacities; REGINALD BLANCHARD,
Sergeant; CHARLES SMITH, Sergeant, in his individual and
official capacities,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:00-CV-127-B
--------------------
Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
The appellee-defendant Reginald Blanchard appeals the
judgment entered upon the jury verdict finding Blanchard had
used excessive force against Thomas F. Unger, Mississippi state
prisoner # 68203, and finding him liable for damages to Ungar in
the amount of $5000. Blanchard also appeals the district court’s

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No. 03-60345
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order denying his postjudgment motions to alter or amend
the judgment, for judgment as a matter of law notwithstanding
the verdict, for stay of enforcement of the judgment and
alternatively, for his motion for a new trial.
Viewing all reasonable inferences from the evidence in favor
of Unger, the nonmoving party, and giving deference to the jury’s
credibility findings, there was a legally sufficient evidentiary
basis for a reasonable jury to find that unreasonable force was
used, without provocation, by Officer Blanchard and that the use
of such force resulted in an injury to Unger. Therefore, the
district court did not err in denying Blanchard’s motion for a
judgment as a matter of law nor did it abuse its discretion in
denying his motion for a new trial. See Reeves v. Sanderson
Plumbing Prods. Inc., 530 U.S. 133, 149 (2000); Streber v.
Hunter, 221 F.3d 701, 736 (5th Cir. 2000); Hudson v. McMillian,
503 U.S. 1, 6-7 (1992).
As discussed below, the district court did not err in
denying Blanchard’s postjudgment motion to amend the judgment
or in refusing to stay the judgment in Unger’s favor.
The prevailing defendants/appellees, Wackenhut, Sparkman,
Williams, and Smith, argue that the district court erred in
denying their motion for attorney’s fees and costs because the
district court dismissed the claims against them as frivolous.

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No. 03-60345
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They contend that the district court erred in failing to amend
the judgment to offset the attorney’s fees and costs due to them
against the judgment rendered in Unger’s favor against Blanchard.
Although the district court dismissed as frivolous the
claims against these defendants prior to the jury’s verdict, its
ruling on the prevailing defendants’ motion implied that it did
not believe that the facts of the case warranted an award to the
prevailing defendants. The record also indicated that the claims
against these defendants were not totally vexatious and without
any foundation. Therefore, the prevailing defendants failed to
demonstrate that the district court abused its discretion in
denying the motion for attorney’s fees. See Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); Hughes v. Rowe,
449 U.S. 5, 14 (1980).
This determination renders moot the motion of Blanchard
and the prevailing defendants seeking to amend the judgment to
offset the attorney’s fees award against the judgment rendered
in Unger’s favor and against Blanchard. Blanchard has failed to
make any argument or to cite any authority to support his claim
that he should not have been taxed the costs of the proceeding.
Thus, this claim is deemed abandoned. Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
The district court’s judgment on the jury verdict in favor
of Unger and against Blanchard and the orders denying the
defendants’ postjudgment motions are AFFIRMED.

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