     Case: 17-30514       Document: 00514586577         Page: 1     Date Filed: 08/06/2018




                           REVISED August 6, 2018

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

                                                                                 FILED
                                     No. 17-30514                           August 2, 2018
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
DURWIN ABBOTT,

                                                  Plaintiff - Appellant

v.

PERCY BABIN, Captain; TYRONE KILBOURNE, Master Sergeant,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CV-505


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Durwin Abbott, Louisiana prisoner # 316843, challenges the district
court’s failure to grant a new trial, contesting an instruction and the jury-
verdict form for his excessive-force and negligence action against two
correctional officers at Dixon Correctional Institute.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                  No. 17-30514

      Abbott pursued this action under 42 U.S.C. § 1983 and Louisiana state
law, claiming Captain Percy Babin and Master Sergeant Tyrone Kilbourne,
inter alia, used excessive force against him in violation of his Eighth
Amendment rights. More specifically, Abbott alleged Captain Babin ordered a
“shake down” of, and repeatedly punched, Abbott, and Master Sergeant
Kilbourne placed Abbott in a chokehold. The officers’ summary-judgment
motions were denied, and this action proceeded to a jury trial.
      At the close of the evidence, the court held a jury-instruction conference
under Federal Rule of Civil Procedure 51(b)(2). At that conference, Abbott
requested the inclusion of the terms “unnecessary force” and “corporal
punishment” in the definition of “excessive force”; the court granted the request
for its instruction but did not include those terms in the jury-verdict form. The
following morning, Abbott expressed concern over the terms’ not being
included in the jury-verdict form. Nevertheless, after the court gave Abbott
permission to include the terms in closing argument, Abbott stated he was
“okay with just leaving it as excessive force”.
      Adhering to our circuit’s pattern jury instructions, the jury-verdict form
contained separate interrogatories for excessive force, negligence, qualified
immunity, and damages. Question one asked whether Captain Babin and
Master Sergeant Kilbourne used excessive force against Abbott; question two,
whether Abbott “suffered some harm as a result of [d]efendant[s’] . . . use of
force”.   The jury was to answer the questions on qualified immunity and
damages only if it answered “yes” to questions one and two.
      After the jury returned a verdict, the court, sua sponte, determined the
jury erred in failing to answer the questions concerning Abbott’s negligence
claim. At that time, Abbott objected to the verdict form’s not allowing the jury
to answer the question on nominal and punitive damages if the jury answered



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“no” to either question one or two. The court overruled the objection, ruling
the verdict form was correct because, in order to prove an Eighth Amendment
violation and receive any damages, Abbott was required to show some harm as
a result of the excessive force.
      The jury answered “yes” to question one as to Captain Babin but “no” to
question two, finding Captain Babin, but not Master Sergeant Kilbourne, used
excessive force, but Abbott did not suffer any harm. Regarding the negligence
claim, the jury found that Captain Babin and Master Sergeant Kilbourne failed
to exercise reasonable care, but that their actions did not cause Abbott’s
injuries. Following the guidance by the jury-verdict form, the jury did not
reach the issue of damages.
      The court denied Abbott’s new-trial motion. Abbott claims the court
erred in denying that motion because the court: did not include the terms
“unnecessary force” and “corporal punishment” in question one of the jury-
verdict form; and did not allow the jury to award nominal or punitive damages
unless it found Abbott suffered “some harm” as a result of the excessive force.
      This court generally reviews challenges to jury instructions for abuse of
discretion, “affording the trial court substantial latitude in describing the law
to the jurors”, Jimenez v. Wood Cty., 660 F.3d 841, 844–45 (5th Cir. 2011) (en
banc); but unpreserved challenges are reviewed only for plain error, United
States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012); Highlands Ins. Co. v.
Nat’l Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994). Under the plain-
error standard, Abbott must show a forfeited plain error (clear or obvious error,
rather than one subject to reasonable dispute) that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that
showing, we have the discretion to correct such reversible plain error, but




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generally should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id.
      In the ordinary case, Abbot would have waived his objection to the non-
inclusion of the terms “unnecessary force” and “corporal punishment” in the
jury-verdict form by his withdrawing the objection. E.g., United States v.
Musquiz, 45 F.3d 927, 931–32 (5th Cir. 1995). But, in ruling on Abbott’s motion
for a new trial, the district court instead reviewed the claimed error under the
plain-error standard. Assuming Abbott did not waive his objection, his claim
fails under that standard. E.g., Puckett, 556 U.S. at 135.
      Along that line, any error was not clear or obvious, because, inter alia,
question one of the verdict form was essentially identical to this circuit’s
pattern jury instruction, which does not include the terms “unnecessary force”
and “corporal punishment”.     Fifth Circuit Pattern Jury Instruction (Civil)
§ 10.7A (2014). Further, in its instructions, the court had included “corporal
punishment” and “unnecessary force” in defining “excessive force”.
      For his second claimed error, Abbott did not timely object to the verdict
form’s not permitting the jury to reach the damages issue unless it found both
excessive force and “some harm” as a result of such force. An objection to a
jury instruction is timely if made:     when the court gives each party an
opportunity to object before closing arguments; or after such time if “a party
was not informed of an instruction . . . and the party objects promptly after
learning that the instruction . . . will be, or has been given”. Fed. R. Civ. P.
51(c). The court gave Abbott an opportunity to object to question one before
closing arguments, but Abbott objected only after the jury returned its first
verdict. Therefore, review is again only for plain error. E.g., Jimenez, 660 F.3d
at 844–45.




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                                  No. 17-30514

      Abbott has not shown the verdict form’s requiring “some harm” before
damages could be awarded constituted the requisite clear or obvious error.
Puckett, 556 U.S. at 135. First, our court has noted the “powerful interests in
orderliness and finality” compelling deferential review of unpreserved jury-
instruction errors: “Few jury charges in cases of complexity will not yield
‘error’ if pored over, long after the fact . . . —if such an enterprise is to be
allowed”. Highlands Ins. Co., 27 F.3d at 1032. Second, as discussed supra, the
court copied questions one and two verbatim from this circuit’s pattern jury
instructions. Fifth Circuit Pattern Jury Instruction (Civil) § 10.7A (2014); e.g.,
United States v. Andaverde-Tinoco, 741 F.3d 509, 516 (5th Cir. 2013) (alleged
jury-charge error was not “clear or obvious” when it was “almost identical to
the charge found in the . . . Pattern Jury Instructions”).
      Finally, it is not clear or obvious that “some harm” is not an element of
an excessive-force claim under the Eighth Amendment. Puckett, 556 U.S. at
135. Although the Supreme Court in Hudson v. McMillian, 503 U.S. 1, 5–9
(1992), and Wilkins v. Gaddy, 559 U.S. 34, 37–39 (2010), criticized courts of
appeals for requiring “some arbitrary quantity of injury” to maintain an
excessive-force claim, the Court did not eliminate the required element of at
least some harm or injury to maintain an Eighth Amendment claim. Wilkins,
559 U.S. at 37–38 (“An inmate who complains of a push or shove that causes
no discernible injury almost certainly fails to state a valid excessive force
claim.” (internal quotation marks and citations omitted)).
      AFFIRMED.




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