### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40204 Summary Calendar

BASILLO GARCIA, Plaintiff - Appellant

v. JAMES HACKMAN; RICHARD CRITES, Defendants - Appellees

Appeals from the United States District Court for the Southern District of Texas USDC No. 2:10-CV-311

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges. PER CURIAM: * Proceeding pro s e , Basillo Garcia, T e x a s prisoner #598955, appeals the denial o f relief i n his action pursuant to 42 U.S.C. § 1983, following a jury trial tried by c onsent before a magistrate judge and for which Garcia had a ppointed counsel. Garcia presents three issues. First, Garcia challenges the magistrate judge’s dismissal of his claim that J a m e s Hackman, the craft s hop supervisor, and Richard Crites, the former warden, converted Ga r c i a’s c raft-shop property and tools. In that regard, he U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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c ontends the court erred in granting defendants’ motion for judgme n t a s a matter of law, pursuant to Federal Rule of Civil Procedure 50, for this claim. The district c ourt may grant judgment as a matter of law “[i]f a party has been fully heard o n an issue during a jury trial and the court f inds that a reasonable jury w ould not have a legally sufficient evidentiary basis to find for the p arty o n that issue”. F E D
. R. C I V
. P. 50(a). In considering a Rule 50 motion, the c ourt “must review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party”. Brennan’s Inc. v. Dickie Brennan & Co. Inc. , 3 7 6 F.3d 3 56, 362 (5th Cir. 2004). The court s h ould also “give credence to the evidence f avoring the nonmovant as well as that evidence supporting the moving party that i s u ncontradicted and u nimpeached, at least to the extent that that evi dence comes from disinterested witnesses”. Reeves v. Sanderson Plumbing Products, Inc. , 5 30 U.S. 133, 151 (2000) (citation and internal quotation marks omitted). A ruling on a motion f o r j u d g ment as a

m a t t e r of l aw is r eviewed de novo , applying the s ame Rule 50 s tandard as the district court. See Dickie Brennan & Co. Inc. , 376 F.3d at 362. At trial, Garcia, through appointed counsel, conceded he d i d n ot have sufficient evidence to support his conversion claim and told the c ourt Garcia’s evidence dealt purely with the retaliation claim. Because Garcia did not present evidence to support his claim f or conversion, the c ourt did not err in granting the Rule 50 motion and dismissing that claim. For his second i ssue, Garcia c hallenges the sufficiency of evidence before the jury and requests a new trial. “Part[ies] [are] not entitled to pursue a new trial on appeal unless that party makes an appropriate postverdict motion in the district court”. Unitherm Food Systems, Inc. v. Swift-Eckrick, Inc. , 5 46 U.S. 394, 404 ( 2 006). O ur court requires that a party file a n appropriate post-verdict motion because appropriate determinations of Rule 50(b) m otions for judgment

as a matter of law or for new trials “call[] for the judgment in the first i nstance of the judge who saw and heard the witnesses and has the feel of the case which
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no printed appellate transcript can impart”. Id. at 401 (citation and quotation marks omitted). By failing to move for judgmen t a s a m a tter o f law after the verdict u n d e r R u le 50(b), Garcia forfeited his right to appeal on sufficiency gr ounds for a new trial. See F E D
. R. C I V
. P. 50; see, e . g. , St. Paul’ s Evangelical Lutheran Church v. Quick Response Restoration, Inc. , 381 F

. App’x 4 08, 412 (5th Cir. 2 0 1 0 ) (p e r c uriam) (unpublished) (“St. Paul’s did not file a Rule 50(b) motion. Therefore, there is no basis for this c ourt to review its challenge to the sufficiency of the evidence.”) (alterations, citation, and internal quotation marks omitted), Jones v. George Cnty. Sch. D ist. , 233 F. App’x 415 (5th C ir. 2007) (per curiam) (unpublished) ( “J o nes’s failure to present a post-verdict Rule 50(b) motion precludes appellate review of the sufficiency of evidence”). Finally, Garcia contends his trial counsel was ineffective because he failed to object to the dismissal of the conversion claim. This claim lacks m erit because Ga r c i a h as no c onstitutional right to effective assistance of c o unsel in a civil action. See Williams v. Wynne , 533 F.3d 360, 369 (5th Cir. 2008). AFFIRMED.

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