* 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opinion should not be published and is not precedent except under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. 97-30646

 

ORLANDO BARRIOS FRANCISCO,

Plaintiff-Appellant,

versus

CHARLES C. FOTI, JR., Sheriff; ET AL.,

Defendants,

ALLEN VERRETT, Deputy,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Louisiana

(96-CV-1718-K)

 

August 26, 1998

Before GARWOOD, JONES and WIENER, Circuit Judges.*

GARWOOD, Circuit Judge:

Plaintiff-appellant Orlando Barrios-Francisco (Barrios)

appeals the magistrate judge’s grant of judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50(b) in favor of
1 The case was tried to the magistrate judge (and a jury) by

consent of the parties pursuant to 28 U.S.C. § 636(c).

2 Barrios contests his involvement in the riot, and claims that

he was caught outside his cell when they were locked down and that

he was attempting to remove the cleaning supplies, which had been

left out in the open, so that they would not be used in the riot.

2

defendant-appellee Deputy Sheriff Allen Verrett (Verrett).1

Facts and Proceedings Below

Barrios, an alien detainee in the custody of the Immigration

and Naturalization Service, was incarcerated in a facility under

the control of Orleans Parish Sheriff Charles C. Foti, Jr. on May

20, 1995, when a riot occurred at the prison. Barrios and several

other inmates allegedly armed themselves with mop handles, defaced

prison property, and spread cleaning liquids on the floor. That

same day, as a result of his participation in the riot, Barrios was

issued a “disciplinary ticket” that charged him with violating

prison rules related to rioting and with refusing to obey orders.

The disciplinary ticket was issued by Verrett, who also prepared an

incident report on the riot, but did not further participate in the

disciplinary proceedings against Barrios. On May 22, 1995, a

disciplinary hearing was held; Barrios pleaded guilty and was

sentenced to forty days’ lock down. The events surrounding the

issuance of the disciplinary ticket and the disciplinary hearing

form the basis of this appeal.

Despite what the disciplinary hearing report states, Barrios

denies that he pleaded guilty and denies his guilt.2 He claims,

instead, that he was intimidated into not speaking in his own

defense at the hearing. In the court below, Barrios raised several
3

state and federal claims against Verrett and several other

defendants alleging that: (1) excessive force was used against him,

(2) he was falsely charged with participating in the riot, (3)

Verrett failed to include exculpatory comments in the Incident

Report, (4) he was intimidated into not speaking at the

disciplinary hearing, and (5) prison officials falsely indicated

that he had pleaded guilty. By the time the case was submitted to

the jury, most of the defendants had been dismissed and only four

defendants were left in the case. 

While deliberating, the jury asked the court:

“Your Honor, why does question #6 not reflect that the

plaintiff’s right to due process during the disciplinary

hearing could have been violated by the person conducting

the hearing, i.e. ‘Chief, Warden or division supervisor,’

according to page 3 of Disciplinary Procedures?”

The court responded, in agreement with counsel, that the jury could

only find the individual defendants named in the interrogatories

guilty. Of the four remaining defendants, the jury found only

Verrett liable for violating Barrios’s due process rights at the

disciplinary hearing. In Jury Interrogatory Number 6, the jury

found that Verrett “violated the constitutional right of plaintiff,

Orlando Barrios Francisco, to due process in connection with the

disciplinary proceedings . . . .” Since the jury answered that

Verrett had violated the due process rights of Barrios, they

answered the explanatory questions in Interrogatory Number 7. The

jury expanded upon their answer to Interrogatory 6 and answered

that: (1) plaintiff was advised of the charges against him, and (2)

plaintiff was not forced to plead guilty, but (3) plaintiff was not
3 The prison’s Disciplinary Procedures specifically prohibit a

charging party from sitting on the disciplinary board.

4

allowed to give his version of the events at the hearing. The jury

thus found Verrett guilty of violating Barrios’s due process rights

by preventing Barrios from giving his version of events at the

disciplinary hearing, and they awarded Barrios $3000 in

compensatory damages. The jury also found, inter alia, that

Verrett did not file “false disciplinary charges” against Barrios

(No. 5). The lower court entered judgment on the verdict in favor

of Barrios on April 17, 1997.

A few days after judgment was entered against him, Verrett

filed a Rule 50(b) post-trial motion for Judgment as a Matter of

Law on April 22, 1997. Verrett argued in his motion that there was

no evidence that he participated in, was responsible for, or was

even present at the disciplinary hearing,3 and thus the verdict

could not stand. Barrios opposed the motion, contending that

Verrett was not entitled to a Rule 50(b) Judgement as a Matter of

Law on the grounds urged because he did not make a Rule 50(a)

motion on the same grounds at the close of the evidence. Barrios

conceded that Verrett had made some Rule 50(a) motions, but argued

that these motions urged different grounds for relief than the

ultimate Rule 50(b) motion. The lower court agreed with Barrios

that Verrett’s Rule 50(b) motion urged different grounds for relief

from the earlier Rule 50(a) motions and thus did not comply with

the strict technical requirements of Rule 50(b). The court,

however, noted that the technical requirements of Rule 50(b) are to
5

be liberally construed, and, thus, the court found that although

the Rule 50(a) motions did not explicitly address the same issue as

the Rule 50(b) motion, Verrett had made adequate Rule 50(a) motions

addressing the claims that he was reasonably aware that Barrios was

asserting against him. Based on these liberal readings of Rule 50

and Verrett’s motions, the court ruled that the requirements of

Rule 50(b) were met, and granted the Motion for Judgment as a

Matter of Law on the grounds that there was “no evidence that

Verrett was present during the disciplinary proceedings” and there

was “no evidence . . . that reasonable and fair minded persons in

the exercise of impartial discretion could arrive at the conclusion

that Verrett violated plaintiff’s due process rights by failing to

give him an opportunity to present his version of the events . . .

.” On May 16, 1997, the court vacated the judgment that it had

entered in favor of Barrios on April 17, 1997, and entered judgment

as a matter of law in favor of Verrett. Barrios now appeals the

court’s order of judgment as a matter of law.

Discussion

Under Rule 50, a party may move that the court enter judgment

as a matter of law. Under Rule 50(a), a defendant may move the

court to enter judgment as a matter of law at the close of all the

evidence or at any time before the case is submitted to the jury.

If the motion is not granted and the case is sent to the jury, a

defendant may renew his motion for judgment as a matter of law,

pursuant to Rule 50(b), within ten days after the judgement was

entered on the jury’s verdict. See Fed. R. Civ. P. 50(a) & (b).
6

Because the Rule 50(b) motion is merely a renewal of the prior Rule

50(a) motion, the movant cannot make a Rule 50(b) motion without a

predicate Rule 50(a) motion. 

As a general rule, if a party does not move for a judgment as

a matter of law on a specific issue pursuant to Rule 50(a), then

that party is precluded from moving for a Rule 50(b) motion on that

issue, and an appeals court cannot review the sufficiency of the

evidence on that issue. See McCann v. Texas City Refining, Inc.,

984 F.2d 667 (5th Cir. 1993); see also Hinojosa v. City of Terrell,

834 F.2d 1223, 1227-28 (5th Cir. 1988) (noting that a party may

only base a judgment n.o.v. motion “on a ground that he included in

a prior motion for directed verdict at the close of all the

evidence.”). One exception to this general rule is that if there

is plain error, then the trial court may consider a Rule 50(b)

motion even if no Rule 50(a) motion was made and grant judgment as

a matter of law in order to cure the plain error in the jury’s

verdict. See United States ex rel. Wallace v. Flintco Inc., 143

F.3d 955, 969 (5th Cir. 1998) (holding that because Flintco did not

make a Rule 50(a) motion, “the trial court could grant Flintco’s

motion for judgment as a matter of law only if it found plain error

in the jury verdict.”). Flintco makes clear that a trial court has

the power to grant a Rule 50(b) motion in the absence of a Rule

50(a) motion in the limited plain error circumstance. The plain

error in Flintco was that there was no evidence supporting the

jury’s verdict.

 There appears to be some tension between the Flintco plain
7

error standard and the broad pronouncements of other cases that a

trial court does not have the power to consider a Rule 50(b) motion

that is not preceded by a timely Rule 50(a) motion. See Allied

Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir. 1993)

(holding that a “district court may not review a motion for JNOV

unless the movant has first sought a directed verdict.”); Perricone

v. Kansas City S. Ry. Co., 704 F.2d 1376, 1380 (5th Cir. 1983)

(“Perricone did not move for a directed verdict. He cannot

therefore be granted a judgment n.o.v. Perricone’s motion for a

directed verdict is a prerequisite. . . .”); Sulmeyer v. Coca-Cola

Co., 515 F.2d 835, 846 n.17 (“It would be a constitutionally

impermissible re-examination of the jury’s verdict for the district

court to enter judgment n.o.v. on a ground not raised in the motion

for directed verdict.”). 

The language of the Stein, Perricone, and Sulmeyer cases,

however, does not control over a plain error case such as Flintco

or the case before us. In Sulmeyer, for example, we were faced

with a different scenario; the district court in that case denied

the appellant’s motion for judgment n.o.v. We affirmed this denial

and stated in dicta that the district court could not have granted

the judgment n.o.v. without a prior directed verdict motion. See

Sulmeyer, 515 F.2d at 846. But this dicta was addressed to a

situation where the appellant was trying to raise a new theory that

it had not argued at trial after the jury had returned its verdict;

Sulmeyer did not contemplate the plain error situation. See id. 

The other two cases, Stein and Perricone, also did not involve
8

plain error. In Stein, we concluded that the evidence was

sufficient to support the verdict. See Stein, 996 F.2d at 114

(“[R]easonable jurors could have concluded from the evidence that

Allied did not give Bolin actual or apparent authority to do

anything with the replacement stock but return it to Allied. The

JNOV therefore cannot stand”; footnote omitted, emphasis added).

Stein also rested on the ground that the theory on which the JNOV

was granted was never raised, by pleading or argument or request

for jury instructions or otherwise, prior to verdict. Id. at 114-

115. Hence, Stein’s discussion of the requirement of a Rule 50(a)

predicate motion for a judgment n.o.v. was not addressed to the no

evidence/plain error situation. The same is true of Perricone;

there we also reversed the district court’s conditional grant of a

motion for new trial under the more lenient standard of review

applicable to grants of a new trial, finding there was evidence to

support the verdict. See Perricone, 704 F.2d at 1380-81. Our

brief mention of the procedural requirements for a judgment n.o.v.

was again made in the context of a case where there was some

evidence. See id. at 1381 (holding that “there was abundant

evidence. . . .”).

Despite suggestions to the contrary in Sulmeyer, Perricone,

and Stein, Flintco held district courts can grant Rule 50(b)

motions without the prerequisite Rule 50(a) motions, provided the

district court is granting the motion in order to avoid a manifest

miscarriage of justice under the plain error standard. We thus

apply the Flintco plain error standard. Under this standard, we
9

must first review the record to see if there is any evidence

supporting the jury’s verdict. If we find there is none, then we

can affirm the judgment as a matter of law if doing so will avoid

a manifest miscarriage of justice. 

Barrios, as appellant, bears the burden of demonstrating that

the lower court’s grant of judgment as a matter of law was

erroneous. Under the plain error standard of review, we cannot

review the sufficiency of the evidence. See Karajala v. JohnsManville Products Corp., 523 F.2d 155, 157 (5th Cir. 1975) (“We

cannot test the sufficiency of the evidence to support the jury’s

verdict beyond application of the ‘plain error’ doctrine in order

to prevent a manifest miscarriage of justice.”). Thus, Barrios

need not bring forth sufficient evidence; he must merely bring

forth some evidence supporting the jury’s verdict. Despite this

very favorable standard, Barrios has failed to meet his evidentiary

burden. He has not directed our attention to any evidence

supporting the jury’s verdict. Additionally, he has not provided

us with a transcript of the proceedings below, and thus we are

unable to thoroughly review the record for evidence supporting the

jury’s verdict. 

Barrios instead raises the creative, but legally

unsupportable, argument that Verrett’s failure to include Barrios’s

version of events in the disciplinary ticket constitutes a due

process violation because it led to a denial of Barrios’s right to

be heard at the disciplinary hearing. Due process does not require

that the charging instrument contain the accused’s version of
10

events. And furthermore, even if Barrios were entitled to give his

version of events in the charging instrument, it is difficult to

see how not doing so could make the drafter of the charging

instrument responsible for a separate due process violation that

occurred days later at a disciplinary hearing. Assuming arguendo

that Barrios was prevented from speaking in his own defense at the

hearing, this denial of due process is unconnected to what was

written in the incident report or the charging instrument, and

Verrett could not possibly be liable for the violation. 

It is undisputed that Verrett did not in any way participate

in the disciplinary hearing at which Barrios’s due process rights

were allegedly violated. Verrett’s involvement was limited to

writing an incident report and issuing a disciplinary ticket to

Barrios. There is no evidence that Verrett violated Barrios’s

rights at the disciplinary hearing; and thus, there is no evidence

supporting the jury’s finding to the contrary. We hold that the

jury’s verdict constitutes plain error that if not corrected would

result in a manifest miscarriage of justice against Verrett. 

In the alternative, we hold that Verrett’s Rule 50(a) motion

was sufficient and laid the necessary predicate for his subsequent

Rule 50(b) motion. We have previously held that the strict

technical requirements of Rule 50 are to be liberally construed so

long as the “purposes of the rule are satisfied.” See Scottish

Heritable Trust v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th

Cir. 1996). The purposes of Rule 50(b) are: 

“[1] to enable the trial court to re-examine the question

of evidentiary insufficiency as a matter of law if the
11

jury returns a verdict contrary to the movant, and [(2)]

to alert the opposing party to the insufficiency before

the case is submitted to the jury, thereby affording it

an opportunity to cure any defects in proof should the

motion have merit.” Merwine v. Board of Trustees for

State Institutions of Higher Learning, 754 F.2d 631, 634

(5th Cir. 1985) (quoting Villanueva v. McInnis, 723 F.2d

414, 417 (5th Cir. 1984)).

Verrett has satisfied the purposes of the rule.

Verrett made Rule 50(a) motions at the conclusion of Barrios’s

evidence and at the conclusion of the trial before the issue was

submitted to the jury. These Rule 50(a) motions asserted that

there was insufficient evidence on all the due process claims that

were being brought against him, but Verrett did not include a Rule

50(a) motion specifically addressed to the claim that he violated

Barrios’s due process rights at the disciplinary hearing.

Verrett’s failure to include this claim in his Rule 50(a) motion is

excusable because he could not have then known that Barrios was

asserting this claim against him. Barrios was not then claiming

that Verrett at the hearing violated his due process rights there,

and thus Verrett could not have been expected to move for a

judgment as a matter of law on this phantom issue. We hold that

Verrett satisfied the purposes of Rule 50 by making a Rule 50(a)

motion that addressed all the claims that he was reasonably aware

that Barrios was still asserting against him.

Further, at the hearing on Verrett’s Rule 50(a) motions, the

magistrate judge ruled that if (but only if) Verrett had filed a

false disciplinary report against Barrios then Verrett could in

substance be liable for a due process violation occurring at the

disciplinary hearing even though, apart from filing the false
12

report, Verrett did not otherwise have anything to do with any due

process violation at the hearing. Verrett could thus reasonably

understand that the magistrate judge had in effect ruled, prior to

the case going to the jury, that Verrett would not be liable for a

due process violation at the disciplinary hearing if the jury

found——as it in fact later did——that he did not file a false

disciplinary report. Thus, in substance, Verrett could reasonably

understand that no further Rule 50(a) motion was necessary for

Verrett as to the deprivation of due process at the hearing claim.

For this independent reason, also, Verrett’s Rule 50(b) motion

cannot be said to be fatally defective for lack of the necessary

predicate.

Since we find that Verrett made the proper motions and thereby

met the requirements of Rule 50, the plain error standard does not

apply and we review the lower court’s grant of judgment as a matter

of law under the same standard applied by the lower court. Under

this standard, we can affirm the lower court’s grant of judgment as

a matter of law if “considering the evidence with all reasonable

inferences and in the light most favorable to the party opposed to

the motion, the facts and inferences point so strongly and

overwhelmingly in favor of one party that reasonable jurors could

not arrive at a contrary verdict.” H.C. Blackwell Co. v. Kenworth

Truck Co., 620 F.2d 104, 106 (5th Cir. 1980) (citing Boeing Company

v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc)). This standard

has been met. In light of the fact that Barrios has not brought

forth any evidence indicating that Verrett violated Barrios’s due
13

process rights at the hearing, there is no evidence supporting the

jury’s verdict. As such, the grant of judgment as a matter of law

was properly granted.

For the foregoing reasons, we affirm the lower court’s grant

of judgment as a matter of law.

AFFIRMED