IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10849

Summary Calendar

JAY ANTHONY NOTTINGHAM,

Plaintiff-Appellant

v.

JOEL FINSTERWALD, Sheriff of Wheeler County; JULIAN TORREZ, Deputy 

Sheriff of Wheeler County; CATHY BURRELL, Independent Executrix of 

Estate of Jon C. Burrell, also known as Jon Burrell; STEVE STOKES, also 

known as Stokes,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:09-CV-250

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:*

Jay Anthony Nottingham, Texas prisoner # 1490726, appeals the jury 

verdict in favor of Defendants in a 42 U.S.C. § 1983 suit alleging excessive use 

of force, the denial of his motions for appointment of counsel, and the denial of 

his postjudgment motions to correct and provide expert review of the trial 

* 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

FILED

February 20, 2014

Lyle W. Cayce

Clerk

 

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No. 12-10849

record. He also moves this court to appoint an expert to review the trial record 

and to strike Defendants’ brief.

First, Nottingham contends that the district court erred in denying his 

motions to correct and provide expert review of the trial record because the 

trial transcript contained material omissions and errors in the transcription of 

the testimony of several witnesses. However, he has failed to overcome the 

statutory presumption of accuracy of the trial transcript. See 28 U.S.C. 

§ 753(b); Veillon v. Exp. Servs., Inc., 876 F.2d 1197, 1201 (5th Cir. 1989). For 

the same reason, he has failed to show that we should appoint an expert to 

review the trial record, and thus his motion for expert review is DENIED.

Next, Nottingham asserts that appointed counsel was necessary to 

effectively present his case, but he has not shown any abuse of discretion in 

the denial of appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th 

Cir. 1987). The only issue remaining in the case, whether and which 

Defendants struck Nottingham and whether he received these injuries before 

or after he was handcuffed, was not complex; Nottingham had personal 

knowledge of the operative facts and key witnesses; Nottingham repeatedly 

demonstrated that he was able to effectively present his case in the instant 

proceeding as well as other pending cases; and Nottingham’s disabilities were 

accommodated during trial.

Nottingham also contends that a new trial is warranted because the 

jury’s verdict was against the great weight of evidence. There is no indication 

in the record that Nottingham moved before or after the verdict for a judgment 

as a matter of law pursuant to Federal Rule of Civil Procedure 50. Accordingly, 

the sufficiency of evidence supporting the verdict is reviewed for plain error to 

determine “whether there was any evidence to support the jury verdict.” 

Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001) 

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No. 12-10849

(internal quotation marks and citation omitted). Nottingham claimed that 

Defendants used excessive force against him after he was handcuffed. 

Defendants presented evidence that Nottingham could have been injured 

before he was handcuffed, no one beat Nottingham after he was handcuffed, 

and Defendants were not present when Nottingham was handcuffed. 

Nottingham offered some contrary testimony, but his credibility was 

undermined by defense witnesses and his criminal history. There was more 

than enough evidence to support the verdict. See id.

Next, Nottingham contends that the district court made inflammatory 

and prejudicial remarks during trial when he was attempting to admit an 

ambulance report, but he fails to identify the location of the remarks in the 

trial transcript. Instead, he asserts that this remark was not transcribed. 

Nottingham’s assertion about inaccuracies in the trial transcript will not be 

considered since he has failed to prevail on his claims about the trial transcript. 

Nottingham also complains that his credibility was harmed by the 

presence of uniformed and armed prison guards in proximity to him during 

trial. Assuming, arguendo, that this claim of error was preserved, any error is 

harmless since Nottingham’s incarceration was apparent to the jury.

We will not consider Nottingham’s claim about witness tampering 

because it is raised for the first time in his reply brief. See United States v. 

Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010).

Last, Defendants have complied with the applicable rules regarding 

service of a filing party’s brief on an unrepresented party. See FED. R. APP. P. 

31(b); 5TH CIR. R. 31.1. Nottingham’s motion to strike their brief is DENIED.

JUDGMENT AFFIRMED; MOTIONS DENIED. 

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