* Pursuant to Local Rule 47.5, the court has det ermined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 95-20156

(Summary Calendar)

_________________________

DANIEL JOSEPH LUKEN,

Plaintiff-Appellee Cross-Appellant,

versus

JAMES A. LYNAUGH;

(JOHN DOE) SMITH,

Defendants,

and

SAMUEL COODY,

Defendant-Appellant Cross-Appellee.

____________________________________________________

Appeal from United States District Court

for the Southern District of Texas

(CA-H-90-2299)

__________________________________________________

September 13, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM: *

Daniel Joseph Luken, an inmate incarcerated in t he Texas Department of Criminal Justice

(TDCJ), filed a complaint pursuant to 42 U.S.C. §1983 alleging that he was subjected to the use of2

excessive force by prison guard Smith and that Sergeant Samuel Coody, a supervisor, did not

intervene on Luken’s behalf during the incident. Fo llo wing a jury trial, the district court held that

“based on the jury’s findings and the application of the appropriate legal conclusions,” Luken

prevailed and thereafter awarded Luken damages of $200 and attorney’s fees of $3, 350. Coody

app eals, arguing that the judgment was not in accordance with the jury’s verdict and that the

imposition of damages and attorney’s fees was therefore in error. Luken cross-appeals, arguing that

the district court erred in denying Luken’s motion to amend, in denying his motion for appointment

of counsel, in denying his motion for a partial new trial, and in denying his supplemental state claims.

We find that the district court did not err in denying Luken’s various motions and AFFIRM in part.

However, we find that Coody’s appeal has merit. Because the judgment was not in conformity with

the jury verdict, we REVERSE and REMAND.

FACTS

Luken alleged that he was subjected to the use of excessive force by prison guard Smith and

that Sergeant Samuel Coody, a supervisor, did not intervene on Luken’s behalf during the incident.

At the time of the incident, psychotropic medicine had been ordered because Luken was depressed

and had deliberately cut his own wrist. After his wrist was taped and his hands were cuffed behind

his back, Luken was placed in a cage. Five officers wearing protective gear were brought into the

area, and videotaping was started in case Luken did not cooperate in receiving the ordered injection.

Luken cooperated, and was being returned to his cell when the use of force incident occurred. Smith

was behind Luken holding the handcuffs and apparently decided to go ahead of Luken through the

doorway

. In stepping ahead of Luken, he twisted the handcuffs, and Luken complained. Smith then3

slammed Luken against the door of the cage, picked him up, and threw hi m to the f l oor a total of

three times. The other officers, including Sergeant Chaney who was supervising the force-move

team, had already gone through the door ahead of Smith and Luken and had their backs to the two

combatants. Once Luken was on the ground, Smith planted his knee in the small of Luken’s back,

and the other officers twisted Luken’s legs up behind him while leg irons were brought. As a result

of the incident, Luken’s face was bruised, he required three stitches in his elbow, and he complains

that he still suffers from lower back pain.

Luken testified that he appealed to Sergeant Coody, who was present but out of camera

range, but that Sergeant Coody did nothing. Sergeant Coody testified that he was behind the camera

when the injection was being administered, but that immediately afterwards he went to the captain’s

office and did not witness the use of force. The TDCJ’s Internal Affairs Division investigated the

incident and found that Luken had been subjected to the use of excessive force by Smith and other

officers. As a result, Smith was fired and the other officers involved in the incident were

reprimanded. The invest igator confirmed Coody’s testimony that he was present only during the

injection and had no further involvement in the incident.

Luken req uest ed a trial by jury. Following a Spears hearing, the court dismissed TDCJ

Director James Lynaugh from the suit and ordered th at service be made on defendants Sergeant

Coody and Officer Casey Joe Smith. The marshal was unable to make service on Smit h, leaving

Coody as the only served defendant. The trial court appointed a “stand-by” attorney for Luken. The

attorney attended the trial, but Luken conducted his own case. Shortly after the trial began and out

or the jury’s hearing, the trial court expressed its concern that Luken had sued the wrong defendant.

The court was concern e d that in failing to tell Luken that he should have sued Chaney rather than4

Coody, the TDCJ had not complied with the discovery orders. Chaney was even present outside the

courtroom

, having been called as a witness. In the early part of the trial, Luken did not seem to

believe that he had sued the wrong person, though he adm itted that he had read the use of force

report. Over the course of the trial, the trial court considered several possible ways of dealing with

the situation. The court considered ordering Chaney substituted in the case, considered submitting

Chaney’s name to the jury as a potentially liable party, and considered the possibility of granting a

summary judgment against Chaney if Chaney were to admit his role in the incident in the course of

his testimony. The trial court strongly felt that the state should have settled the case.

Finally, the trial court decided to deny Luken’s mid-trial motion to add Chaney as a defendant,

finding that the State thought that Luken knew what he was doing, and that it would be prejudicial

to Chaney to add him as a defendant:

Mr. Luken: I would like to know if under Rule 15(c), Federal

Rules of Civil Procedure , if I can amend my

complaint?

The Court: And do what, add what?

Mr. Luken: Add Sergeant Chaney.

The Court: I think that we would have som e due process

problems, from his perspective at this point in time. If

I added him, it would only be for the purpose of

getting a proxy vote f

rom the jury . It woul d not be

binding upon him.

But as far as I’m concerned, it would be binding upon

-- from a perspective upon t he lawyers and the

Department who had a responsibility to reveal this

information. I don’t know what it is that he said. I’m

concerned now as well about your statement that you

knew he was there and you did not

-- you chose not to

sue him.5 Mr. Luken: The reason why I did that is because I read a case,

Harris versus Chancellor, in the Fifth Circuit Court of

Appeals where it states that if a superv isor fails to

intervene, that you can sue that supervisor.

The Court: Right.

Mr. Luken: I did not know that you can sue several supervisors or

two supervisors. I only thought you can sue one

supervisor because I don’t k now much about l aw. I

interpreted that as you can sue a supervisor.

The Court: Well, I’m no t sure that that is -- I haven’t seen any

inmates who have been bashful yet. They sue

everybody they can think of. And then they wait on

me who it is they can keep in the lawsuit.

. . . .

I’m of the opini on that at thi s poi nt to perm it y ou to

amend

- - part of the reason I back off of my

admonition is because if there is anything that should

be done, it should be in the nature of a sanction as

opposed to something that might

-- a sanction against

the prison officials, the attorneys or whomever, but I

don’t know that it wo uld -- I’m of the opinion that

that would not be a reason to prevent Mr. -- What’s

his name”

Mr. Luken: Chaney.

The Court: -- Chaney from having his day in court. R.5, 275-78.

The jury was given four special interrogatories to answer. In response to Jury Question No.

1, the jury found that Coody had failed to intervene or render assistance to Luken during the use of

excessive force. The jury det ermined in its answer to Jury Question No. 2 that Coody’s failure to

intervene was not a proximate cause of the injuries sustained by Luken. The jury also concluded in

it s answer to Jury Question No. 4 that Coody’s failure to intervene was not done maliciously and

willfully or with reckless or callous disregard for Luken’s rights. As directed, the jury did not6

respond to Jury Question No. 3 concerning damages and punitive damages because it had answered

“no” to the proximate cause question of Jury Question No. 2.

The district court entered a memorandum order in which it determined that the undisputed

evidence at trial showed that unnamed def endant s acted intentionally and used unlawful excessive

force against Luken which resulted injury. The district court noted that Coody had asserted that he

was not present during the incident and had no knowledge of the incident. The court also stated that

t he “plaint iff’s injuries came exclusively from the use of force that was inflict ed on him on the

occasion by the acts of ‘unnamed defendants [sic].’”

The district court interpreted the jury’s response to the first interro gat o ry as a finding that

Coody was present during the use of excessive force and that he acted with deliberate indifference

to the circumstances giving rise to the injuries sustained by Luken. The court then found that Jury

Question No. 2 was superfluous because there was “no dispute” relative to the causal connection

between the injuries sustained by Luken and the use of force. The court did not discuss Question

No. 4, but instead determined that the jury had found that Coody either wanted harm to come to the

plaintiff or totally lacked concern for his welfare during the incident.

The district court determined that the jury’s affirmative response to Jury Questi on #1

established that the jury had found that Coody was deliberately i ndifferent, and that Luken had

prevailed in the case. The district court then awarded Luken nominal damages of $200 and ordered

him to present affidavits stating the time expended in the preparation and trial of the case.

Subsequently, the court awarded Luken’s stand-by trial counsel attorney’s fees of $3,350.

DISCUSSION7

Coody argues that the district court erred in failing to enter a judgment in accordance with

the jury’s verdict because the jury’s answer to Jury Question #1 is consistent with his testimony that

he was not present when the use of force occurred and the jury’s answers to the rest of the questions

showing no causation and no reckless or willful disregard are consistent with their answer to the first

question. He further argues that the district court in effect entered a judgment as a matter of law

under Fed. R. Civ. P. 50 and that as Luken had not made the prerequisite motion, he should not have

been awarded the judgment. Coody further argues that the award of damages and fees was in error

because the jury had found in his favor, and that he cannot be found liable for damages in the absence

of a finding of deliberate indifference by the jury.

While federal district courts have considerable latitude in interpreting special interrogatories,

there are limitations to that discretion. P & L Contractors, Inc. v. American Norit Co., Inc. , 5 F.3d

133, 137-38 (5th Cir. 1993). Under the Sevent h Amendment and Fed. R. Civ. P. 58(2), a district

court is bound to enter judgment on the jur y’s answers if they are clear and consistent. I d

. If the

jury’s answers to special interrogatories are clear and consistent, then a judgment not in accord with

those answers must be reversed. S ee P & L Contractors

, 5 F.3d at 138. Therefore, we must consider

whether the jury’s answers are clear and consistent under the circumstances of the instant case.

A convicted inmat e’s failure-to-protect claim is evaluated under the Eighth Amendment’s

“deliberate indifference” standard. F armer v. Brennan

, 511 U.S. 825, 114 S. Ct. 1970, 1976-79, 128

L. Ed 2d 811 (1994). A prison official is deliberately indifferent if the official is both “aware of facts

from which the inference could be drawn that a substantial risk of harm exis ts” and he draws that

inference. I d

. at 1979. Jury Question No. 1 asked whether Coo dy failed to intervene or render

assistance to Luken during the use of excessive force. The jury answered “Yes.” The jury’s answer8

to this question merely indicates that Coody did not intervene, it does not indicate whether Coody

was present or not during the use of force. In its answer to Question No. 2, the jury found that

Coody’s failure to intervene was not a proximate cause of the injuries sustained by Mr. Luken, and

in Question No. 4, the jury found that Co o dy’s failure to intervene was not done maliciously and

willfull y o r wit h reckless or callous disregard for Luken’s rights. Thus, clearly the jury’s answers

were consistent with a finding that Coody had not been deliberately indifferent. The trial court’s

interpretation to the contrary is not consistent with the jury’s verdict and must therefore be reversed,

as must the award of damages and at torney’s fees. Because we are reversing on the basis of this

inconsistency, Coody’s argument that Luken had not filed a motion for judgment as a matter of law

is moot.

Luken argues that the district court abuse d its discretion in denying his request for

appointment of counsel. He asserts that his severe blurred vision prevent ed him from properly

conducting discovery and exercising his right to sue every officer who participated in the attack. A

district court may appoint counsel in civil rights cases presenting “exceptional circumstances.” U lmer

v. Chancellor

, 691 F.2d 209, 212 (5th Cir. 1982). Am ong the factors to be considered are the

complexity of the issues and the plaint iff’s abilit y to represent himself adequately. U lmer

, 691 F.2d

at 213. Luken first asserted that his blurred vision was a negative factor in his self-representation

almost two years after the magistrate judge denied his init ial motions for appointment of counsel and

almost nine months after the Spears hearing. Furthermore, Luken’s numerous coherent and legally

supported pleadings in the district court contr adict his allegation that his severe blurred vision

hampered his abilit

y to represent himself during the pretrial proceedings. Thus, Luken has not shown

that the district court abused its discretion in failing to appoint him counsel prior to trial.9

Luken also argues that the district court erred in denying his supplemental state claims. In

his original complaint, Luken generally alleged that he was seeking relief under state law. However,

he did not allege in his complaint or in any other pleading the specific basis for his claims under state

law, nor has he indicated any specific state law claims in his cross-appeal. Pursuant to Fed. R. App.

P. 28(a)(6), an appellant’s argument must contain the contentio ns o f t he appellant on the issues

presented, the reasons th erefore, and citations to the authorities, statutes, and parts of the record

relied upon. Contentions not briefed in accordance with Rule 28 are deemed waived and will not be

considered on appeal. Zeno v. Great Atlantic & Pacific Tea Co.

, 803 F.2d 178, 180 (5th Cir. 1986).

As Luken did not identify any specific state law claims in his brief or anywhere else, they are deemed

waived.

Luken further argued that the district court erred in denying his motion for a partial new trial

to allow the jury to determine his damage claim, and argues that the jury instructi ons erroneousl y

directed the jury

no t to consider the issue if it determined that Coody’s conduct was not the

proximate cause of his injuries. Where there is no error in the interrogatories and instructions

presented to the jury, and the jury’s answers to the interrogatories are not inconsistent, a di stri ct

court’s denial of a partial new trial should be affirmed. W ood v. Carboline Co. , 736 F.2d 301, 303

(5th Cir. 1984). Consistent with the jury’s findings in Question No . 2 and Question No. 4 that

Coody’s failure to intervene was not malicious or willful and was not the proximate cause of Luken’s

injuries, the jury refused to award the dam ages out lined in Question No. 3. Because the

interrogatories are consistent with the standard of deliberate indifference, and the jury’s answers to

those interrogatories are internally consistent, Luken is not entitled to a partial new trial.10

Finally, Luken argues that the distric t co urt erred in denying his request to amend his

complaint to add Chaney as defendant. He contends that the prison administrators and the defendant

thwarted his attem

pts to discover the names of the individuals involved in the incident, and argues

that the amendment would not have been prejudicial because all parties were aware that not all the

participants had been sued.

A party must obtain leave of court to amend his complaint once responsive pleadings have

been filed, and leave to amend is to be freely given when justice so requires. Fed. R. Civ. P. 15(a).

Furthermore, parties may be dropped or added by order of the court on motion of any party or of its

own ini t iat ive at any state of the action and on such terms as are just. Fed. R. Civ. P. 21. “In

deciding joinder motions, courts emphasize pragmatic considerations rather than rigid formalism: the

maximum effective relief with the minimum expenditure of judicial energy. “ Gentry v. Smith

, 487

F.2d 571, 579-80 (5th Cir. 1973)(citations omitted). This concern with the practical gives the district

judge wide latitude in deciding when the promise of a speedy resolution to a controversy in a single

action outweighs any inconvenience to the parties caused by a failure to conform stri ctl y to the

requirements of pleading, and it is permissible to join a defendant at any stage of the litigation in the

trial court so long as it is given sufficient notice and opportunity adequately to defend its interests.

Gentry

, 487 F.2d at 580. Thus, a district court has the discretion to add a defendant even on remand

after appeal under Ru le 21, if the court finds it would be practical to do so and provided the

defendant has sufficient notice and opportuni ty to defend its interests. S ee Gentry

, 487 F.2d at 580.

A court will typically refuse a change that comes so late in the litigation that it will delay the case or

prejudice any of the parties to the action. 7 C H ARLES A. W RIGHT ET AL

., F EDERAL P RACTICE AND

P ROCEDURE §1688 (1986).11

In the instant case, the dist rict court expressed concern that Luken might not have known

before trial that he had named the wrong defendant. However, well before trial, Luken had received

the investigative report that indicated that Chaney was assigned as supervisor of the use-of-force team

while Coody claimed he was not even present during t he incident. Thus, Luken had access to the

needed information, and opportuni ty to amend his complaint well before trial, though he apparently

mistook Coody for Chaney until well into the trial. The district court considered carefully whether

there would be any practi cal way t o add Chaney as defendant, yet ultimately decided that Chaney

would not have an adequate opportuni ty to defend his interests, t hough he knew, or should have

known that but for a mistake concerning his identity, the action would have been brought against him.

( See Moore v. Long

, 924 F.2d 586 (5th Cir. 1991)(substituting a party defendant and relation back

so as to toll a statute of limitations under Fed. R. Civ. P. 15(c)). The district court did not abuse its

discretion in denying the motion to amend at that late stage in the proceedings.

In conclusion, the denial of Luken’s motion for appointment of counsel is AFFIRMED, the

denial of his motion for partial new trial is AFFIRMED, and the denial of his motion to amend is also

AFFIRMED. Furthermore, Luken’s supplemental state law claims are deemed waived. The district

court’s judgment in favor of Luken as well as the a wards o f damages and attorney’s fees are

REVERSED, and the case is REMANDED with instructions to enter judgment in accord with the

jury’s verdict. Because this case has been decided wit hout oral argument, Luken’s “Motion to

Overrule the Defendant’s-Appellant’s Motion for Oral Argument” is denied as moot.