* 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this opinion should not be published and is not precedent except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

May 6, 2004

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 02-41308

Summary Calendar

ASH BABATUNDE BAKRE,

Plaintiff-Appellant,

versus

CHRISTOPHER IVINS, Individually and in his 

official capacity as Correctional Officer 3; 

BLAKE LAMB, Individually and in his official 

capacity as Sergeant,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

(9:99-CV-140)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges

PER CURIAM:*

Ash Babatunde Bakre, Texas state prisoner # 784509, appeals,

pro se, from the judgment adopting the jury’s verdict and

dismissing with prejudice his 42 U.S.C. § 1983 compliant for

excessive force by correctional officers.

Bakre contends that the district court erred by failing to

require Defendants to produce Bakre’s x-rays for trial and by not

allowing the jury to view all of Bakre’s exhibits. The jurors
2

reviewed the radiologist’s reports interpreting the x-rays and

heard testimony from a doctor interpreting the reports. Further,

Bakre is mistaken in his assertion that the jurors were not

permitted to see his exhibits; all of the medical records

introduced at trial were sent to the jury room during

deliberations. The evidentiary rulings were not an abuse of

discretion. Polanco v. City of Austin, Tex., 78 F.3d 968, 982 (5th

Cir. 1996). 

Bakre further contends that the district court denied him due

process by allowing Defendants to question him about his underlying

1997 criminal conviction for murder. The district court did not

abuse its discretion in admitting evidence of Bakre’s felony

conviction; it was proper impeachment evidence. See FED. R. EVID.

609(a); Polanco, 78 F.3d at 982. 

Bakre next asserts that the district court’s failure to

subpoena certain medical witnesses affected the outcome of the jury

verdict; however, the written reports of the uncalled witnesses

were read into the record and were also interpreted by a medical

doctor. The district court did not abuse its discretion in

permitting the trial to proceed without these witnesses. Gibbs v.

King, 779 F.2d 1040, 1047 (5th Cir. 1986).

Finally, Bakre contends that the judgment was contrary to the

law and evidence. Bakre did not move for judgment as a matter of

law at the conclusion of the evidence or after the jury reached its
3

verdict. Accordingly, “if any evidence exists that supports the

verdict, it will be upheld”. Flowers v. Southern Regional

Physician Services, Inc., 247 F.3d 229, 238 (5th Cir. 2001).

Defendants testified that Bakre refused to obey an order, kicked

and screamed when Defendants tried to handcuff him, and had to be

brought to the floor in order to be restrained. Therefore, the

requisite “any evidence” supports the jury’s determination that the

Officers did not use excessive force and that an objectively

reasonable Officer would have found the conduct acceptable under

the circumstances. See Spann v. Rainey, 987 F.2d 1110, 1115 & n.7

(5th Cir. 1993). 

AFFIRMED