IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30879

JASON HACKER, 

 Plaintiff - Appellant

v.

N. BURL CAIN, Warden, Louisiana State Penitentiary at Angola, in His 

Official and Individual Capacities; LOUISIANA DEPARTMENT OF PUBLIC 

SAFETY AND CORRECTIONS; LOUISIANA STATE PENITENTIARY AT 

ANGOLA; JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF 

PUBLIC SAFETY AND CORRECTIONS, in His Official and Individual 

Capacities, 

 Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:14-CV-63

Before STEWART, Chief Judge, KING and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff Jason Hacker, an inmate in the Louisiana State Penitentiary, 

sued the prison and various officials for failure to accommodate his disability. 

A jury determined that Hacker did not suffer a disability as defined by the 

 

* 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

December 27, 2018

Lyle W. Cayce

Clerk

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Americans with Disabilities Act, and the district court denied Hacker’s posttrial motions. Hacker appeals. For the following reasons, we AFFIRM.

I.

Jason Hacker is incarcerated in the Louisiana State Penitentiary, 

commonly known as Angola. On October 17, 2011, Hacker went to Angola’s eye 

clinic complaining of blurred vision, sudden weight loss, and increased hunger. 

After the visit, his symptoms did not improve, and he continued to complain of 

“blurry vision.” Hacker was prescribed and received eyeglasses but still had 

trouble seeing. 

On June 24, 2012, a doctor at Pennington Biomedical Research Center 

at Louisiana State University (“LSU”) diagnosed Hacker with cataracts and 

recommended that he receive cataract-removal surgery. Later that year, LSU 

ophthalmologists performed a corneal topography to determine the quality of 

Hacker’s vision. The results of this test are not clear from the record.

Hacker did not receive cataract removal surgery until 2014. Between his 

initial diagnosis and the surgery, Hacker contends that his vision continued to 

decline. In addition to his generalized complaints that his vision was blurry, in 

May 2013, Hacker began to complain that his cataracts were causing him 

trouble seeing far away and that he had severe pain in his eyes when exposed 

to sunlight. On several occasions, medical records indicate that Hacker was 

“legally blind.” At one point, his vision was recorded as being as bad as 20/400 

in his left eye, and he was unable to read the eye chart with his right eye. But 

in March 2014, just four months before his cataract surgery, Hacker’s vision 

was 20/60 in his right eye and 20/100 in the left—although his medical records 

note that he “look[ed] ‘over his cataract’ [in his] right eye in order to see [the] 

eye chart.” 

Hacker argues that despite his inability to see, the prison did not 

accommodate his disability. In fact, Hacker was moved from working in the tag 

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plant to work in Angola’s fields in the spring of 2013—work he contends is too 

dangerous to be performed by someone with limited vision. On one occasion, 

Hacker made an emergency request for health care while working in the fields

because of his vision problems. Hacker testified that, while working in the 

fields, he tore his pectoral muscle off his bone because he could not see a heavy 

bale of hay that was being tossed toward him. Hacker and his fellow inmates 

also testified that his poor eyesight impaired his ability to see, write, work, and 

play music.

After filing an unsuccessful request through Angola’s administrative 

remedy procedure, Hacker filed suit in federal court. His amended complaint 

asserted claims under the Eighth Amendment, Americans with Disabilities 

Act (“ADA”), and Rehabilitation Act. Prior to trial, the district court entered 

several orders in limine. As is relevant here, the district court denied Hacker’s 

motion to exclude evidence regarding his disciplinary record as moot based on 

defendants’ representation to the court that they would not introduce such 

evidence. The district court ordered that defendants could not “offer evidence 

or refer to the specific crimes for which [Hacker] was convicted or the conduct 

which led to his conviction.” Finally, the district court also prohibited evidence 

of medical treatment unrelated to Hacker’s cataracts, “except as it may bear 

on the issues related to [Hacker’s] cataracts.” 

The jury returned a verdict for the defense, finding that Hacker was not 

disabled under the ADA and defendants did not act with deliberate 

indifference to Hacker’s medical needs in violation of the Eighth Amendment. 

Having properly moved for judgment as a matter of law under Federal Rule of 

Civil Procedure 50(a) at the close of defendants’ case, Hacker renewed his 

motion under Rule 50(b), or, in the alternative, moved for a new trial under 

Rule 59. The court denied the motions, finding that reasonable jurors could 

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have found for defendants on all issues and a new trial was not necessary. 

Hacker’s appeal is limited to his claim under the ADA. 

II.

“We review de novo the district court’s denial of a motion for judgment 

as a matter of law, applying the same standard as the district court.” Travelers 

Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 481 (5th Cir. 

2008). A court may grant a motion for judgment as a matter of law if “the court 

finds that a reasonable jury would not have a legally sufficient evidentiary 

basis to find for the party on [an] issue.” Fed. R. Civ. P. 50(a)(1). “When 

reviewing the denial of a motion for judgment as a matter of law, we will uphold 

a jury verdict unless the facts and inferences point so strongly and so 

overwhelmingly in favor of one party that reasonable men could not arrive at 

any verdict to the contrary.” Cousin v. Trans Union Corp., 246 F.3d 359, 366 

(5th Cir. 2001); see also Foradori v. Harris, 523 F.3d 477, 485 n.8 (5th Cir. 

2008) (noting that same standard applies to review of renewed motion under 

Rule 50(b)). “In resolving such challenges, we draw all reasonable inferences 

and resolve all credibility determinations in the light most favorable to the 

nonmoving party.” Foradori, 523 F.3d at 485. But “[e]ven though we might 

have reached a different conclusion if we had been the trier of fact, we are not 

free to re-weigh the evidence or to re-evaluate credibility of witnesses.” Id.

(quoting Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 297 (5th Cir. 2005)).

Our review of a motion for a new trial is more deferential, and we will 

only reverse the trial court’s denial of a motion for a new trial “when there is a 

clear showing of an abuse of discretion.” Id. at 497. “Where a jury verdict is at 

issue, ‘there is no . . . abuse of discretion unless there is a complete absence of 

evidence to support the verdict.’” Benson v. Tyson Foods, Inc., 889 F.3d 233, 

234 (5th Cir. 2018) (per curiam) (omission in original) (quoting Sam’s Style 

Shop v. Cosmos Broad. Corp., 694 F.2d 998, 1006 (5th Cir. 1982)). Courts

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“should not grant a new trial on evidentiary grounds unless the verdict is 

against the great weight of the evidence.” Whitehead v. Food Max of Miss., Inc., 

163 F.3d 265, 269 (5th Cir. 1998) (quoting Pryor v. Trane Co., 138 F.3d 1024, 

1026 (5th Cir. 1998) (per curiam)).

III.

Hacker first argues that the district court should have granted his posttrial motions because the jury unreasonably concluded that he was not 

disabled.1 Hacker also argues that even if the jury’s conclusion was reasonable, 

the district court should have granted his motion for a new trial because 

defendants violated the district court’s orders in limine. We address each 

argument in turn.

A.

Hacker fails to demonstrate that no reasonable juror could find that he 

was not disabled. Nor has Hacker demonstrated that the district court abused 

its discretion in denying his motion for a new trial. Therefore, we affirm the 

district court’s denial of his post-trial motions as they pertain to his disability 

claim.

The Rehabilitation Act and Title II of the ADA prohibit state and local

governments, including prisons, from discriminating on the basis of disability.

29 U.S.C. § 794; 42 U.S.C. §§ 12131-32; see also Hale v. King, 642 F.3d 492, 500 

(per curiam) (5th Cir. 2011). To qualify for protection, a plaintiff must first 

show that he is a “qualified individual within the meaning of the ADA”—i.e., 

 

1 Hacker also challenges the district court’s summary judgment ruling. We “will not 

review the pretrial denial of a motion for summary judgment where on the basis of a 

subsequent full trial on the merits final judgment is entered adverse to the movant.” Black 

v. J.I. Case Co., 22 F.3d 568, 570 (5th Cir. 1994). Therefore, we do not address Hacker’s 

arguments relating to summary judgment.

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that he is disabled.2 See Windham v. Harris County, 875 F.3d 229, 235 (5th

Cir. 2017). The ADA defines a “disability” as “(A) a physical or mental 

impairment that substantially limits one or more major life activities of such 

individual; (B) a record of such an impairment; or (C) being regarded as having 

such an impairment . . . .” 42 U.S.C. § 12102(1). Hacker argues that the jury 

should have found that he was disabled under either subsection A or B.

1.

We first consider whether a reasonable juror could have concluded that 

Hacker did not have a physical impairment that substantially limited one or 

more major life activities. 

To prove that he is disabled under subsection A, a plaintiff must show

that he has a physical or mental impairment. E.E.O.C. v. Chevron Phillips 

Chem. Co., 570 F.3d 606, 614 (5th Cir. 2009). But merely having an impairment 

is not sufficient to prove disability under the ADA; the plaintiff “also need[s] to 

demonstrate that the impairment substantially limits a major life activity.” Id.

“[T]o be substantially limited means to be unable to perform a major life 

activity that the average person in the general population can perform, or to 

be significantly restricted in the ability to perform it.” Hale, 642 F.3d at 500 

(alteration in original) (quoting Chevron Phillips, 570 F.3d at 614); see also 28 

C.F.R. § 35.108(d)(v). The ADA’s implementing regulations expressly state 

that “seeing” is a major life activity. § 35.108(c)(1)(i). 

Considering all the evidence, the facts and inferences do not point so 

strongly in favor of Hacker such that a reasonable juror must find Hacker to 

be disabled under subsection A. At trial, the parties presented competing 

narratives. Hacker argued that he suffered progressive visual impairment over 

 

2 For our purposes, the analysis under the ADA and the Rehabilitation Act is the same. 

Cf. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (“Jurisprudence interpreting either 

section is applicable to both.”).

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several years, emphasizing the numerous medical records labeling him “legally 

blind” or recommending cataract surgery. Defendants conceded that Hacker 

had cataracts but posited that Hacker had exaggerated the extent to which the 

cataracts hindered his vision to avoid working in the fields. They pointed to 

the fact that Hacker’s complaints became more frequent and his reports of his

vision problems became more severe when he was assigned to work in the fields 

in the spring of 2013. And defendants highlighted that an eye exam is 

necessarily based on a person’s own subjective reporting of his ability to read 

an eye chart and thus any diagnoses of legal blindness were based on Hacker’s 

self reports. Defendants’ expert Dr. Peter Kastl also testified that a person can 

function with cataracts for years, or even decades. Dr. Kastl further testified

that in March 2014, medical records suggested that Hacker’s vision was not as 

poor as earlier records indicated. Although earlier records stated that his 

vision was 20/400 in his left eye and he was unable to read the eye chart with 

his right, the March 2014 record states his vision to be 20/60 in his left eye and 

20/100 in his right. Thus, a reasonable jury could fairly conclude that even 

though Hacker had cataracts, they did not substantially limit his vision.

Hacker protests that Congress’s 2008 amendment to the ADA broadened

the definition of disability such that courts must broadly construe the term “in 

favor of expansive coverage, to the maximum extent permitted by the terms of 

the ADA.”3 See § 35.108(a)(2)(i). But the issue here is not whether severe

cataracts are a disability that would fall within the ADA; the question is 

 

3 Similarly, Hacker argues that the Ninth and Sixth Circuits have found cataracts to 

be a “serious medical need” in the Eighth Amendment context. But again, these arguments 

miss the point: the parties agree that severe cataracts may qualify as a disability, but the 

question is whether Hacker in fact had such cataracts. The Ninth Circuit recognized as much, 

acknowledging that a cataract can be “minor” with “little impact on an inmate’s vision.” 

Colwell v. Bannister, 763 F.3d 1060, 1067 (9th Cir. 2014) (quoting Michaud v. Bannister, No. 

2:08-cv-1371, 2012 WL 6720602, at *5 (D. Nev. Dec. 26, 2012)).

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whether Hacker actually suffered from severe cataracts. This is a factual 

dispute that the jury reasonably resolved in defendants’ favor.

In fact, most of Hacker’s arguments on appeal concern factual disputes. 

For example, he argues that the jury could not reasonably conclude that 

Hacker raised his vision problems to avoid working in the fields because he 

had tried to obtain cataract treatment for two years prior. It is true that Hacker 

first visited the eye clinic in October 2011 and on several occasions throughout 

2012. But his visits picked up around the time he was assigned to field work

in the spring of 2013, and it was during this time that he made his emergency 

request for health care, complaining of his vision. Moreover, although Hacker 

argued at trial that working in the tag plant was a dangerous job for someone 

with poor vision, he did not complain that his vision prevented him from 

working until he was reassigned from the tag plant to field work. Thus, there 

is evidence on both sides of this issue.

Hacker also argues that defendants “manufacture credibility issues 

regarding medical records they dislike.” Hacker contends that the medical 

records are objective and must be believed; therefore, because the records state 

that he was legally blind, the jury could not have reasonably found that he was 

not substantially limited in a major life activity. But as Dr. Kastl testified at 

trial, a vision exam in which a patient reads an eye chart depends on the 

patient’s own self-reported responses. Therefore, jurors could have judged the 

credibility of the various witnesses and found that Hacker had exaggerated the 

effect of his cataracts in his vision exams.

Dr. Kastl also pointed out that Hacker’s medical records just prior to 

surgery showed that his visual acuity was 20/60 and 20/100—significantly 

better than prior records suggested. Hacker argues that Dr. Kastl failed to 

consider his visual field, noting that the same record states that Hacker had to 

“look around” his cataract to read the eye chart. Hacker points out that his own

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expert, Dr. Bell, also reviewed the medical records and testified that he 

believed Hacker was blind. Although Hacker’s argument is reasonable, it does 

not definitively show that no reasonable juror could have found against him. 

Dr. Kastl testified that he had reviewed all of Hacker’s medical records, so the 

jurors could reasonably infer that Dr. Kastl considered Hacker’s loss of visual 

field but found it not to be convincing. And it is possible that the jurors chose 

to trust the medical diagnosis of Dr. Kastl, a board-certified ophthalmologist, 

over the opinion of Dr. Bell, who held a doctorate in rehabilitation education 

rather than medicine.

Hacker’s various other objections to the evidence at trial are 

unsuccessful. He argues that the Assistant Warden of Health Services 

concluded that Hacker was legally blind, but her review was based on the same 

records discussed above. He contests defendants’ evidence that Hacker was 

substantially limited in major life activities because he could still play in a 

band and write letters, pointing to testimony that he had trouble reading other 

band members’ cues and that his cataracts prevented him from reading and 

writing in some conditions but not others. And he argues that the jurors must 

have concluded that his ripped pectoral muscle occurred because of his 

inability to see, even though there was no medical record of the event. But to 

overturn the jury’s verdict would require us to engage in the type of evidence 

weighing and credibility assessments prohibited on appellate review. Because 

there was sufficient factual evidence to support the jury’s verdict against 

Hacker, we must let the verdict lie.

Finally, Hacker argues that the jury should have drawn an adverse 

inference from defendants’ failure to put forward a witness to testify about

Hacker’s limitations. Otherwise put, Hacker argues that because defendants’ 

employees would have observed Hacker in the prison, defendants should have 

called one of their own employees to testify to his ability to perform major life 

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activities. Because they did not present such evidence, Hacker reasons that the 

jury should have inferred that if defendants had called their own witness, the 

witness’s testimony would not have been in their favor. Although we have 

recognized this adverse inference in some circumstances, its application is 

limited; the inference only applies when “the missing witness has information 

‘peculiarly within his knowledge.’” United States v. Wilson, 322 F.3d 353, 363 

(5th Cir. 2003) (quoting Streber v. Comm’r, 138 F.3d 216, 221-22 (5th Cir. 

1998)). Here, Hacker’s fellow inmates witnessed his behavior and testified on 

his behalf. Therefore, there was no need for defendants to also put a witness 

on the stand, as they could rely on their cross-examination of Hacker and his 

fellow inmates. Cf. id. at 363 n.14 (noting exception to presumption where 

witness is equally available to both parties).

In sum, Hacker presents a reasonable case for why the jury should have 

found in his favor. But it is the function of the jury, not the court, to make 

credibility determinations and weigh the evidence. Because we cannot

conclude that the jury acted unreasonably in finding that Hacker was not 

disabled, we find that the district court properly denied judgment as a matter 

of law on this issue. Additionally, it cannot be said that there was no evidence 

in support of such a verdict, and the district court acted within its discretion 

in denying Hacker’s motion for a new trial. 

2.

Hacker fails to demonstrate that the jury’s conclusion that he did not 

have a record of impairment was unreasonable or unsupported by evidence.

“An individual has a record of such an impairment if the individual has a 

history of, or has been misclassified as having, a mental or physical 

impairment that substantially limits one or more major life activities.” 

§ 35.108(e)(1). To demonstrate a disability under subsection B, the plaintiff 

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must show that (1) he “has a record of an injury or impairment” and (2) that 

the “impairment limited a major life activity.” Hale, 642 F.3d at 502. 

Hacker points to instances in his medical records noting that he was 

legally blind or that he had cataracts. These medical records alone, he reasons,

show that he is disabled under subsection B. But defendants presented 

evidence disputing whether he had a record of, or history of, visual impairment.

See Adams v. Rice, 531 F.3d 936, 946 (D.C. Cir. 2008) (applying three-step test 

to evaluate claims of disability under subsection B, first considering whether 

the plaintiff has a “history of a mental or physical impairment”). Otherwise 

put, defendants challenged whether Hacker’s medical record, when taken as a 

whole, reflected a history of visual impairment. As discussed above, defendants 

presented evidence calling into question whether Hacker’s eye chart 

examinations could objectively measure the severity of his visual impairment.

Defendants also pointed to Hacker’s March 2014 medical record indicating that 

his vision had improved, or at least was not as bad as other medical records 

indicated. Additionally, defendants’ medical expert testified that based on his 

review of Hacker’s medical history as a whole, he was never legally blind. 

Therefore, a jury considering Hacker’s medical records could reasonably 

conclude that they did not establish a record of impairment that substantially 

limited one or more major life activities. See Cochran v. Holder, 436 F. App’x 

227, 233-34 (4th Cir. 2011) (per curiam) (unpublished) (finding no record of 

impairment when medical history included conflicting records: one indicating 

that plaintiff suffered severe hearing loss, but another indicating that he had 

only lost 10% of his hearing). Thus, the district court did not err in denying 

Hacker’s renewed motion for judgment as a matter of law. And because at least 

some evidence supported the jury’s verdict, we cannot say the district court 

abused its discretion in denying the motion for a new trial. 

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Because we decline to disturb the jury’s verdict that Hacker was not 

disabled within the meaning of the ADA, we need not reach the parties’ 

arguments concerning reasonable accommodations or exhaustion.

B. 

In the alternative, Hacker argues that defendants violated the court’s 

orders in limine and a new trial should be ordered on these grounds. When a 

movant requests a new trial “based on the submission of prejudicial 

information to the jury, the district court must decide whether the error is 

harmless by assessing whether ‘the error did not influence the jury, or had but 

very slight effect.’” Hollybrook Cottonseed Processing, L.L.C. v. Am. Guar. & 

Liab. Ins. Co., 772 F.3d 1031, 1034 (5th Cir. 2014) (quoting O’Rear v. Fruehauf 

Corp., 554 F.2d 1304, 1308 (5th Cir. 1977)). We afford the district court “a great 

deal of discretion in determining whether an objectionable question is so 

prejudicial as to require a retrial” because the district court judge “is in a far 

better position to measure the effect of an improper question on the jury than 

an appellate court which reviews only the cold record.” Id. (quoting O’Rear, 554 

F.2d at 1308).

Hacker argues that defendants violated the orders in limine in three 

ways. First, they referenced the medical care Hacker received in 2011 and 2012

in their opening statement, thus violating the court’s order excluding evidence 

that did not “bear on the issues related to [Hacker’s] cataracts.” Hacker argues 

that Dr. Lavespere also testified about this treatment and defendants 

referenced the treatment in closing, stating: “You heard the whole story, 

beginning in 2011. There were issues going on. The doctors at Angola, 

including Dr. Lavespere, looked at it, tried to find out what was going on.” 

Second, defendants said that “the testimony and the evidence is going to be 

Jason Hacker broke all the rules” in their opening statement. Hacker argues 

that this violated the parties’ agreement that defendants would not reference 

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Hacker’s disciplinary records. Third, defendants began their opening 

statement with “What’s this case about? Well, Jason Hacker is serving a life 

sentence at Angola where he has been since the year—early 2000s,” which 

Hacker argues violated the order in limine prohibiting references to “the 

specific crimes for which [Hacker] was convicted or the conduct which led to 

his conviction.” In addition, Hacker argues that he was prejudiced by defenseexpert Dr. Lavespere’s inflammatory testimony that “to be sent to the field is 

the ultimate slap in the face . . . . You know, some of [the inmates] view it as 

slavery. Some of the black ones in particular view it as slavery.” 

We do not find that the district court abused its discretion by denying 

Hacker’s motion for a new trial. The testimony regarding Hacker’s medical 

history was arguably related to defendants’ efforts to diagnose Hacker’s 

cataracts, thus within the scope of the court’s order, which allowed “[e]vidence 

of medical care given in connection with his cataract condition.” Defendants’

reference to Hacker’s life sentence complied with the letter of the court’s order 

in limine, which only prevented defendants from referencing “the specific 

crimes for which [Hacker] was convicted or the conduct which led to his 

conviction.” And the statement that Hacker “broke all the rules” was made 

while discussing Hacker’s counsel’s opening statement that Hacker had “kept 

on the straight and arrow [sic].” To the extent the statement can be interpreted 

to refer to Hacker’s disciplinary record, the reference was vague, and it is 

unlikely that a juror would recognize it was in connection to any disciplinary 

infraction. 

More importantly, even if these statements violated the court’s orders in 

limine, Hacker has not shown that he was prejudiced by these violations other 

than arguing that the jury returned a verdict against him. But the references 

were brief and vague, and defendants did not submit any other evidence on 

these topics. Hacker analogizes his case to Hollybrook, but the Hollybrook

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plaintiff was able to draw a connection between the defendant’s conduct and 

the prejudice suffered. There, the defendant elicited testimony that the 

plaintiff had made a settlement demand for $750,000. Hollybrook, 772 F.3d at 

1033. The testimony was elicited on the next-to-last day of an eleven-day trial, 

and the jury awarded the plaintiff $1,750,000 in damages—well below the 

damages the plaintiff claimed it had suffered. Id. The district court granted a 

new trial, at which the plaintiff ultimately won a $6 million award. Id. On 

appeal, we affirmed the district court’s order granting the new trial because 

there was “no discernable basis” for the jury’s initial award and it seemed that 

the jurors had simply added $1 million to the settlement demand. Id. at 1034. 

Further, the defendant could not offer another explanation for how the jury 

arrived at its verdict. Id. In contrast, as described above, the jury’s verdict in 

this case was reasonable and supported by evidence. 

Likewise, there is no evidence that Hacker—a white man—was 

prejudiced by Dr. Lavespere’s inflammatory racial statements. Although 

Hacker cites United States v. Sanchez, 482 F.2d 5 (5th Cir. 1973), in which we

reversed a defendant’s conviction when the prosecutor’s argument was “replete 

with racial and political undertones,” the racially inflammatory comments in

Sanchez were directed at the defendant. Id. at 8. Hacker provides no 

explanation for why the objectionable behavior of an opposing party’s witness 

would prejudice his own case when not directed at him. It was also within the 

district court’s discretion to avoid instructing the jury to ignore this testimony 

to avoid drawing further attention to it. Cf. Caldarera v. E. Airlines, Inc., 705 

F.2d 778, 782 (5th Cir. 1983) (“The trial court may exercise judgment on the 

basis of his own opinion of the effect the evidence will have, considering the 

courtroom surroundings.”).

Therefore, we conclude that the district court did not abuse its discretion 

in denying Hacker’s motion for a new trial.

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IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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