* Pursuant to 5 TH C IR . 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 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40106

Summary Calendar

KENNETH GREGORY THOMPSON, JR.,

Plaintiff-Appellant,

versus

ZEHRA PEERBOY, Unit Psychiatrist, ET AL.,

Defendants,

ZEHRA PEERBOY, Unit Psychiatrist; HENRY

ORLOFF, Unit Psychologist; UNIDENTIFIED

PARTIES, Correctional Officers,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

(6:95-CV-212)

October 27, 1997

Before POLITZ, Chief Judge, JOLLY and STEWART, Circuit Judges.

POLITZ, Chief Judge: *1 Spears v. McCotter , 766 F.2d 179 (5th Cir. 1985).

2 Kenneth Gregory Thompson, Jr., pro se , appeals an adverse jury verdict

rejecting his 42 U.S.C. § 1983 civil rights claims against Zehra Peerboy and Henry

Orloff. For the reasons assigned, we affirm.

BACKGROUND

Thompson, a Texas state prisoner, filed a civil rights complaint against unit

psychiatrist Peerbo y, unit physician Verlyn Michael Miller, unit psychologists

Orloff, Jean P. McCo wn, and Joe Simental, and unknown correctional officials.

T hompson alleged that Miller discontinued medications, removed work restrictions,

and had him transferred to another unit because of his rac e and legal activities.

Thompso n claimed that after he was transferred McCown prepared a false

psychologi cal report because of his race, and Peerboy, Orloff, Simental and

unknown corre ctional officers were deliberately indifferent to his medical needs

and retaliated against him for his legal ac tivities by discontinuing his single-cell

housing status.

Following a Spears 1 hearing, the magistrate judge, trying the matter by

consent, dismissed Thompson’s claims against McCown and Simental as frivolous

and transferred the claims against Miller to the district in which the claims arose.

After a trial on the merits, the jury returned a ve rdict in favor of the remaining2 Cupit v. Jones , 835 F.2d 82 (5th Cir. 1987).

3 d efendants, Peerboy and Orloff. The magistrate judge entered judgment in

accordance with the jury verdict and Thompson timely appealed.

ANALYSIS

Thompson claims that the magistrate judge erred in refusing to subpoena all

of his requested witnesses. The magistrate judge subpoenaed seven witnesses, but

denied the request for 13 additional witnesses, finding that their testimony would

be irrelevant, cumulative, or inadmissible hearsay. Such a determination is left to

the discretion of the trial court and will not be disturbed absent a substantial

showing of need for the testimony of the requested witnesses. 2 Thompson asserts

that the excluded witnesses would have testified to his mental state, the health care

he received, the problems he experienced while double-celled, the handling of his

grievances, and that he was retaliated a gainst because of his race. The record

reflects, however, that witnesses testified at trial about Thompson’s mental state,

health care, grievances, and problems while double-celled. The only allegations of

retaliation based on race were made against McCown and Miller and these claims

were dismissed and transferred , respectively. Because Thompson has failed to

demonstrate that any relevant testimony was excluded or that the expected

testimony of the particular witnesses would be anything more than cumulative or3 Goodman v. Lee , 78 F.3d 1007 (5th Cir. 1996).

4 Id. at 1011.

5 Spears v. McCotter , 766 F.2d 179 (5th Cir. 1985).

4 for impeachment, we must conclude that the magistrate judge did not abuse her

discretion in denying Thompson’s requests to subpoena witnesses.

Thompson also contends that the trial court erred by failing to instruct and

submit interrogatories to the jury on racial discrimina tion. Thompson further

asserts that the instruction and submission of interrogatories to the jury on qualified

immunity were erroneous. Thompson concedes, however, that he failed to object

to the jury instructions and interrogatories during the trial. Thus we must review

Thompson’s contentions on appeal under the plain error standard. 3 In reviewing

for plain error, we are to determine whether the charge and interrogatories were

“likely res ponsible for an incorrect verdict which in itself creates a substantial

injustice or resulted in a plain error so fundamental as to result in a miscarriage of

justice.” 4

In his complaint, Thompson alleged retaliation b ased on race as his third

cause of action. The allegations cited to support this cause of action consisted of

incidents involving Miller and McCown. As noted, following a S pears 5 hearing the

magistrate judge dismissed the claims against McCown a s frivolous and transferred6 Guillory v. Domtar Indus. Inc. , 95 F.3d 1320 (5th Cir. 1996).

5 the claims against Miller. As to the remaining defendants, Peerboy and Orloff, the

magistrate judge defined the clai ms as deliberate indifference to Thompson’s

medical needs and retaliation for legal activities, not race, and the evidence was

limited to such. Our review of the record leads us inexorably to the conclusion that

the refusal to submit the issue of racial discrimination to the jur y was not

erroneous.

Thompson’s cl aim that the trial court erred in submitting the issue of

qualified immunity to the jury is equally without merit. The jury did not render a

liability verdict for Thompson and, thus, t he qualified immunity interrogatory

remained unanswered. Therefore, Thompson necessarily has failed to demonstrate

how the jury instruction and inte rrogatory on qualified immunity affected the

outcome of the case.

Thompson also contends that the trial court erred by excluding evidence that

he was placed in si ngle-cell housing after filing suit as being inadmissible as a

subsequent remedial measure. The trial court is given wide discretion in making

evidentiary rulings. We review same for manifest error. 6 Evidence of subsequent

remedial measu res is inadmissible as evidence of a party’s negligence, but is7 Fed. R. Evid. 407.

8 Coughlin v. Capitol Cement Co. , 571 F.2d 290, 297 (5th Cir. 1978).

9 Martin v. Thomas , 973 F.2d 449 (5th Cir. 1992).

6 permitted for impeachment purposes. 7 Although Thompson maintains on appeal

that evidence about his placement in single-cell housing after filing suit constitutes

impeachment evidence, the record is clear that he offered the evidence as proof that

he should have been placed in single-cell housing before filing suit. The trial court

did not err in excluding that evidence.

Finally, Thompson asserts that “the jury’s verdict was against the

preponderance of the evidence.” This essentially is a challenge to the sufficiency

of the evidence. Because Thompson failed to move for judgment as a matter of law

or new trial in the district court, our review is limited to “whether there was any

evidence to support the jury’s verdict, irrespective of its sufficiency , or whether

plain error was committed which, if not noticed, would resu lt in a ‘manifest

miscarriage of ju stice.’” 8 Considering the record in light of this demanding

standard, and giving due deference to the jury’s function in weighing conflicting

evidence and determining the witnesses’ credibility, 9 the evidence submitted as to

Thompson’s claims falls far short of requirin g that the verdict be set aside on an

insufficiency of the evidence basis.7

The judgment appealed is AFFIRMED

.