* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 12/20/96

FOR THE TENTH CIRCUIT

ROBERT HICKS,

Plaintiff-Appellant,

v.

DOUG NICHOLS, Creek County

Sheriff,

Defendant-Appellee,

and

CREEK COUNTY BOARD OF

COUNTY COMMISSIONERS;

GEORGE ELLIOTT, Deputy Sheriff;

RON POWERS, Deputy Sheriff;

OTHER UNKNOWN DEPUTIES of

the Creek County Sheriff’s Office,

Defendants.

No. 95-5126

(D.C. No. 93-C-549-K)

(N.D. Okla.)

ORDER AND JUDGMENT*
** Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of

Appeals for the Ninth Circuit, sitting by designation. 

1 At the time of trial, all other claims had been decided.

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Before PORFILIO, ALARCON,** and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff commenced a civil rights action pursuant to 42 U.S.C. § 1983

alleging, among other things, excessive force to effect his arrest. After the jury

returned a verdict in favor of defendant Doug Nichols,1 plaintiff moved for postjudgment relief, requesting both judgment as a matter of law pursuant to

Fed. R. Civ. P. 50 and a new trial pursuant to Fed. R. Civ. P. 59. The district

court denied relief, and this appeal followed. We have jurisdiction over this

timely appeal under 28 U.S.C. § 1291. 

On appeal, plaintiff argues the district court erred in failing to grant postjudgment relief because the jury’s verdict was contrary to the evidence. The

district court denied judgment as a matter of law after determining the evidence

presented to the jury was conflicting and a reasonable inference was possible that
-3-

excessive force either was or was not used. The district court denied a new trial

because the verdict was not clearly, decidedly, or overwhelming against the

weight of the evidence. 

We review the denial of a motion for judgment as a matter of law de novo,

construing evidence and inferences in favor of the nonmoving party. Doan v.

Seagate Tech., Inc., 82 F.3d 974, 976 (10th Cir. 1996), petition for cert. filed,

65 U.S.L.W. 3342 (U.S. Oct. 15, 1996)(No. 96-625). We review the district

court’s denial of a motion for new trial under an abuse of discretion standard. 

Sheets v. Salt Lake County, 45 F.3d 1383, 1390 (10th Cir.), cert. denied,

116 S. Ct. 74 (1995). “We will reverse the denial of a motion for a new trial only

if the trial court made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Id. at 1390-91 (quotation omitted). 

Under Fed. R. App. P. 10(a) and (b)(2), an appellant is charged with

providing a sufficient record to review evidentiary findings or conclusions. The

appellant must order and provide all portions of the transcript necessary to give

the court of appeals a complete and accurate record of the proceedings related to

the issue on appeal. King v. Unocal Corp., 58 F.3d 586, 587 (10th Cir.

1995)(citing 10th Cir. R. 10.1). Contrary to this clear mandate, plaintiff only

ordered and submitted a transcript of the testimony of two witnesses, even though

he also cites to the testimony of another witness and refers to his own testimony
2 The district court’s docket sheet indicates the exhibits were returned to the

parties. 

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and that of yet another witness in his appellate briefs. In addition, plaintiff failed

to present any trial exhibits, despite citing to them.2

 Without a full trial transcript

and the trial exhibits, the evidentiary record here is insufficient to permit

assessment of plaintiff’s claims of error, and we therefore must affirm. See

McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th Cir. 1992)(stressing

importance and mandatory nature of court rules governing provision and use of

transcripts); Deines v. Vermeer Mfg. Co., 969 F.2d 977, 979-80 (10th Cir. 1992);

see also LaFollette v. Savage, 63 F.3d 540, 544-45, 546 n.3 (7th Cir.)(where

appellant provided only part of trial transcript and no trial exhibits, appellate

court was unable to review denial of motions for judgment as matter of law or

new trial), supplemented, 68 F.3d 156 (7th Cir. 1995); Woods v. Thieret, 5 F.3d

244, 245 (7th Cir. 1993)(court of appeals unable to review denial of motion for

judgment as matter of law without trial transcript). Plaintiff’s pro se status does

not excuse him from complying with the applicable rules. See Ogden v. San Juan

County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 115 S. Ct. 750 (1995);

Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). 
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The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. The mandate shall issue forthwith. 

Entered for the Court

Arthur L. Alarcon

Circuit Judge