IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40730

Summary Calendar

RANDY ARGO,

Plaintiff - Appellee

v.

OFFICER WOODS,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:07-CV-488

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:

*

Officer Herman Woods appeals a $500 jury award for use of excessive

force. For the following reasons, we affirm.

I. BACKGROUND

Randy Argo sued Brazoria County, Sheriff Charles Wagner, and Officers

Jerry Fortenberry and Herman Woods for excessive force and wrongful arrest

under 42 U.S.C. § 1983, alleging that he was deprived of “life, liberty, or

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2010

Lyle W. Cayce

Clerk

 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.

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property, without due process of law and or equal protection of the laws [sic] as

guaranteed by the Fifth and Fourteenth Amendments.” Argo also alleged that

“defendants deprived him of his rights, privileges and immunities provided by

the First Amendment.” More specifically, Argo claimed that Fortenberry and

Woods, who were dispatched to his residence to investigate a nuisance complaint

grabbed him by the throat, threw him off his porch and arrested him without

probable cause.

The defendants filed a Rule 12(b)(6) motion to dismiss for failure to state

a claim or alternatively, for a more definite statement. The district court

converted their motion to dismiss to a motion for summary judgment under

Federal Rule of Civil Procedure 56. It granted summary judgment in favor of all

the defendants as to Argo’s First, Fifth, and Fourteenth Amendment claims and

dismissed Wagner and Brazoria County from the lawsuit. Although Argo

specifically pleaded “unlawful arrest, unlawful restraint, official oppression, and/

or outrageous police misconduct” under the Fifth and Fourteenth Amendments,

the district court denied summary judgment to Fortenberry and Woods as to

Argo’s excessive use of force and false arrest claims holding that “when

malicious force is used by officers for no apparent law enforcement related

purpose, it may form the basis of a Fourth Amendment violation.”

Almost three months after the deadline for filing dispositive motions and

five days before trial, Fortenberry and Woods moved for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c). In their Rule 12(c)

motion they argued that because Argo never alleged a Fourth Amendment cause

of action nor alleged excessive force, he pleaded no constitutional violation and

his case should be dismissed. The district court denied the motion as untimely.

The claims against Fortenberry and Woods were tried before a jury. At the close

of evidence, Fortenberry and Woods moved for judgment as a matter of law

under Federal Rule of Civil Procedure 50(b). The court denied the motion. After

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the parties rested, the district court judge instructed the jury. This included an

instruction on whether the defendants met the two-part test for qualified

immunity. The jury rendered a verdict exonerating Fortenberry, but found that

Woods had used excessive force and awarded Argo $500 in damages. Woods

then filed a renewed motion for judgment as a matter of law under Federal Rule

of Civil Procedure 50(b), arguing that the evidence at trial did not support the

jury’s finding that Woods used excessive force against Argo and that he was

entitled to qualified immunity. The district court denied Woods’s motion.

II. DISCUSSION

On appeal, Woods argues that the district court abused its discretion by

denying his Rule 12(c) motion as untimely. See Jones v. Coleman Co., Inc., 39

F.3d 749, 753–54 (7th Cir. 1994) (holding that magistrate judge did not abuse his

discretion by permitting summary judgment motion after deadline for good

cause, despite district court’s prior denial of motion as untimely under Rule

16(b)); see also 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND PROCEDURE § 1367, at 514 (1990) (stating that judge has discretion to deny

Rule 12(c) motion filed after excessive delay).

To assist in the speedy and efficient resolution of cases, Rule 16(b) requires

the court to enter a scheduling order that limits the time litigants may file

motions. Once set, the scheduling order may only be modified by leave of court

upon a showing of good cause. FED. R. CIV. P. 16(b). The broader language of

Rule 12(c), however, appears to conflict with Rule 16 in that “[a]fter the

pleadings are closed but within such time as not to delay the trial, any party

may move for judgment on the pleadings.” FED. R. CIV. P. 12(c). We have not

directly addressed this apparent conflict, but the court finds Riggins v. Walter,

279 F.3d 422 (7th Cir. 1995), to be instructive regarding its resolution:

Rule 12(c) does not restrict the court’s discretion under Rule 16(b).

Just as we have applied Rule 16(b) to a motion pursuant to Rule 56,

which states that the motion may be brought “at any time” after

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certain criteria are met, . . . a Rule 12(c) motion may be brought

after the dispositive motions deadline if the moving party complies

with the requirements of Rule 16(b) and if it will not delay trial.

Id. at 427–28.

Here, Woods never requested leave to amend the scheduling order

deadlines for dispositive motions. Even if we were to construe his Rule 12(c)

motion as one requesting leave to amend the scheduling order, Woods fails to

give any reason how he meets Rule 16’s fairly stringent “good cause” standard

which requires him to give a persuasive reason why the dates originally set by

the scheduling order for the filing of dispositive motions could not “reasonably

be met despite the diligence of the party seeking the extension.” FED. R. CIV. P.

16(b) advisory committee’s note (1983); see also Sea-Land Services, Inc. v. D.I.C.,

Inc., 102 F.R.D. 252, 253–54 (S.D. Tex. 1984) (denying defendant’s Rule 12(c)

motion filed seven months after motion cut-off date because “[t]he Defendant

offers the court no explanation or showing of ‘good cause’ why on the eve of trial

the motion should be considered.”). Since Woods has failed to offer any reason

why he could not have filed his motion before the deadline, we affirm the district

court’s denial of the motion.

Next, Woods contends that the district court erred by failing to grant his

motion for judgment as a matter of law under Federal Rule of Civil Procedure

50(b) because the evidence at trial was insufficient to support the jury’s finding

that Woods used excessive force against Argo. In considering a Rule 50(b)

motion for judgment as a matter of law following a jury verdict, the court must

be “especially deferential” to the jury’s findings. Brown v. Bryan County, OK,

219 F.3d 450, 456 (5th Cir. 2000). This court’s standard for evaluating a Rule

50(b) motion for judgment as a matter of law following a jury verdict is whether

“the state of proof is such that reasonable and impartial minds could reach the

conclusion the jury expressed in its verdict.” Am. Home Assur. Co. v. United

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Space Alliance, 378 F.3d 482, 487 (5th Cir. 2004). A jury verdict must stand

unless there is lack of substantial evidence, viewed in the light most favorable

to the successful party, to support the jury’s factual findings, or the legal

conclusions implied from the jury’s verdict cannot, in law, be supported by those

findings. Id.

To establish an excessive use of force claim, a plaintiff must demonstrate

“(1) an injury (2) which resulted directly and only from the use of force that was

excessive to the need and (3) the force used was objectively unreasonable.” Glenn

v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). Further, the “injury must be

more than a de minimis injury and must be evaluated in the context in which

the force was deployed.” Id.

Our review of the trial transcript indicates that during the trial there was

evidence presented to the jury that Woods caused physical injury to Argo that

required a doctor’s visit; that the force Woods’s applied to Argo was clearly

excessive as applied to the need Argo’s actions presented; and that Woods’s

actions were clearly unreasonable. This evidence was more than sufficient to

support the jury’s $500 excessive force verdict against Woods and as a result the

district court did not err when it denied Woods’s Rule 50(b) motion.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment in its

entirety.

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