IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60943

Summary Calendar

JAMES C. WINDING,

Plaintiff-Appellant

v.

BART GRIMES, Individually and in his official capacity; CARMELITA

NAYLOR; CAPTAIN DERECK SMITH; LIEUTENANT RICE,

Defendants-Appellees

JAMES C. WINDING,

Plaintiff-Appellant

v.

RON WILLIAMS, Individually and in his official capacity; E.L. SPARKMAN,

Individually and in his official capacity; JOYCE GRAHAM; GEO

ENTERPRISES, INC.; THE GEO GROUP, INC.,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:09-CV-11

USDC No. 4:09-CV-58

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

December 27, 2010

Lyle W. Cayce

Clerk

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No. 09-60943

PER CURIAM:

*

James C. Winding, Mississippi prisoner # K8115, appeals the magistrate

judge’s denial of his motion for judgment as a matter of law and his motion for

a new trial with a jury, which challenged the magistrate judge’s dismissal of his

42 U.S.C. § 1983 complaint. Winding argues that the magistrate judge’s denial

of his motion for a judgment as a matter of law was not supported by the facts

or law. He contends that he can prove that the defendants acted with deliberate

indifference because they knew that Winding was housed with an inmate with

a violent history and failed to take steps to protect him from harm.

Winding’s postjudgment Federal Rule Civil Procedure 59(e) motion merely

disputed the magistrate judge’s factual findings and legal conclusions based on

the evidence presented at his trial. Rule 59(e) cannot be used to rehash the

evidence or make arguments that could have been offered or raised before the

entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir.

2004). Windings’s assertions in his motion did not demonstrate any grounds for

relief under Rule 59(e), such as a manifest error of law or fact or the discovery

of new evidence. See Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir.

1989). The district court did not abuse its discretion in denying the

postjudgment motion because Winding did not raise any challenges entitling him

to relief under Rule 59(e).

Further, Winding’s challenge to the magistrate judge’s denial of his

request to reconsider his findings of fact and conclusion of law require this court

to review a transcript of the trial. Winding’s failure to provide a transcript may

be the basis for the dismissal of the entire appeal. See FED. R. APP. P. 3(a)(2);

FED. R. APP. P. 10(b)(2); Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990).

 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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Windings’s pro se and in forma pauperis status does not preclude consideration

of his initial representation to the court that he did not require a transcript to

pursue his appeal nor excuse his failure to seek the transcript from this court

until after filing his brief. See Alizadeh v. Safeways Stores, Inc., 910 F.2d 234,

237 (5th Cir. 1990) The lack of a transcript is an additional consideration in

dismissing this appeal as frivolous.

Winding argues that the magistrate judge erred in denying his

postjudgment motion for a new jury trial. Winding expressly waived his Federal

Rule Civil Procedure 38 right to a jury trial and did not move prior to trial to

withdraw the waiver pursuant to Federal Rule Civil Procedure 39. The district

court did not abuse its discretion in denying Winding’s request for a jury trial

made in a postjudgment motion. See Daniel Intern. Corp. v. Fischback & Moore,

Inc., 916 F.2d 1061, 1064 (5th Cir. 1990).

Winding has failed to raise issues of arguable merit. His appeal is

dismissed as frivolous. See 5TH CIR. R. 42.2. The dismissal of this appeal as

frivolous counts as a strike for purposes of the IFP provisions of 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).

Winding is cautioned that once he accumulates three strikes, he may not proceed

IFP in any civil action or appeal filed while he is incarcerated or detained in any

facility unless he is under imminent danger of serious physical injury. See

§ 1915(g). The court notes that the recent dismissal as frivolous of Winding’s

appeal in Winding v. The Geo Group, Inc., No. 09-60693 constituted another

strike under § 1915(g) strike against him.

Winding has filed a motion for appointment of counsel, arguing that he is

without funds to investigate his claims and that he does not have the skills and

knowledge to proceed with his case. The court may appoint counsel in a § 1983

case upon a showing of exceptional circumstances. Ulmer v. Chancellor, 691

F.2d 209, 212 (5th Cir. 1982). Winding has not made a showing of exceptional

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circumstances warranting the appointment of counsel. The motion for

appointment of counsel is denied.

Winding has also filed a motion to strike the appellees’ briefs because the

defendants did not file a response to his motion for judgment as a matter of law

and his motion for new trial filed in the district court. Winding has not shown

any valid legal basis for the court to strike the appellees’ briefs. The motion is

denied.

APPEAL DISMISSED; MOTIONS DENIED; SANCTION WARNING

ISSUED.

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