Smith v. Becker ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40642
Summary Calendar
RODNEY WAYNE SMITH,
Plaintiff-Appellant,
versus
FRED BECKER; ET AL.,
Defendants,
NORMAN E. MCCLURE; CURTIS B. MCKNIGHT;
NORA SYLVESTOR; WILLIAM VAN HOOK; JOE MOYA,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-92-CV-515
--------------------
July 9, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Rodney Wayne Smith, Texas prisoner # 330699, appeals the
jury’s verdict and the conduct of his trial by the magistrate
judge in this 42 U.S.C. § 1983 civil rights action. Smith argues
that the magistrate judge refused him adequate pretrial
discovery. Smith has not shown what specific discovery was
denied or how he was harmed in presenting his case at trial. 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that this opinion should not be published and is not precedent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.
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record shows that he requested certain documents which the
magistrate judge ordered the defendants to produce, and those
documents were produced. The record reflects that the magistrate
judge did not abuse his discretion in his discovery rulings.
Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990).
Smith argues that the magistrate judge erred in not
appointing him counsel. He has also filed a motion for
appointment of counsel on appeal in this court. There are no
exceptional circumstances in this case. The facts of this case
are not complex. The defendants denied Smith’s claims that he
was searched as Smith described and denied that the disciplinary
charges brought against him were false. Smith demonstrated the
ability to prosecute the case himself through his numerous
clearly-written pleadings in the district court. There is
nothing in the record which suggests that Smith was unable to
inform the jury of his version of events. He offered and had
admitted 18 of his 21 exhibits and cross-examined all witnesses.
The magistrate judge did not abuse its discretion in denying
Smith’s motion for appointment of counsel, and his motion on
appeal IS DENIED. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th
Cir. 1982).
Smith argues that the district court was required to issue
an order clarifying what amount Smith owed, since he was the
prevailing party on the initial appeal of this matter. He argues
that he should not be taxed costs for pursuing a non-frivolous
appeal. The alleged failure of the magistrate judge to issue
such an order regarding Smith’s IFP status in his previous appeal
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is not a matter for consideration by this court now in this
appeal involving the subsequent trial and jury verdict.
Smith argues that the magistrate judge made comments on the
weight of the evidence by suggesting to the jury that he needed
little if any monetary compensation. Smith contends that the
magistrate judge gave the jury the appearance of partiality with
disruptions of Smith’s cross-examination and “suggestions” that
Smith illegally obtained material to make African Medallions.
Smith states that the magistrate judge refused to admit relevant
evidence regarding his institutional grievances and testimony by
another inmate, James Stephens, concerning his stay in transit
status with Smith.
Review of the trial errors alleged by Smith depends on a
trial transcript. Smith has failed to provide a transcript.
Fed. R. App. P. 10(b); Powell v. Estelle, 959 F.2d 22, 26 (5th
Cir. 1992). The record as it stands shows that Smith was
afforded all the opportunities at trial as required under due
process.
As for Smith’s contention that the magistrate judge should
have entered a jury charge regarding malicious prosecution,
malicious prosecution was not a part of the trial. This court,
in remanding this matter, specifically held that the matters left
for consideration were retaliation and the appropriateness of
strip and body-cavity searches.
The nature of Smith’s motion for recusal was a simple
misunderstanding concerning the magistrate judge’s possession of
some documents filed by Smith. This discrepancy was immediately
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corrected by the magistrate judge, and Smith was not prejudiced
at trial. There is no evidence in the record that suggests
partiality by the magistrate judge in this matter. Although
Smith argues that the magistrate judge showed partiality at the
trial, he never alleges that he moved for recusal during the
trial.
Smith argues that the magistrate judge erred in denying his
motion for partial summary judgment on his claims regarding the
strip-body-cavity search and malicious prosecution, which the
defendants did not oppose. Smith’s motion was based on his
contention that he was entitled to a judgment as a matter of law
on the issues of the alleged unconstitutional search and
malicious prosecution. Malicious prosecution was not an issue
before the magistrate judge after this court’s opinion remanding
for further proceedings. As Smith states in his brief, the
defendants’ position was that Smith had never been subjected to a
body cavity search by any of the defendants. Whether the search
occurred at all is a material factual issue requiring a trial.
Smith argues that the credible evidence was insufficient to
support the jury verdict. The jury found that the defendants did
not retaliate against Smith. Smith’s assertions are in the
nature of an attempt to challenge the credibility decisions made
by the jury. This court will not disturb credibility
determinations on appeal. See Williams v. Fab-Con, Inc., 990
F.2d 228, 230 (5th Cir. 1993) (this court defers to the trier of
fact if factual determinations are based upon credibility
determinations). "An appellate court is in no position to weigh
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conflicting evidence and inferences or to determine the
credibility of witnesses; that function is within the province of
the finder of fact." Martin v. Thomas, 973 F.2d 449, 453 n.3
(5th Cir. 1992) (internal quotation and citation omitted).
AFFIRMED; MOTION DENIED.