Hale v. Clayton ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40372
Summary Calendar
HARRIS GENE HALE,
Plaintiff-Appellant,
versus
CHRISTOPHER CLAYTON, Etc., ET AL.,
Defendants,
CHRISTOPHER CLAYTON, officer, Longview Police Department
Individually and in official capacity; RILEY TAYLOR,
Detective, Longview Police Department Individually and in
official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:98-CV-343
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February 7, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
We remanded to the district court the malicious prosecution
claim raised by Harris Gene Hale (TDCJ # 322484) in his 42 U.S.C.
§ 1983 suit. Thereafter, the district court conducted a hearing
consistent with Flowers v. Phelps, 956 F.2d 488, modified in part
*
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that this opinion should not be published and is not precedent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.
No. 00-40372
-2-
on other grounds, 964 F.2d 400 (5th Cir. 1992), and dismissed the
claim.
We do not consider Hale’s contention that the district court
could have exercised its discretion to order a jury trial under
Fed. R. Civ. P. R. 39(b) because it is raised for the first time
in Hale’s reply brief. See Stephens v. C.I.T. Group/Equip. Fin.,
Inc., 955 F.2d 1023, 1026 (5th Cir. 1992). Hale waived his
argument that the district court erred by not issuing a subpoena
for a “core witness” when he indicated to the magistrate judge at
the beginning of the Flowers hearing that he was ready to
proceed, and he voiced no objection to proceeding with the
hearing despite the witness’s absence. See Trustees of Sabine v.
Don Lightfoot Home Builder, Inc., 704 F.2d 822, 828 (5th Cir.
1983). We find no abuse of discretion in the denial of the
motion for the appointment of counsel. See Jackson v. Dallas
Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986); Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). Finally, we
conclude that by not providing this Court with a transcript of
the Flowers hearing, Hale has waived appellate review of his
contention that the district court erred by dismissing his
malicious prosecution claim on its merits. See Fed. R. App. P.
(10)(b)(2); Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992).
The judgment of the district court is AFFIRMED.