Lewis v. West ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-60328
Summary Calendar
____________________
ROBERT E. LEWIS,
Plaintiff-Appellant,
versus
CHARLIE WEST, Owner, Mid-Delta Bonding Company; TIMOTHY
TOWNSEND, Police Officer, Cleveland, MS; GILL DENLEY,
Police Officer, Cleveland, MS, also known as John Doe Gill;
CLEVELAND POLICE DEPARTMENT; H. M. “MACK” GRIMMETT, Sheriff,
Bolivar County, MS; CHARLES ANDERSON; BILLY JOE ESTES; LAWRENCE
MELLEN; ROSIE S. SIMMONS, Circuit Clerk, Bolivar County, MS;
KIRK FORDICE; RICHARD COLEMAN; MID-DELTA BONDING COMPANY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(2:97-CV-16-B)
_________________________________________________________________
January 18, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Robert E. Lewis, Mississippi prisoner # 79267, appeals, pro
se, the dismissal of his 42 U.S.C. § 1983 complaint (claimed
extradited improperly from Tennessee, beaten, and denied medical
treatment), pursuant to the defendants’ FED. R. CIV. P. 50 motion
for judgment as a matter of law, made at the non-jury evidentiary
hearing before the magistrate judge. The district court adopted
the magistrate judge’s recommendation in this regard.
*
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this opinion should not be published and is not precedent except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.
Lewis, who did not request a jury trial, contends that the
magistrate judge did not have such hearing-authority, because he
did not so consent under 28 U.S.C. § 636(c). However, as the
district court noted, the magistrate judge had such authority,
pursuant to 28 U.S.C. § 636(b)(1)(B), in conjunction with
submitting a report and recommendation. See McCarthy v. Bronson,
500 U.S. 136, 139 (1991) (noting that statute’s text indicates
“Congress intended to authorize the nonconsensual reference of all
prisoner petitions to a magistrate [judge]”) (emphasis in
original).
Lewis also asserts that the court erred by finding that
defendants West, Townsend, and Denley were not acting under color
of state law when they apprehended him, following his failure to
appear pursuant to the terms of his bail bond. But, Lewis did not
provide on appeal a transcript of the evidentiary hearing, as is
his burden. See United States v. Coveney, 995 F.2d 578, 587 (5th
Cir. 1993); see also FED. R. APP. P. 10(b); FED. R. APP. P. 11(a).
Because Lewis failed to do so, we cannot properly review his claim.
See United States v. Hinojosa, 958 F.2d 624, 632 (5th Cir. 1992).
The other “issues” raised by Lewis in his appellate brief
address the merits of his claim, which the district court did not
reach, pursuant to the adopted report and recommendations.
AFFIRMED
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