Yarrito v. Page ( 1996 )

Menu:

               IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-40508
Summary Calendar
__________________
MARIO A. YARRITO,
Plaintiff-Appellant,
versus
CHARLIE M. PAGE, Correctional Officer,
JERRY W. HUGHES, Correctional Officer,
TERRY W. FAGAN, Correctional Officer,
CARL E. LUCAS, JR., Correctional Officer,
JEFFREY A. COOK, Correctional Officer,
SANDY R. JOHNSON, Sergeant,
DAVID E. KERSH, Sergeant,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:94-CV-8
- - - - - - - - - -
January 15, 1996
Before REAVLEY, SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Texas prisoner Mario A. Yarrito appeals the dismissal of his
civil rights complaint following an evidentiary hearing before a
magistrate judge conducted pursuant to Flowers v. Phelps,

956 F.2d 488

(5th Cir.), modified in part on other grounds,

964 F.2d 400

(5th Cir. 1992).     Yarrito contends that the district court
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
erred in finding that defendants did not use excessive force or
retaliate against him; that it erred in finding defendants immune
from suit; that it denied him adequate discovery; that it erred
in declining to subpoena two eyewitnesses to testify; and that
the absence of three of the defendants from his evidentiary
hearing violated his Sixth Amendment rights to confrontation and
cross-examination.   We affirm.
Yarrito claims that he was subjected to a beating by seven
prison officers in retaliation for or to dissuade him from filing
any more grievances.   Yarrito and witnesses who testified on his
behalf at the hearing gave an account of the incident that was
very different from the account given by defendants.   The
magistrate, with an opportunity to weigh the credibility of the
witnesses, made numerous fact findings.   Among these findings,
the magistrate concluded that Yarrito initiated a scuffle by
yelling at and attempting to kick defendant Hughes, that
defendants Page and Hughes then placed Yarrito on the floor and
put leg irons on him in order to subdue him, that Yarrito
suffered a scratch on his forehead, that four of the defendants
were not involved in the incident in any way, and that the other
three did not retaliate against Yarrito in any way.
Where, as here, the district court has reviewed and adopted
the fact findings of the magistrate, our review of those findings
on appeal is limited to whether the findings are clearly
erroneous.   E.g. Johnson v. Collins,

964 F.2d 1527

, 1536 (5th
Cir.), cert. denied,

113 S. Ct. 4

(1992); McInerney v. Puckett,
2

919 F.2d 350

, 352 (5th Cir. 1990).      Particularly where essential
fact findings turn on the finder of fact’s credibility
determinations, we are loath to overturn such findings under the
clearly erroneous standard of review.      "`An appellate court is in
no position to weigh conflicting evidence and inferences or to
determine the credibility of witnesses; that function is within
the province of the finder of fact.'"      United States v. Samples,

897 F.2d 193

, 198 (5th Cir. 1990) (citations omitted).      We cannot
say that the magistrate’s fact findings are clearly erroneous.
When considering an excessive-force claim, "the core
judicial inquiry is . . . whether force was applied in a good-
faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm."       Hudson v. McMillian,

112 S. Ct. 995

, 999 (1992).   Given the fact findings of the magistrate, the
magistrate and district court below properly concluded as a
matter of law that Yarrito had not suffered a violation of his
Eighth Amendment rights.   Page and Hughes were justified in using
minimal force against Yarrito to maintain discipline and ensure
that he would not kick them.
Yarrito argues that the court below erred in finding that
the defense of qualified immunity shields defendants from
liability.   Before conducting a qualified immunity analysis, the
court as a threshold matter must first decide whether a violation
of a constitutional right has occurred.      E.g. White v. Taylor,

959 F.2d 539

, 545 n.4 (5th Cir. 1992) (first step in qualified
immunity analysis is “whether the plaintiff has asserted a
3
violation of a constitutional right at all.”); Quives v.
Campbell,

934 F.2d 668

, 670 (5th Cir. 1991).   Since we find no
error in the lower court’s determination that no Eighth Amendment
violation occurred, we need not reach the question of whether
Yarrito’s claim should also fail because defendants are entitled
to qualified immunity.
We also hold that the denial of Yarrito's discovery requests
was not an abuse of discretion, see Richardson v. Henry,

902 F.2d 414

, 417 (5th Cir.), cert. denied,

498 U.S. 901

(1990), and cert.
denied,

498 U.S. 1069

(1991); that the refusal to subpoena
prisoners Silva and Steel to testify was not an abuse of
discretion, see Harvey v. Andrist,

754 F.2d 569

, 572 (5th Cir.),
cert. denied,

471 U.S. 1126

(1985); and that the absence of three
of the defendants from the evidentiary hearing did not violate
Yarrito's Sixth Amendment rights to confrontation and cross-
examination, as those rights do not apply to civil hearings.      See
Woolsey v. National Transp. Safety Bd.,

993 F.2d 516