Lyle v. Beard ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40564
Summary Calendar
MATTHEW C. LYLE,
Plaintiff-Appellant,
versus
JOHNNY R. BEARD; RAY JOSAY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-92-CV-274
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February 12, 1998
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Matthew C. Lyle, Texas prisoner # 358476, proceeding pro se
and in forma pauperis (IFP), filed a civil rights lawsuit under
42 U.S.C. § 1983 against Texas Department of Criminal Justice
(TDCJ) Correction Officers Johnny R. Beard and Ray Josay. Lyle
alleged that Beard and Josay violated his constitutional rights
by using excessive force and by filing false disciplinary charges
*
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that this opinion should not be published and is not precedent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. 96-40564
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against him.
After the jury denied Lyle relief, the magistrate judge
certified that Lyle’s appeal would not be taken in good faith.
Lyle now requests leave to proceed IFP on appeal. In doing so,
Lyle challenges the certification that his appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Lyle must show that his appeal presents a nonfrivolous
issue. Carson v. Polly, 689 F.2d 562, 586 (5th Cir. 1982). In
addition, Lyle requests appointment of counsel and preparation of
the transcript at government expense.
Lyle has not challenged the denial of relief on his claim
that Beard and Josay filed false disciplinary charges against
him, and he has not challenged Josay’s dismissal. Accordingly,
these issues are abandoned. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)(issues
not asserted on appeal are abandoned).
Lyle contends that the magistrate judge erred in allowing
the jury to decide the issue of qualified immunity, provided
erroneous instructions to the jury on the issue of qualified
immunity, and erred in allowing the admission of evidence of his
conviction and of his witnesses’ convictions. Lyle also contends
that his appointed attorney provided ineffective assistance of
counsel.
The magistrate judge correctly instructed the jury on
“currently applicable constitutional standards” so that the jury
No. 96-40564
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could make the initial determination whether Lyle established a
constitutional violation. See Rankin v. Klevenhagen, 5 F.3d 103,
105-06 (5th Cir. 1993). The jury found that Lyle had not proven
a constitutional violation and did not reach the qualified
immunity issue. The violation of TDCJ rules or regulations,
without more, does not amount to a constitutional violation and
does not give rise to a § 1983 cause of action. See Hernandez v.
Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). The magistrate
judge did not err in instructing the jury. Lyle has not shown
that the magistrate judge abused his discretion by admitting
evidence of Lyle’s and of his witnesses’ convictions. See Fed.
R. Evid. 609(a)(1); see United States v. Triplett, 922 F.2d 1174,
1180 (5th Cir. 1991). Lyle's contentions relating to ineffective
assistance of counsel are frivolous. See Sanchez v. United
States Postal Service, 785 F.2d 1236, 1237 (5th Cir. 1986)(there
is no Sixth Amendment right to counsel in a civil case; a claim
of ineffective assistance of counsel does not apply in civil
cases).
The magistrate judge correctly determined that Lyle’s appeal
was not taken in good faith. The motion for IFP is DENIED.
Because Lyle has not demonstrated a nonfrivolous issue for
appeal, the appeal is DISMISSED. See Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2.
The motions for a transcript at government expense and for
appointment of counsel are DENIED.
No. 96-40564
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MOTIONS DENIED; APPEAL DISMISSED.