Lett v. TX Dept Criminal Jus ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40343
Summary Calendar
GARY FRANKLIN LETT
Plaintiff - Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEX JOHNSON,
Individually & in his official capacity as a Correctional
Officer; ARLIS JONES, Individually & in his official
capacity as a Correction Officer; JIMMY JOHNSON,
Individually & in his official capacity as Correctional
Officer Supervisor; DAN LEWIS, Individually & in his
Official Capacity a Correctional Officer or Lieutenant;
THOMAS CORDLE, Individually & in his official capacity as
Correctional Officer
Defendants - Appellees
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:96-CV-578
- - - - - - - - - -
July 25, 2000
Before KING, Chief Judge, and JONES and DEMOSS, Circuit Judges.
PER CURIAM:*
Gary Franklin Lett, Texas prisoner # 663855, appeals a
partial judgment dismissing his 42 U.S.C. § 1983 complaint as
frivolous and for seeking monetary damages against a party who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i) &
(iii). He also appeals the district court’s final judgment from
*
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that this opinion should not be published and is not precedent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. 99-40343
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a jury trial that he take nothing and that his lawsuit be
dismissed. Lett raises the following arguments on appeal:
(1) the district court erred when it failed to evaluate his 42
U.S.C. § 1985 claims; (2) the district court erred because it
failed to evaluate the entire content of his § 1983 complaint;
(3) the district court abused its discretion because it denied
his motion for appointment of counsel; (4) the district court
erred because it granted the defendants’ motion in limine to
exclude reports generated by the Internal Affairs Division
relating to other use of force incidents by the defendants;
(5) the district court abused its discretion when it did not
allow Lett to call Ricky Tarver to testify at trial; (6) defense
counsel submitted a false advisory to the court stating that
psychologist James Cooksey was not employed at the prison and
would not appear voluntarily at trial; (7) the district court
gave erroneous jury instructions; (8) the district court treated
Lett unfairly because he was not able to communicate with his
witnesses in the same capacity as defense counsel; (9) Lett
satisfied the requirements of Heck v. Humphrey, 512 U.S. 477(1994); and (10) the district court erred by allowing defense
counsel to introduce at trial the criminal backgrounds of Lett’s
witnesses.
Lett also filed three motions on appeal. He sought a
general discovery order, which included a request for a copy of
the trial transcript at Government expense. This court granted
his request for a copy of the transcript at Government expense,
but denied the discovery motion in all other respects. Lett’s
No. 99-40343
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motion for appointment of appellate counsel is DENIED. See
Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998). Likewise,
his motion for an “emergency injunction” ordering the defendants
to return his legal papers is DENIED. See Fed. R. App. P. 8(a);
Greene v. Fair, 314 F.2d 200, 202 (5th Cir. 1963)(this court will
grant injunctive relief in the first instance only in exceptional
circumstances); Lindsay v. San Antonio, 821 F.2d 1103, 1107 (5th
Cir. 1987).
Contrary to Lett’s first argument on appeal, in its partial
dismissal the district court addressed his allegation that the
defendants’ conspired to “coverup” the defendants’ alleged
wrongful actions. Lett has failed to demonstrate any other basis
for a § 1985 claim. Lett’s assertion that the district court
failed to evaluate the entire content of his § 1983 complaint is
conclusional and inadequately briefed. See Al-Ra’id v. Ingle, 69
F.3d 28, 33 (5th Cir. 1995).
Lett failed to demonstrate exceptional circumstances that
would have justified the appointment of trial counsel. Thus, the
district court did not abuse its discretion when it denied Lett’s
motion for appointment of counsel. See Wendell, 162 F.3d at 892;
Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). The
district court did not abuse its discretion when it excluded the
reports from the Internal Affairs Division that were unrelated to
Lett’s use of force incident. See Gabriel v. City of Plano, 202
F.3d 741, 744 (5th Cir. 2000). Lett wished to use the reports as
character evidence of past wrongful acts. Character evidence may
not be used merely to prove action in conformity with past bad
No. 99-40343
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acts. See Fed. R. Evid. 404; Moorhead v. Mitsubishi Aircraft
Int’l, Inc., 828 F.2d 278, 287 (5th Cir. 1987). Likewise, the
district court did not abuse its discretion when it excluded
Tarver’s testimony and report as irrelevant. See United States
v. Sanchez, 988 F.2d 1384, 393 (5th Cir. 1993). Lett asserts
that Tarver would have testified that Tex Johnson admitted a
failure to report everything that occurred during the altercation
with Lett. Nevertheless, Tex Johnson admitted during direct
examination that he did not report everything that occurred and
that this led to Lett’s claim being reopened by the Internal
Affairs Division. In light of Johnson’s testimony, Lett has
failed to demonstrate substantial prejudice that resulted from
the exclusion of Tarver’s testimony and report which, according
to Lett’s argument on appeal, would have covered essentially the
same issue. See Gabriel, 202 F.3d at 744.
Lett next asserts that defense counsel erroneously informed
the court that James Cooksey no longer was employed at the Stiles
Unit. He also asserts that he was unable to communicate
adequately with his witnesses. Neither of these assertions
identify any error on the part of the district court and thus
fail to raise an appealable issue. Lett’s assertions that the
district court gave erroneous jury instructions are undeveloped
and unsupported. He fails to demonstrate that the district court
abused its discretion with regard to the challenged instructions.
See McCoy v. Hernandez, 203 F.3d 371, 375 (5th Cir. 2000).
Lett’s conclusional assertion that he somehow satisfied the
requirements of Heck is inadequately briefed. See Al-Ra’id, 69
No. 99-40343
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F.3d at 33.
Finally, the district court did not err when it admitted
testimony on cross-examination indicating that Lett’s witnesses
were convicted felons. The rules of evidence permit the
admission of evidence that a witness has been convicted of a
crime punishable by imprisonment in excess of one year. See Fed.
R. Evid. 609(a)(1); Coursey v. Broadhurst, 888 F.2d 338, 341-42
(5th Cir. 1989). Accordingly, the district court’s judgment is
AFFIRMED.
AFFIRMED; ALL MOTIONS DENIED.