Simmons v. Kolodzik ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20578
Summary Calendar
JOHNNY R. SIMMONS,
Plaintiff-Appellant,
versus
D.D. KOLODZIK; VILLARREAL, Deputy;
JOHNNY KLEVENHAGEN; TOMMY THOMAS, Sheriff,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CV-3035
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March 7, 2001
Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Johnny Simmons (Texas prisoner #578087) appeals the district
court’s final judgment, entered after a jury trial, that he take
nothing in his civil rights action brought under 42 U.S.C.
§ 1983. Simmons raises several issues, each of which is either
meritless or waived due to inadequate briefing.
We reject for two reasons Simmons’ contention that he is
entitled to a new trial due to the fact that he was denied a
public trial. First, the record does not indicate that Simmons’
*
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that this opinion should not be published and is not precedent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. 99-20578
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trial was closed to the public. See United States v. Coveney,
995 F.2d 578, 587 (5th Cir. 1993)(stating that this court will
affirm when the record does not establish a basis for reversal).
Second, the two rights relied on by Simmons--the Sixth Amendment
right to a public trial and the First Amendment right of the
press and general public to attend trials--apply to criminal
defendants and criminal trials, respectively, and not to civil
litigants and civil trials. See United States v. Osborne, 68
F.3d 94, 98 & n.4 (5th Cir. 1995); McDonald v. Burrows, 731 F.2d
294, 297 (5th Cir. 1984); Rovinsky v. McKaskle, 722 F.2d 197, 199
& n.3 (5th Cir. 1984).
We likewise reject Simmons’ argument that he was prejudiced
by the presence of extra security in the courtroom. Simmons’
reliance on Holbrook v. Flynn, 475 U.S. 560 (1986) is misplaced.
In Holbrook, the Supreme Court was concerned with a criminal
defendant’s Sixth Amendment right to a fair trial, a right which
is not extended to civil plaintiffs. See 475 U.S. at 562, 567,
570.
Simmons next argues that the district court erred by failing
to subpoena 12 witnesses he requested. This issue is factually
frivolous. The district court ordered subpoenas for those
witnesses whose names and proper addresses had been provided by
Simmons. The court could not subpoena witnesses whose addresses
were unknown.
Simmons also argues that the district court erred in not
granting his motion for default judgment against Deputy
Villarreal. Simmons, however, has not shown that he effected
No. 99-20578
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proper service on Villarreal.1 Without proper service of
process, the district court lacked personal jurisdiction over
Villarreal, and any default judgment against Villarreal would
have been void. See Rogers v. Hartford Life and Accident Ins.
Co., 167 F.3d 933, 940 (5th Cir. 1999).
Simmons next argues that the district court erred in
admitting the fact that he was a convicted felon and that he had
been convicted in a prior criminal trial for assaulting Kolodzik.
Because Simmons stipulated to this information at the outset of
trial, he cannot now be heard to complain about the admission of
that evidence. See King v. Armstrong World Indus., Inc., 906
F.2d 1022, 1024-25 (5th Cir. 1990). Even if Simmons had not made
the stipulation, he still could not show any error because his
prior convictions were admissible under Federal Rule of Evidence
609(a)(1), regardless of any ensuant prejudice to him. See Green
v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989).
Simmons’ single-sentence statement, without citation to any
authority, that the district court abused its discretion and
violated his due-process rights by failing to issue a pretrial
ruling on his motion in limine and his motion to compel
production is not adequately briefed and is therefore waived.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Similarly waived due to inadequate briefing are his arguments
about purported discovery abuses on the part of Kolodzik and the
district court’s failure to sanction Kolodzik for those abuses.
1
Although service of process on Villarreal was attempted
at the Harris County Jail by certified mail, the record indicates
that Villarreal was no longer working there by that point.
No. 99-20578
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Not only does Simmons fail to identify any discovery material
withheld or disclosed late by Kolodzik, he also does not explain
why that material was needed at trial. See Lindsey v. Prive
Corp., 161 F.3d 886, 893 (5th Cir. 1998). Simmons has not
demonstrated that Kolodzik engaged in discovery misconduct or
that the district court abused its discretion in refusing to
sanction Kolodzik.2
Although Simmons maintains that the district court’s jury
instructions were deficient for failing to “explain the criteria
to satisfy the standing requirements,” his argument fails under
the plain-error standard of review. See Russell v. Plano Bank &
Trust, 130 F.3d 715, 719-21 (5th Cir. 1997). He has not shown
error, much less error which is clear under current law. See id.
at 721-22.
Simmons next argues that the district court abused its
discretion when it excluded impeachment evidence regarding the
number of stitches Kolodzik received from their initial
altercation. Simmons’ argument fails, however, because he has
not shown prejudice, especially considering the fact that the
district court allowed Simmons to use a prior affidavit of
Kolodzik’s when questioning him about this discrepancy. See
Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir.
1990)(stating that this court will not overturn evidentiary
2
Simmons’ assertion that the district court refused to
rule on his motion for reconsideration of his original motion to
compel production of documents is flatly contradicted by the
record. The record reflects that the district court denied the
motion.
No. 99-20578
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rulings unless the appellant shows that substantial prejudice
resulted).
Finally, we reject Simmons’ argument that the jury’s verdict
is against the great weight and preponderance of the evidence.
After reviewing the evidence adduced at trial, we conclude that
there is a sufficient evidentiary basis supporting the jury’s
verdict. See Gross v. Black & Decker (U.S.), Inc., 695 F.2d 858,
865 (5th Cir. 1983).
This appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.