Moore v. Butler ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20267
Summary Calendar
ANTHONY MOORE, JR.,
Plaintiff-Appellant,
versus
ANTHONY BUTLER; RANDALL P. MEDLEY;
CARL D. VEST; HORACE W. FREZIA;
CRAIG BARROW,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-1552
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June 11, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Anthony Moore, Jr., Texas inmate # 517882, appeals from
the entry of a final judgment in favor of defendants Anthony
Butler, Carl D. Vest, and Craig Barrow following a jury trial on
his excessive-force claims under 42 U.S.C. § 1983. Moore contends
that (1) the district court erred by not appointing counsel; (2) he
did not receive adequate notice of his trial date; (3) the district
*
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opinion should not be published and is not precedent except under the limited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. 01-20267
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court erred under FED. R. EVID. 404(b) by refusing to admit evidence
of the use of excessive force by defendant Butler in a separate
incident; (4) the defendants violated Brady v. Maryland, 373 U.S.
83 (1963); (5) the district court erred by not giving certain jury
instructions; (6) the trial court and the defendants improperly
refused to subpoena witnesses Teresa Lanoue and Michael Parrish;
(7) the district judge should have recused herself; and (8) the
defendants and their witnesses committed perjury.
We turn first to Moore’s arguments asserting pre-trial
error. Moore has not shown that his case involved “exceptional
circumstances” such that he was entitled to appointment of counsel.
See Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998). Moore’s
argument that the district court failed to provide notice of his
trial is refuted by the record, which shows that Moore was advised
of his trial date in a conference conducted on November 7, 2000.
As Brady has no application in the context of a civil rights case,
we construe Moore’s brief as arguing that the defendants violated
the Federal Rules of Civil Procedure or the orders of the district
court with respect to discovery. Our review of the record uncovers
no such violation.
Moore has not shown that he requested that a subpoena be
issued to Lanoue. There is no requirement that a trial court issue
a subpoena absent a showing that the plaintiff requested its
issuance. See Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.
1988). Moore has not shown that the district court abused its
No. 01-20267
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discretion by refusing his eleventh-hour request to subpoena
Parrish, as Moore has not demonstrated that “any relevant testimony
was excluded” by Parrish’s absence, and has not “demonstrated a
substantial showing of need” for his testimony. See Cupit v.
Jones, 835 F.2d 82, 86-87 (5th Cir. 1987).
We next turn to Moore’s assertions of trial error. In
order to admit evidence under Rule 404(b), the district court must
determine both that (1) the evidence is relative to an issue other
than character, and (2) the probative value of the evidence is
substantially outweighed by its undue prejudice and that the
evidence satisfies the other considerations of FED. R. EVID. 403.
See United States v. Elwood, 993 F.2d 1146, 1153 (5th Cir. 1993).
Moore makes no argument that the district court’s determination
that the probative value of the evidence was outweighed by its
undue prejudice and did not meet the other requirements of Rule 403
was an abuse of discretion. Moore has therefore abandoned this
issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
FED. R. APP. P. 28(a)(9). Because Moore made no objection to the
instructions provided to the jury, our review is for plain error.
See Tompkins v. Cyr, 202 F.3d 770, 783 (5th Cir. 2000). Moore has
failed to show that the district court committed any error, plain
or otherwise, with respect to the jury instructions.
Moore has made no showing that recusal of the district
judge was in order. The record in no way causes a “well-informed,
thoughtful and objective observer [to] question the court’s
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impartiality.” Trust Co. of La. v. N.N.P., Inc., 104 F.3d 1478,
1491 (5th Cir. 1997). In order to obtain relief based on
allegations of perjury, an appellant must present clear and
convincing evidence” of perjury and show that the “perjured
testimony prevented [him] from fully and fairly presenting [his]
case.” Diaz v. Methodist Hosp., 46 F.3d 492, 496-497 (5th Cir.
1995). Moore has failed to make the required showing.
AFFIRMED.