Foster v. Shaw ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40934
Summary Calendar
LESLIE RAY FOSTER,
Plaintiff-Appellant,
versus
JAMES A. SHAW, JR., ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:93-CV-554
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March 24, 1998
Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Leslie Ray Foster, Texas prisoner #554960, appeals from the
judgment in favor of the defendants in his civil rights complaint
brought pursuant to 42 U.S.C. § 1983. He argues that: 1) the
magistrate judge erred by denying his request for the appointment
of counsel; 2) the defendants violated his Eighth Amendment
rights by using excessive force; 3) the magistrate judge erred by
denying his motion for recusal; and 4) he was entitled to a jury
*
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that this opinion should not be published and is not precedent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. 96-40934
-2-
trial. We have reviewed the record and the briefs of the
parties, and we hold that Foster has shown no reversible error.
Foster has not shown exceptional circumstances requiring the
appointment of counsel in this civil proceeding. See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). He fails to show
that the magistrate judge erred in her determination that
Foster’s excessive-force claim was without merit. See Hudson v.
McMillian, 962 F.2d 522, 523 (5th Cir. 1992). Because the
grounds for recusal Foster asserts are based largely on the
magistrate judge’s adverse rulings, and because none of the
grounds for recusal Foster cites stems from an extra-judicial
source, the magistrate judge did not abuse her discretion by
denying Foster’s motion for recusal. See Liteky v. United
States, 510 U.S. 540, 554-55 (1994). Finally, because Foster
participated in the determination of the issues at his initial
bench trial without objecting and reminding the court of his
original jury request, he is barred from raising the issue on
appeal. See Matter of Wynn, 889 F.2d 644, 646 (5th Cir. 1989).
AFFIRMED.