Banks v. Lee , 172 F. App'x 621 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 31, 2006
Charles R. Fulbruge III
Clerk
No. 04-30640
Summary Calendar
LEROY BANKS, III
Plaintiff - Appellant
v.
HARRY LEE, Sheriff of Jefferson Parish Correctional Center;
LIEUTENANT WILLIAMS; LEON JAMES, Deputy; UNIDENTIFIED PARTIES;
YAKABA WILLIAMS, Sergeant; MICHAEL BORNE, Deputy; MICHAEL BORNE,
Lieutenant
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:02-CV-3180
--------------------
Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Leroy Banks, III, appearing pro se, appeals following a jury
verdict for the defendants on his excessive force claim under
42 U.S.C. § 1983. We affirm.
Banks argues, under various headings, that the magistrate
judge abused his discretion with respect to his handling of an
incident in which the jury learned of a conversation between
Banks and his witness, Tyrone Boyd, and that the magistrate judge
*
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this opinion should not be published and is not precedent except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. 04-30640
-2-
erred in denying his motion for a new trial, which raised the
issue of this outside influence on the jury. Banks contends that
the magistrate judge was prejudiced against him, that the jury’s
awareness of the conversation caused him prejudice, that the
instructions given by the magistrate judge in an attempt to
remedy the situation were insufficient, that the remedial
instructions given by the magistrate judge were not written and
filed into the record as required by the local rules of the
district court, and that the jury should have been dismissed and
a mistrial declared.
We have carefully reviewed the transcript of the proceedings
that occurred after the incident was brought to the attention of
the magistrate judge. We have determined that the magistrate
judge’s determination that the jury was not improperly tainted
was not clearly erroneous, and that the magistrate judge did not
abuse his discretion in dealing with the possibility of extrinsic
taint on the jury. See United States v. Bernard, 299 F.3d 467,
476 (5th Cir. 2002). Nor did the magistrate judge abuse his
discretion in denying Banks’s motion for a new trial. See Dawson
v. Wal-Mart Stores, Inc., 978 F.2d 205, 208 (5th Cir. 1992).
Banks contends that the defendants’ attorney, Franz
Zibilich, should not have been allowed to represent the
defendants at trial, and should not be permitted to represent
then on appeal, because he was previously an unsuccessful
candidate for judicial office. He argues that Zibilich’s
No. 04-30640
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representation violates ethical provisions. Banks also contends
that Zibilich was improperly allowed to file a notice of
appearance in this court. Banks’s contentions are without merit.
Banks contends that he proved his claims by a preponderance
of the evidence. We liberally construe this portion of Banks’s
brief as a claim that the evidence was insufficient to support
the jury’s verdict in favor of the defendants. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). Because Banks has not provided
a transcript of the trial on the merits, as is his burden, this
court cannot review his claim. See United States v. Hinojosa,
958 F.2d 624, 632 (5th Cir. 1992); FED. R. APP. P. 10(b); FED. R.
APP. P. 11(a).
Banks also moves for hearing en banc. He challenges an
order issued by the Clerk’s Office permitting Zibilich to file a
notice of appearance, and he reiterates his contention that
Zibilich’s representation of the defendants in the district court
and on appeal is improper.
En banc hearings are not favored and generally will not be
ordered unless the proceeding involves a question of exceptional
importance that has not been uniformly determined by this court
or other circuits. See FED. R. APP. P. 35(a), (b)(1). Because
Banks has plainly failed to satisfy the standard for an en banc
hearing, his motion is DENIED. Banks is hereby WARNED that
future abusive requests for en banc hearing or rehearing will
result in sanctions. See 5TH CIR. R. 35.1.
No. 04-30640
-4-
AFFIRMED; MOTION FOR HEARING EN BANC DENIED; SANCTIONS
WARNING ISSUED.