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 1995-07

Lawson v. Moore ( 1995 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-60090
Conference Calendar
__________________
JAMES BERNARD LAWSON,
Plaintiff-Appellant,
versus
MIKE MOORE, STATE OF MISSISSIPPI,
DENNIS MOLDER and CHARLES JONES,
Defendants,
CHARLES JONES,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:93-CV-509
- - - - - - - - - -
June 30, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
James Bernard Lawson appeals the dismissal of various habeas
corpus claims and judgment for the defendant in his civil rights
action.   He seeks leave to proceed in forma pauperis (IFP) on
appeal.   For the reasons stated below, his motion for leave to
proceed IFP is hereby DENIED.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-60090
-2-
Lawson first contends that the district court should have
stayed his warrantless-arrest claim rather than dismiss it
without prejudice.    Lawson has no cause of action on his
warrantless-arrest claim until he can show that his conviction
has been invalidated.    Heck v. Humphrey,
    114 S. Ct. 2364
    , 2372
(1994).   Because Lawson has no cause of action, the district
court should not have stayed his claim pending exhaustion.        See
    id. at 2373
    .    The district court properly dismissed his claim
without prejudice so that he could exhaust habeas corpus
remedies.
Lawson contends that the district court erred by failing to
give his instruction regarding punitive damages.     He also
contends that the district court erroneously admitted into
evidence a mugshot of him.
Without a transcript, it is unclear whether Lawson objected
to the challenged instruction at trial.     This court need not
address issues not considered by the district court.     "[I]ssues
raised for the first time on appeal are not reviewable by this
court unless failure to consider them would result in manifest
injustice."    Varnado v. Lynaugh,
    920 F.2d 320
    , 321 (5th Cir.
1991).
The jury found in favor of Jones.      Any error regarding the
district court's instructions regarding damages therefore is
harmless.    See Bunch v. Walter,
    673 F.2d 127
    , 132 (5th Cir.
1982); FED. R. CIV. P. 61.   A fortiori, refusal to consider
Lawson's jury-instruction contention would not work manifest
injustice.    We will not consider the contention.
No. 95-60090
-3-
Lawson explicitly indicated that he wished to proceed on
appeal without the transcript.   It is Lawson's responsibility to
provide this court with a transcript.      See FED. R. APP. P. 10(b).
This Court therefore cannot review Lawson's evidentiary
contention.    Richardson v. Henry,
    902 F.2d 414
    , 416 (5th Cir.),
cert. denied,
    498 U.S. 901
     (1990), and cert. denied,
    498 U.S. 1069
     (1991).
Lawson is warned that he will be sanctioned if he files
frivolous appeals in the future.    See Smith v. McCleod,
    946 F.2d 417
    , 418 (5th Cir. 1991); Jackson v. Carpenter,
    921 F.2d 68
    , 69
(5th Cir. 1991).
DISMISSED.