Nelson Duarte v. United States ( 1995 )

52 F.3d 328
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Nelson DUARTE, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 93-3083.

United States Court of Appeals, Seventh Circuit.

Submitted March 29, 1995.
Decided April 11, 1995.

Before CUMMINGS, EASTERBROOK and RIPPLE, Circuit Judges.

Order

1

Nelson Duarte contends, in this suit under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346, 2671-80, that prison guards lost some of his property. After a bench trial, by consent under 28 U.S.C. Sec. 636(c), the magistrate judge concluded that the guards negligently failed to secure Duarte's property during three days he was in administrative segregation. The judge awarded Duarte $71.99 as the value of the missing property.

2

Duarte believes that he lost more property than the judge believed. But the nature of the property in question is a factual matter, and the judge's findings may be upset only if clearly erroneous, which they are not. There was a direct conflict in testimony, and the judge was entitled to disbelieve Duarte. See Anderson v. Bessemer City, 470 U.S. 564 (1985). He seeks to attack this conclusion indirectly by contending that he was not allowed adequate discovery. The judge denied the request in question as vague and, worse, untimely. Duarte does not deny that he made the request after the discovery deadline had passed, which is a sufficient reason to reject his protest.

3

Finally Duarte contends that he is entitled to attorneys' fees. This is a peculiar request, for Duarte was not represented by counsel and therefore incurred none. The only statute that might support an award, the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d)(1)(A), does not permit awards to non-attorney litigants who appear pro se. See Kay v. Ehrler, 499 U.S. 432 (1991) (discussing 42 U.S.C. Sec. 1988, but providing a rationale applicable to other statutes permitting awards of attorneys' fees).

AFFIRMED

4

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* After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a), Circuit Rule 34(f). No such statement has been filed, so the appeal is submitted for decision on the briefs and record.