Lee Marre Johnson v. J. Fortman ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1188
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Lee Marre Johnson, *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
J. Fortman; Chris McElroy; * [UNPUBLISHED]
Milton Weaver, *
*
Appellees, *
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Submitted: October 7, 2002
Filed: October 9, 2002
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Before LOKEN, BYE, and RILEY, Circuit Judges.
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PER CURIAM.
Lee Marre Johnson brought this 42 U.S.C. § 1983 action against West
Memphis, Arkansas police officers J. Fortman, Chris McElroy, and Milton Weaver,
alleging that they had used excessive force in arresting him. The district court1
dismissed Fortman before trial because Johnson had failed to serve him and granted
Weaver judgment as a matter of law at the close of Johnson’s case. The jury returned
a verdict for McElroy. On appeal, Johnson argues that the district court erred in
1
The HONORABLE STEPHEN M. REASONER, United States District Judge
for the Eastern District of Arkansas.
dismissing Fortman, defendants made inconsistent statements at trial, he received
ineffective assistance from his court-appointed attorney, and he was prejudiced by an
all-white jury comprised of eight jurors instead of twelve.
The district court did not abuse its discretion in dismissing Fortman for lack of
service. See Bullock v. United States, 160 F.3d 441, 442 (8th Cir. 1998) (standard
of review). Johnson’s claims regarding witness credibility and the importance of
documentary evidence were for the jury to consider. See Billingsley v. City of
Omaha, 277 F.3d 990, 993 (8th Cir. 2002); United States v. Hill, 249 F.3d 707, 714
(8th Cir. 2001). Eight-member juries are permissible in civil cases. See Fed. R. Civ.
P. 48. Johnson’s complaint about the racial composition of the jury fails to state a
claim, see Batson v. Kentucky, 476 U.S. 79, 85, 96-97 (1986), and he has no
constitutional or statutory right to effective assistance of counsel in this civil case, see
Taylor v. Dickel, 293 F.3d 427, 431 (8th Cir. 2002). Finally, we decline to consider
the arguments raised for the first time in his reply brief. See Neb. State Legislative
Bd., United Transp. Union v. Slater, 245 F.3d 656, 658 n.3 (8th Cir. 2001).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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