Miles v. West

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40718
Summary Calendar
JESSE RAY MILES, JR.,
Plaintiff-Appellant,
versus
ROGER WEST ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:95-CV-90
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July 17, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesse Ray Miles, Jr., TDCJ No. 638526, appeals the dismissal
with prejudice of his 42 U.S.C. § 1983 action following a bench
trial conducted by the magistrate judge. The magistrate judge
did not err by entering a dismissal with prejudice in this action
instead of a dismissal without prejudice. See Baris v. Sulpicio
Lines, Inc., 74 F.3d 567, (5th Cir. 1996). Since Miles received
a bench trial, the magistrate judge obviously construed Miles’
pleadings to state a claim against the defendants.
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-40718
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The magistrate judge did not err by refusing to appoint
counsel for Miles. See Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982). Because Miles participated in the bench trial
without objecting and reminding the magistrate judge of his jury
request, he is barred from raising the issue on appeal. Matter
of Wynn, 889 F.2d 644, 646 (5th Cir. 1989). The defendants did
not violate Miles’ due process rights by placing him into
solitary confinement for two months. See Sandin v. Conner, 115
S. Ct. 2293, 2300 (1995). Miles’ appeal is DISMISSED as
frivolous. See 5th Cir. R. 42.2.
We warn Miles that the filing of future frivolous appeals
will result in sanctions. E.g., Smith v. McCleod, 946 F.2d 417,
418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68, 69 (5th
Cir. 1991). If Miles has any other appeals pending in this court
at this time, he should review them in light of the foregoing
warning and move to withdraw any appeal that is frivolous.
APPEAL DISMISSED; SANCTION WARNING ISSUED.