Hogan v. Nobles

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60079
Summary Calendar
BRIAN HOGAN,
Plaintiff-Appellant,
versus
NOBLES, Officer, Police Officer
at Hattiesburg Police Department, ET AL,
Defendants,
NOBLES, Officer, Police Officer
at Hattiesburg Police Department,
Defendant-Appellee.
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BRIAN HOGAN,
Plaintiff-Appellant,
versus
CITY OF HATTIESBURG;
UNKNOWN NOBLES, Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:96-CV-20PG
USDC No. 2:96-CV-31PG
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July 14, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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. 97-60079
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Brian Hogan, Mississippi prisoner # 67383, proceeding pro
se, appeals the judgment in favor of Police Officer Mike Nobles
in Hogan’s civil rights lawsuit, 42 U.S.C. § 1983. Hogan’s
motion for leave to file a supplemental brief is GRANTED.
Appellee’s motion in opposition and motion to strike the reply
brief are DENIED.
Hogan has not challenged in this court the judgment,
dismissing Defendant Police Chief Landers from the case.
Accordingly, Hogan has abandoned that issue. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987)(issues not asserted on appeal are abandoned).
Hogan contends that the magistrate judge erred in denying
his motion for appointment of counsel. A review of the record
indicates that the magistrate judge did not abuse his discretion.
Hogan’s civil rights case did not present “exceptional
circumstances.” Jackson v. Dallas Police Dep't, 811 F.2d 260,
261 (5th Cir. 1986).
Hogan contends that the magistrate judge erred in
determining that Nobles’ version of the facts was correct and in
concluding that the force used by Nobles was reasonable under the
circumstances. Resolving factual disputes and making credibility
determinations are tasks that fall within the province of the
trial court, and this court will not invade that province.
Martin v. Thomas, 973 F.2d 449, 453 n.3 (5th Cir. 1992). The
magistrate judge’s findings of fact are not clearly erroneous.
No. 97-60079
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See Fed. R. Civ. P. 52(a). Further, we have reviewed the record
and the parties’ briefs, and we AFFIRM the decision that the
amount of force used was not unreasonable in light of the
circumstances for essentially the reasons stated by the
magistrate judge. See Hogan v. Nobles, No. 2:96CV20PG cons/w
2:96CV31PG (S.D. Miss. Feb. 5, 1997); see Graham v. Connor, 490
U.S. 386, 396-97 (1989).
Hogan also contends that the defense witnesses committed
perjury and that the magistrate judge should not have considered
his conviction for the armed robbery. Hogan has not sufficiently
briefed these arguments. See Fed. R. App. P. 28(a)(6) (the
argument must contain citations to the record and to legal
authorities); see Price v. Digital Equip. Corp., 846 F.2d 1026,
1028 (5th Cir. 1988) (arguments must be briefed to be preserved
on appeal).
Issues raised by Hogan for the first time in the reply brief
are not considered. See Knighten v. Commissioner, 702 F.2d 59,
60 & n.1 (5th Cir. 1983) (issue may not be raised for the first
time in a reply brief, even by a pro se appellant).
Hogan’s motions to set aside the judgment, for declaratory
judgment, for writ of certiorari, and to strike appellee’s brief
are DENIED.
AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED;
APPELLEE’S MOTION IN OPPOSITION AND TO STRIKE REPLY BRIEF DENIED;
ALL OTHER MOTIONS DENIED.
No. 97-60079
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