Brown v. Barnhill

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11364
Summary Calendar
DOUGLAS BROWN,
Plaintiff-Appellant,
versus
CLIFFORD BARNHILL, ETC.; ET AL.,
Defendants,
LAWRENCE PATTISON, Sergeant; THEODORE PEACOCK, Correctional
Officer,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(2:01-CV-411)
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Douglas Brown, Texas prisoner # 346314,
appeals the district court’s judgment entered in favor of
Defendants-Appellees Lawrence Pattison and Theodore Peacock,
following a jury trial. Brown’s 42 U.S.C. § 1983 claims were based
on allegations that the two defendants acted with deliberate
indifference by failing to protect him from a violent cellmate.
*
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this opinion should not be published and is not precedent except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.
In his appellate brief, Brown does not challenge the district
court’s pre-trial dismissals of his claims against three other
defendants, and he fails to brief an argument that the district
court improperly charged the jury. For the first time in his reply
brief, he contends that the district court abused its discretion by
granting the defendants’ pre-trial motion in limine. Brown has
effectively waived all of these claims by inadequately or untimely
briefing them. See Robinson v. Guarantee Trust Life Ins. Co., 389
F.3d 475, 481 n.3 (5th Cir. 2004); Morin v. Moore, 309 F.3d 316,
328 (5th Cir. 2002); FED. R. APP. P. 28(a)(9).
Brown has also inadequately briefed his contentions that the
district court erred in entering judgment for Pattison and Peacock
because (1) Brown’s affidavit contradicted their testimony, (2) the
facts alleged in his affidavit were “material,” and (3) the
defendants had exercised their peremptory strikes in a racially-
discriminatory manner. See Robinson, 389 F.3d at 481 n.3. In any
event, Brown’s failure to include trial transcripts in the record
on appeal prevents us from reviewing such arguments.
See Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990).
Moreover, the first two of these three arguments reflect
Brown’s confusion about the nature of a jury trial. Inasmuch as
the jury’s verdict was based on the credibility of the trial
witnesses, not its consideration of affidavits, Brown’s argument is
meritless. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
2
Finally, the district court did not abuse its discretion in
denying Brown’s motions for appointment of counsel. See Jackson v.
Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986); Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). As Brown has not
established “exceptional circumstances,” his current motion for
appointment of counsel is DENIED. See Ulmer, 691 F.2d at 212.
And, Brown’s motion to supplement the record with additional
evidentiary materials is unavailing and is therefore DENIED.
See United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir. 1995).
AFFIRMED; MOTIONS DENIED.
3