Rabalais v. Martinaze

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60780
Summary Calendar
KENNETH F. RABALAIS,
Plaintiff-Appellant,
versus
DAVID MARTINAZE; THOMAS L. POWELL; JOE MAC,
Sergeant; CORKIE HOEDA; GAIL, Nurse,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:96-CV-97-BrRR
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February 3, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth Rabalais, Mississippi prisoner # 49942, challenges a
judgment in favor of defendants following a nonjury trial on his
in forma pauperis 42 U.S.C. § 1983 lawsuit alleging cruel and
unusual punishment, denial of medical needs, and denial of
various amenities.
Rabalais first argues that he should have received a jury
trial. He did not request a jury trial within ten days of filing
*
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that this opinion should not be published and is not precedent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. 97-60780
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his complaint, so he waived that right. FED. R. CIV. P. 38(b),
(d). After waiver “the court in its discretion upon motion may
order a trial by jury of any or all issues.” FED. R. CIV. P.
39(b). Rabalais has not shown the district court abused its
discretion in denying his tardy motion for a jury trial.
Rabalais challenges the district court’s denial of appointed
counsel. This ruling was not an abuse of discretion because
Rabalais has not shown “exceptional circumstances” warranting the
appointment of counsel in a civil rights lawsuit. Jackson v.
Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986)(citation
and internal quotations omitted).
Rabalais maintains that the trial court erred in denying his
motion to amend the witness and exhibit list. His motion was
made more than three months after the Scheduling Deadline date.
Under MISS UNIF. CT. R. 7.2(K), an untimely motion may be denied
solely for that purpose. Moreover, Rabalais has not shown he was
harmed by the failure to admit the requested witnesses and
exhibits. His contention is without merit.
Rabalais asserts that court officials tampered with his
witnesses to make them testify contrary to the truth. This
allegation was not raised before the district court and runs
counter to his assertions that the magistrate judge’s bias was
not intentional. The issue is facially frivolous.
Rabalais argues that the magistrate judge improperly failed
to give perjury instructions to the witnesses before they
testified, and as a result defense witnesses perjured themselves
on the stand. The issue was not raised in the district court, so
No. 97-60780
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review is for plain error. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996)(en banc). Rabalais’s
only evidence that perjury was committed was that defense witness
testimony conflicted with his own. This is more a challenge to
credibility, which will not be disturbed by an appellate court.
Martin v. Thomas, 973 F.2d 449, 453 n.3 (5th Cir. 1992).
Rabalais asserts that a default judgment should have been
entered against defendant David Martinaze because he never filed
an answer or appeared in the case. Martinaze was never served.
Although Rabalais was given a last known address for Martinaze by
the defense, he did not try to serve Martinaze at that new
address. He has not shown that the court abused its discretion
by failing to enter a default judgment and by dismissing
Rabalais’s claims against Martinaze.
Rabalais contends that the district court erred by failing
to grant him a certificate of probable cause (CPC) and by failing
to rule on his claim of double jeopardy. A CPC is not necessary
in a § 1983 cause of action. To the extent Rabalais’s double-
jeopardy claim was properly before the court, there was no error
in the failure to rule upon it because Rabalais had not shown
that he had exhausted state remedies on this habeas issue. See
Preiser v. Rodriguez, 411 U.S. 475, 484, 488-97 (1973).
Rabalais also asserts that the district court’s judgment
against him was biased and contrary to the evidence presented at
trial. Rabalais has failed to provide a transcript, so the
merits of his assertions cannot be reviewed. See Richardson v.
Henry, 902 F.2d 414, 416 (5th Cir. 1990).
No. 97-60780
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Because Rabalais’s appeal is without arguable merit, it is
frivolous and must be dismissed. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983). This dismissal of a frivolous
appeal constitutes one strike against him for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). If two other district court actions or appeals
filed by Rabalais are dismissed as frivolous, he will be barred
from bringing a civil action or appeal as a prisoner proceeding
in forma pauperis unless he is under imminent danger of serious
physical injury. See § 1915(g). Rabalais should review any
pending complaints or appeals to ensure that they do not raise
frivolous issues.
Rabalais has moved for leave to file an out-of-time reply
brief. This motion is GRANTED.
APPEAL DISMISSED AS FRIVOLOUS. 5TH CIR. R. 42.2. MOTION
GRANTED.