Bryant v. Callahan

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-10151
Summary Calendar
CLARENCE RANDOLPH BRYANT, also known
as Randy Bryant,
Plaintiff-Appellant,
versus
TOM CALLAHAN; GARY JOHNSON; GERALD GARRETT,
Chairman, Texas Pardon and Parole Board;
CECILIA PRINE, Supervisor, Wichita County
Divisional Parole Office; VICTOR RODRIGUEZ,
Director, Texas Department of Criminal Justice
Parole Division,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CV-15-R
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Clarence Randolph Bryant, Texas prisoner #1060393, appeals
the jury verdict in favor of the defendants in his pro se, in
forma pauperis 42 U.S.C. § 1983 action. Bryant had alleged that
he was improperly confined in the Wichita County Jail 180 days
past the final discharge date on a five and a half year sentence
*
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this opinion should not be published and is not precedent except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. 04-10151
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which was imposed following his conviction for driving while
intoxicated. Bryant’s motion for leave to file a reply brief
out-of-time is GRANTED.
Bryant argues that the evidence was insufficient to support
the jury’s verdict. Bryant failed to move for judgment as a
matter of law prior to or following the entry of the jury verdict
as required by FED. R. CIV. P. 50(a). Accordingly, review is
limited to plain error. United States ex rel. Wallace v.
Flintco, Inc., 143 F.3d 955, 960 (5th Cir. 1998).
Bryant does not show plain error. The jury obviously chose
to believe the defendants’ witnesses that none of the named
defendants were personally involved in Bryant’s continued
confinement. “Personal involvement is an essential element of a
civil rights cause of action.” Thompson v. Steele, 709 F.2d 381,
382 (5th Cir. 1983).
Bryant avers that the trial court’s jury instruction with
regard to recklessness, intention, and omission of conduct was
ambiguous and misleading. Because Bryant made no objection to
the manner in which the court issued the jury charge, the error
was not preserved, and review is for plain error. See FED.
R. CIV. P. 51(c)(1); Hernandez v. Crawford Bldg. Material Co., 321
F.3d 528, 531 (5th Cir. 2003).
The district court’s instructions mirror this Circuit’s
pattern jury instructions. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS
(Civil), § 10.1 (Civil Rights) (West 2004). Unobjected-to use of
No. 04-10151
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pattern jury instruction does not rise to plain error. United
States v. Fotovich, 885 F.2d 241, 242 & n.1 (5th Cir. 1989).
Further, as there was no evidence that the defendants were
personally involved in Bryant’s continued confinement, there is
no reason to believe that the verdict was incorrect. Hernandez,
321 F.3d at 531.
We reject Bryant’s argument that the district court erred in
not granting his motion for a default judgment. Even if it is
assumed that the defendants failed to produce documents, the
district court did not abuse its discretion by choosing not to
enter a default judgment because Bryant has failed to make any
showing of prejudice. Mason & Hanger-Silas Mason Co. v. Metal
Trades Council of Amarillo, Tex. and Vicinity, AFL-CIO, 726 F.2d
166, 168 (5th Cir. 1984).
Bryant avers that he was denied the right to “object” to the
jury verdict. He contends that he was not aware of his right to
object. This argument is conclusional. Bryant fails to state
the basis for any objection to the jury verdict.
We also reject Bryant’s argument that the district court
erred in denying his motion for appointment of counsel. Bryant
fails to identify the exceptional circumstances that would have
justified the appointment of counsel. Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1992). The judgment of the district
court is AFFIRMED.