Williams v. Zeller

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40403
Summary Calendar
MICHAEL GLENN WILLIAMS,
Plaintiff-Appellant,
versus
ZELLER, Etc.; ET AL.,
Defendants,
ZELLER, Assistant Warden; ANDERSON, Warden; ROBERT GAMBLE,
Doctor; ECKO, Correctional Officer III; PEREZ, Correctional
Officer III; HEARING, Lieutenant; ALBIAR, Sergeant; JASON
CALHOUN, Doctor; WAYNE SCOTT, Director, Texas Department of
Criminal Division, Institutional Division,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-97-CV-192
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February 1, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Michael Glenn Williams, Texas prisoner # 696404, appeals the
jury’s verdict for the defendants. Williams complains of the
magistrate judge’s denial of his motions for appointment of
counsel. The magistrate judge did not abuse her discretion in
*
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that this opinion should not be published and is not precedent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. 99-40403
-2-
denying appointed counsel. Ulmer v. Chancellor, 691 F.2d 209,
213 (5th Cir. 1982).
Williams argues that he was denied access to courts to
prepare his defense due to inability to maintain his legal
materials on his unit. The record shows that the magistrate
judge ordered the warden to allow Williams to have all materials
he needed to prepare for trial and that the warden informed the
magistrate judge that all of Williams’ property had been returned
to him.
Williams argues that the magistrate judge’s instructions to
the jury were improper and that there was improper jury
selection. The jury instruction and jury selection issues relate
to the actual conduct of the trial for which a transcript is
necessary to review. Williams moved for a trial transcript at
government expense in the district court, which the magistrate
judge denied, but he did not reurge this motion on appeal after
being informed of the necessity of a motion in this court by the
Clerk’s Office. This court does not consider the merits of the
issue when the appellant fails to provide a transcript. Powell
v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992).
Williams complains of perjured testimony by several defense
witnesses. The jury found that the defendants did not use
excessive force and were not deliberately indifferent to his
serious medical needs. Williams’ arguments are an attempt to
challenge the credibility decisions made by the jury. This court
will not disturb credibility determinations on appeal. See
Williams v. Fab-Con, Inc., 990 F.2d 228, 230 (5th Cir. 1993).
No. 99-40403
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Williams has made no argument on appeal regarding the
magistrate judge’s grant of summary judgment as to the other
defendants and so has waived any issues relating to the dismissal
of those claims. See Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993).
Williams’ appeal is without arguable merit and is frivolous.
Accordingly, the appeal is DISMISSED. 5TH CIR. R. 42.2. The
dismissal of this appeal as frivolous counts as a “strike” for
purposes of 28 U.S.C. § 1915(g). We caution Williams that once
he accumulates three strikes, he may not proceed in forma
pauperis (IFP) in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED; WARNING ISSUED.