Ayala v. Alford

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40336 Conference Calendar

ARNOLD AYALA,

Plaintiff-Appellant,

versus

SHEILA R. ALFORD ET AL., Defendants,

MICHAEL J. MCCAULEY,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:94-CV-172 - - - - - - - - - - October 23, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Arnold Ayala, #440313, filed a pro se, in forma pauperis

complaint under 42 U.S.C. § 1983 alleging that excessive force

had been used against him by corrections officers. Following a

bench trial, the magistrate judge concluded that the use of force

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-40336 - 2 -

was appropriate and dismissed Ayala’s complaint with prejudice.

If the factfinder's account of the evidence is plausible,

this court may not reverse it; if two views of the evidence are

permissible, "the factfinder's choice between them cannot be

clearly erroneous." Anderson v. City of Bessemer City, 470 U.S.

564, 573-74 (1985). This court will not disturb credibility

determinations on appeal. See Williams v. Fab-Con, Inc., 990

F.2d 228, 230 (5th Cir. 1993) (this court defers to the district

court if factual determinations are based upon credibility

determinations). Ayala has not demonstrated that the magistrate

judge’s findings of fact were clearly erroneous. See Odom v.

Frank, 3 F.3d 839, 843 (5th Cir. 1993). The magistrate judge did

not err by dismissing Ayala’s complaint.

AFFIRMED.