Fontenot v. Hutchison

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 2003
• Docket: 01-41506
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 4, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 01-41506 Summary Calendar

MICHAEL P. FONTENOT,

Plaintiff-Appellant,

versus

LURENZA W. HUTCHISON, Correctional Officer III Michael Unit, OLIN C. STATHAM, JR., Sergeant, Michael Unit; GENE R. MARTIN, Captain, Michael Unit; STEVEN, Officer,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:00-CV-156 --------------------

Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Michael P. Fontenot, Texas prisoner # 672107, appeals the

jury verdict in favor of the defendants in his 42 U.S.C. § 1983

suit against correctional officers for a beating he allegedly

received in violation of his civil rights. Fontenot’s initial

brief argued that he was denied due process at his disciplinary

hearing because his counsel substitute did not have time to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41506 -2-

locate and interview witnesses and that his Fourteenth Amendment

rights were violated at trial because no explanation was given

for the unavailability of his witnesses. He also argued that the

district court erred in refusing to find that the beating

violated his rights. He further argued that the district court

should have allowed discovery of the defendants’ employment

history and that he was denied effective assistance of counsel

because he was not given funds for a medical expert or to take

depositions.

After the initial briefs were filed, we granted Fontenot’s

motion for a transcript of the proceedings below at government

expense and permitted Fontenot to file a supplemental brief

addressing issues implicated by the transcript. Although

Fontenot could not cite to the transcript in his original brief,

since then the record has been transcribed and Fontenot has been

afforded the opportunity to raise issues supported by the record.

Fontenot did not include in his supplemental brief any reference

to or support for the issues he raised in his original brief.

Because Fontenot has not adequately briefed the issues he raised

in his original brief, he has waived them. See Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987).

The only issues Fontenot addresses in his supplemental brief

are whether the district court erred in denying his motion in

limine with regard to his numerous disciplinary cases and his and No. 01-41506 -3-

his witness’s convictions. Because Fontenot objected to the

admission of testimony regarding his prior disciplinary

convictions, we review the denial of his motion in limine for

abuse of discretion. See United States v. Haese, 162 F.3d 359,

364 (5th Cir. 1998). However, the district court sustained the

objection, so Fontenot’s argument is meritless.

Fontenot’s attorney questioned him about his conviction,

and, thus, any error was invited by defense counsel. See United

States v. Baytank (Houston), Inc., 934 F.2d 599, 606 (5th Cir.

1991). Even applying plain-error review, the district court did

not commit plain error in the admission of this testimony because

the jury had been told during voir dire by defense counsel about

Fontenot’s conviction. See United States v. Harrington, 82 F.3d

83, 90 (5th Cir. 1996).

Because Fontenot failed to object to the introduction of

testimony that his witness had been convicted, we review the

district court’s admission of this evidence for plain error. See

United States v. Graves, 5 F.3d 1546, 1551 (5th Cir. 1993); FED.

R. EVID. 103(d). The district court did not plainly err in

allowing the defendants’ counsel to question Fontenot’s witness

on cross-examination about his conviction because that evidence

was admissible under FED. R. EVID. 609(a). See United States v.

Box, 50 F.3d 345, 355 (5th Cir. 1995). The district court’s

judgment is AFFIRMED.