Hale v. Clayton

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 13, 2001
• Docket: 00-40372
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40372 Summary Calendar

HARRIS GENE HALE,

Plaintiff-Appellant,

versus

CHRISTOPHER CLAYTON, Etc., ET AL.,

Defendants,

CHRISTOPHER CLAYTON, officer, Longview Police Department Individually and in official capacity; RILEY TAYLOR, Detective, Longview Police Department Individually and in official capacity,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:98-CV-343 --------------------

February 7, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

We remanded to the district court the malicious prosecution

claim raised by Harris Gene Hale (TDCJ # 322484) in his 42 U.S.C.

§ 1983 suit. Thereafter, the district court conducted a hearing

consistent with Flowers v. Phelps, 956 F.2d 488, modified in part

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40372 -2-

on other grounds, 964 F.2d 400 (5th Cir. 1992), and dismissed the

claim.

We do not consider Hale’s contention that the district court

could have exercised its discretion to order a jury trial under

Fed. R. Civ. P. R. 39(b) because it is raised for the first time

in Hale’s reply brief. See Stephens v. C.I.T. Group/Equip. Fin.,

Inc., 955 F.2d 1023, 1026 (5th Cir. 1992). Hale waived his

argument that the district court erred by not issuing a subpoena

for a “core witness” when he indicated to the magistrate judge at

the beginning of the Flowers hearing that he was ready to

proceed, and he voiced no objection to proceeding with the

hearing despite the witness’s absence. See Trustees of Sabine v.

Don Lightfoot Home Builder, Inc., 704 F.2d 822, 828 (5th Cir.

1983). We find no abuse of discretion in the denial of the

motion for the appointment of counsel. See Jackson v. Dallas

Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986); Ulmer v.

Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). Finally, we

conclude that by not providing this Court with a transcript of

the Flowers hearing, Hale has waived appellate review of his

contention that the district court erred by dismissing his

malicious prosecution claim on its merits. See Fed. R. App. P.

(10)(b)(2); Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992).

The judgment of the district court is AFFIRMED.