Hogan v. Nobles

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-60079 Summary Calendar

BRIAN HOGAN, Plaintiff-Appellant,

versus

NOBLES, Officer, Police Officer at Hattiesburg Police Department, ET AL, Defendants,

NOBLES, Officer, Police Officer at Hattiesburg Police Department, Defendant-Appellee.

* * * * * * * * * * * * * * * * * * *

BRIAN HOGAN, Plaintiff-Appellant,

versus

CITY OF HATTIESBURG; UNKNOWN NOBLES, Officer, Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:96-CV-20PG USDC No. 2:96-CV-31PG - - - - - - - - - - July 14, 1998 Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-60079 -2-

Brian Hogan, Mississippi prisoner # 67383, proceeding pro

se, appeals the judgment in favor of Police Officer Mike Nobles

in Hogan’s civil rights lawsuit, 42 U.S.C. § 1983. Hogan’s

motion for leave to file a supplemental brief is GRANTED.

Appellee’s motion in opposition and motion to strike the reply

brief are DENIED.

Hogan has not challenged in this court the judgment,

dismissing Defendant Police Chief Landers from the case.

Accordingly, Hogan has abandoned that issue. See Brinkmann v.

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

1987)(issues not asserted on appeal are abandoned).

Hogan contends that the magistrate judge erred in denying

his motion for appointment of counsel. A review of the record

indicates that the magistrate judge did not abuse his discretion.

Hogan’s civil rights case did not present “exceptional

circumstances.” Jackson v. Dallas Police Dep't, 811 F.2d 260,

261 (5th Cir. 1986).

Hogan contends that the magistrate judge erred in

determining that Nobles’ version of the facts was correct and in

concluding that the force used by Nobles was reasonable under the

circumstances. Resolving factual disputes and making credibility

determinations are tasks that fall within the province of the

trial court, and this court will not invade that province.

Martin v. Thomas, 973 F.2d 449, 453 n.3 (5th Cir. 1992). The

magistrate judge’s findings of fact are not clearly erroneous. No. 97-60079 -3-

See Fed. R. Civ. P. 52(a). Further, we have reviewed the record

and the parties’ briefs, and we AFFIRM the decision that the

amount of force used was not unreasonable in light of the

circumstances for essentially the reasons stated by the

magistrate judge. See Hogan v. Nobles, No. 2:96CV20PG cons/w

2:96CV31PG (S.D. Miss. Feb. 5, 1997); see Graham v. Connor, 490

U.S. 386, 396-97 (1989).

Hogan also contends that the defense witnesses committed

perjury and that the magistrate judge should not have considered

his conviction for the armed robbery. Hogan has not sufficiently

briefed these arguments. See Fed. R. App. P. 28(a)(6) (the

argument must contain citations to the record and to legal

authorities); see Price v. Digital Equip. Corp., 846 F.2d 1026,

1028 (5th Cir. 1988) (arguments must be briefed to be preserved

on appeal).

Issues raised by Hogan for the first time in the reply brief

are not considered. See Knighten v. Commissioner, 702 F.2d 59,

60 & n.1 (5th Cir. 1983) (issue may not be raised for the first

time in a reply brief, even by a pro se appellant).

Hogan’s motions to set aside the judgment, for declaratory

judgment, for writ of certiorari, and to strike appellee’s brief

are DENIED.

AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED;

APPELLEE’S MOTION IN OPPOSITION AND TO STRIKE REPLY BRIEF DENIED;

ALL OTHER MOTIONS DENIED. No. 97-60079 -4-