Johnson v. Fewell

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2002
• Docket: 01-30781
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30781 Conference Calendar

ERNEST GLENN JOHNSON,

Plaintiff-Appellant,

versus

RICHARD L. FEWELL; HARRIS, MR.; JAMES TURNER; JAMES CARTER; MELISSA BRANDON; STEELMAN, MRS.; ROGER ROBERT,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 98-CV-2182 -------------------- April 10, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Ernest Glenn Johnson (Louisiana prisoner # 10119) appeals

the district court’s dismissal of his 42 U.S.C. § 1983 complaint

after an evidentiary hearing by the magistrate judge pursuant to

28 U.S.C. § 636(b)(1)(B). Johnson does not challenge the legal

basis for the dismissal of his complaint, but rather he merely

recounts the factual basis for his complaint and disputes the

testimony given by the defendants’ witnesses.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-30781 -2-

The dismissal of Johnson’s complaint amounted to a dismissal

of the action following a bench trial. See McAfee v. Martin, 63

F.3d 436, 437 (5th Cir. 1995). This court ordinarily reviews the

factual findings made during a bench trial for clear error. See

Odom v. Frank, 3 F.3d 839, 843 (5th Cir. 1993). However, because

Johnson failed to provide this court with a transcript of the

evidentiary hearing, this court will not consider his claims, and

the appeal is DISMISSED.** See Powell v. Estelle, 959 F.2d 22,

26 (5th Cir. 1992); Richardson v. Henry, 902 F.2d 414, 416 (5th

Cir. 1990); 5TH CIR. R. 42.3.2.

APPEAL DISMISSED.

** Even if this court were to consider Johnson’s claims, Johnson provides nothing more than his own self-serving assertion that the testimony adduced at the hearing was false. He thus has not demonstrated clear error in the district court’s factual findings. See Odom, F.3d at 843.