McQueen v. Baker

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-50836 Summary Calendar

SYNNACHIA McQUEEN,

Plaintiff-Appellant,

versus

CLARENCE BAKER, CO III Officer; RICHARD HARVEY, CO III Officer,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. 93-CV-359 - - - - - - - - - - May 20, 1996 Before HIGGINBOTHAM, DUHE’ and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Synnachia McQueen’s motion for leave to proceed in forma

pauperis (IFP) on appeal and for preparation of a transcript at

government expense is DENIED.

McQueen has not shown that the magistrate judge abused his

discretion by denying his motion to amend his complaint. See

Ashe v. Corley, 992 F.2d 540, 542 (5th Cir. 1993); Union City

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 95-50836 - 2 -

Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 135 (5th

Cir. 1987). The record does not contain a copy of McQueen’s

proposed supplemental complaint; it is McQueen’s duty to provide

us with those portions of the record he contends contain error.

United States v. Narvaez, 38 F.3d 162, 167 (5th Cir. 1994), cert.

denied, 115 S. Ct. 1803 (1995). We therefore do not consider

McQueen’s contentions that the magistrate judge erred by denying

him leave to file his supplemental complaint and by sanctioning

him $50 for attempting to file the supplemental complaint.

McQueen has not indicated how the information he wished to

obtain through discovery would have assisted him or how he was

harmed because he did not obtain the information. He has not

demonstrated that the district court abused its discretion by

denying his discovery requests. See Scott v. Monsanto Co., 868

F.2d 786, 793 (5th Cir. 1989); Mayo v. Tri-Bell Indus., Inc., 787

F.2d 1007, 1012 (5th Cir. 1986).

McQueen has not provided us with the records or transcripts

of the other cases in which he alleges the district court and

magistrate judge have excluded minorities from jury service. We

do not consider his allegations regarding those other cases. See

Narvaez, 38 F.3d at 167. McQueen thus is left with the jury

selection in his own trial, on which he cannot rely to prove

underrepresentation or systematic exclusion of jurors. Timmel v.

Phillips, 799 F.2d 1083, 1086 (5th Cir. 1986). No. 95-50836 - 3 -

McQueen does not indicate how any previous acts of

retaliation might reflect on the defense witnesses’ character for

truthfulness or untruthfulness. FED. R. EVID. 608(b). Nor does

he indicate how his filing of grievances or complaints alone

would have motivated a particular defense witness to retaliate

against him by testifying at McQueen’s federal trial. Nor does

he indicate that he would have used evidence of previous

retaliation for a purpose permitted by FED. R. EVID. 404(b).

McQueen has not shown that the district court abused its

discretion by granting the defendants’ motion in limine. United

States v. Triplett, 922 F.2d 1174, 1180 (5th Cir.), cert. denied,

500 U.S. 945 (1991).

McQueen does not contend that the district court failed to

determine that the probative value of his witnesses’ felony

convictions outweighed their prejudicial effect. Indeed, he does

not contend that the admission of the convictions was error; he

challenges only the district court’s instruction to the jury that

felony convictions are relevant for determining the credibility

of witnesses. Because McQueen does not challenge the admission

of the evidence or provide any argument that we so construe, his

jury-instruction contention fails.

Because the jury found that the defendants did not retaliate

against McQueen for exercising his First Amendment rights, the

jury did not need to reach the issue of the defendants’ qualified

immunity. See Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. No. 95-50836 - 4 -

1993). McQueen’s contention that the district court erred by

instructing the jury on qualified immunity is unavailing.

Finally, we remind McQueen that he has been barred

indefinitely by this court from filing any pro se, in forma

pauperis civil appeal in this court, or any pro se, in forma

pauperis initial civil pleading in any court which is subject to

this court’s jurisdiction, without the advance written permission

of a judge of the forum court or of this court, and that the

clerk of this court and the clerks of all federal district courts

in this Circuit are directed to return to McQueen, unfiled, any

attempted submission inconsistent with this bar. We considered

the current appeal only because it was submitted to this court

before we sanctioned McQueen. To avoid additional sanctions,

however, McQueen should review any pending appeals and withdraw

any frivolous appeals immediately.

APPEAL DISMISSED. See 5TH CIR. R. 42.2.