Miles v. West

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-40718 Summary Calendar

JESSE RAY MILES, JR.,

Plaintiff-Appellant,

versus

ROGER WEST ET AL.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:95-CV-90 - - - - - - - - - - July 17, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jesse Ray Miles, Jr., TDCJ No. 638526, appeals the dismissal

with prejudice of his 42 U.S.C. § 1983 action following a bench

trial conducted by the magistrate judge. The magistrate judge

did not err by entering a dismissal with prejudice in this action

instead of a dismissal without prejudice. See Baris v. Sulpicio

Lines, Inc., 74 F.3d 567, (5th Cir. 1996). Since Miles received

a bench trial, the magistrate judge obviously construed Miles’

pleadings to state a claim against the defendants.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 95-40718 - 2 -

The magistrate judge did not err by refusing to appoint

counsel for Miles. See Ulmer v. Chancellor, 691 F.2d 209, 212

(5th Cir. 1982). Because Miles participated in the bench trial

without objecting and reminding the magistrate judge of his jury

request, he is barred from raising the issue on appeal. Matter

of Wynn, 889 F.2d 644, 646 (5th Cir. 1989). The defendants did

not violate Miles’ due process rights by placing him into

solitary confinement for two months. See Sandin v. Conner, 115

S. Ct. 2293, 2300 (1995). Miles’ appeal is DISMISSED as

frivolous. See 5th Cir. R. 42.2.

We warn Miles that the filing of future frivolous appeals

will result in sanctions. E.g., Smith v. McCleod, 946 F.2d 417,

418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68, 69 (5th

Cir. 1991). If Miles has any other appeals pending in this court

at this time, he should review them in light of the foregoing

warning and move to withdraw any appeal that is frivolous.

APPEAL DISMISSED; SANCTION WARNING ISSUED.