Pastrana v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 21, 2001
• Docket: 99-41491
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41491 Summary Calendar

RUBEN PASTRANA,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-97-CV-216 -------------------- November 20, 2001

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Ruben Pastrana appeals the dismissal of his complaint for

damages filed pursuant to the Federal Torts Claims Act. Pastrana

contends that the magistrate judge clearly erred in finding that

the arrest occurred on June 29, 1995. He asserts that this

finding affected the magistrate judge’s conclusion that Pastrana

was not entitled to relief on his claim that he was not given

meals for two days while in custody. Pastrana contends also that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41491 -2-

the magistrate judge abused his discretion by denying counsel’s

motions to withdraw and for a continuance.

The record demonstrates that the error in the recitation of

the date of Pastrana’s arrest was merely a mistake that caused

the record to fail to reflect what was intended at the time of

trial and did not affect Pastrana’s substantial rights. We will

not re-evaluate the magistrate judge’s credibility determination.

Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1559 (5th Cir.

1985).

Pastrana has not shown that the magistrate judge’s decision

on the motions to withdraw and for a continuance was an abuse of

discretion. See United States v. Wild, 92 F.3d 304, 306 (5th

Cir. 1996); United States v. Davis, 61 F.3d 291, 298 (5th Cir.

1995).

Pastrana has abandoned his claims that he was treated

roughly during his arrest and that he was denied requested

medical treatment by failing to assert them in this court. See

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987) (issues not asserted on appeal are

abandoned).

Accordingly, the judgment is AFFIRMED.