Pickett v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 8, 2001
• Docket: 00-40363
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40363 Summary Calendar

MICHAEL EUGENE PICKETT,

Plaintiff-Appellant,

versus

GARY L. JOHNSON ET AL.,

Defendants,

BRIAN CRAWFORD, Correctional Officer; JULIUS ALLEN STALLING, Correctional Officer; BOBBY W. BURNS, Correctional Officer,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:99-CV-62 -------------------- August 8, 2001

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Michael Eugene Pickett, Texas prisoner # 570886, appeals the

dismissal of his 42 U.S.C. § 1983 complaint following a jury

trial.

Pickett alleges in his brief that counsel for Defendants-

Appellees withheld evidence, specifically, medical records from

John Sealy Hospital dated January 28, 2000. There is nothing to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40363 -2-

support Pickett’s assertion that the defendants withheld the

hospital record.

Pickett argues that the defendants did not produce a key

trial witness, physician’s assistant Ananda Babbili, in violation

of the magistrate judge's pretrial order, and the magistrate

judge’s decision to proceed without Babbili prevented him from

fully presenting his case. Pickett makes no argument regarding

to what Babbili would have testified or how proceeding without

Babbili prevented him from fully presenting his case. He has not

shown that the magistrate judge abused her discretion in allowing

the trial to proceed without Babbili.

Pickett contends that the defendants' medical expert, Dr.

Robert Brock, committed perjury and gave false, conflicting, and

inconsistent testimony. However, Pickett points to no evidence

in the record indicating that Dr. Brock’s testimony was false or

perjurious or that his medical opinion was unfounded. To the

extent that Pickett challenges Dr. Brock's credibility, this

court does not weigh conflicting evidence or review credibility

determinations made at trial. See Martin v. Thomas, 973 F.2d

449, 453 & n.3 (5th Cir. 1992).

Pickett contends that the defendants used their peremptory

challenges to exclude African-Americans from the jury, resulting

in an all-white jury that was biased. Because Pickett made no

objection at trial to the defendants’ strikes or to the

composition of the jury, this issue is not reviewable. See

Garcia v. Excel Corp., 102 F.3d 758, 759 (5th Cir. 1997). No. 00-40363 -3-

Pickett’s motion for a subpoena duces tecum to compel the

defendants to produce his medical records from John Sealy

Hospital is DENIED. His motion to correct the record on appeal

is DENIED.

AFFIRMED; MOTION FOR A SUBPOENA DUCES TECUM DENIED; MOTION

TO CORRECT THE RECORD ON APPEAL DENIED.