Smith v. McCann

991 F.2d 802, 1993 U.S. App. LEXIS 14616, 1993 WL 122087

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 22, 1993
• Docket: 92-3838
• Status: Unpublished

Opinion

991 F.2d 802

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
George Horatio SMITH, Jr., Appellant,
v.
Jack MCCANN, Criminal Investigator, Jonesboro Police
Department, Rusty Grigsby, Criminal Investigator,
Jonesboro Police Department, Appellees.

No. 92-3838.

United States Court of Appeals,
Eighth Circuit.

Submitted: April 8, 1993.
Filed: April 22, 1993.

Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges.

PER CURIAM.

George H. Smith, Jr., appeals from the district court's1 dismissal of his 42 U.S.C. § 1983 action, which alleged that defendant police officers used excessive force when arresting and interrogating him.

We may set aside a district court's findings of fact only if they are clearly erroneous. Fed. R. Civ. P. 52(a). To conclude that findings of fact are clearly erroneous, we must have a definite and firm conviction upon reviewing the record that a mistake has been made. Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). Further, " [w]hen findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings." Id. at 575. After conducting a hearing, the magistrate judge credited the officers' testimony that they did not abuse Smith and recommended dismissal. Having reviewed the record, we conclude that the magistrate judge's findings, which the district court adopted, were not clearly erroneous.

We further conclude that the magistrate judge did not abuse his discretion in allowing the jail administrator to testify for defendants. See Donald v. Rast, 927 F.2d 379, 381 (8th Cir.), cert. denied, 112 S. Ct. 96 (1991) (standard of review). We deny Smith's motion for appointment of counsel. We also deny Smith's "Petition for Extraordinary Writ," which appears to be a habeas petition that Smith must file first in the district court after exhausting his state remedies.

The judgment is affirmed.

1 The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas, adopting the report and recommendation of the Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas