Sosa v. McKee

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 8, 2002
• Docket: 99-41012
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41012 Summary Calendar

THOMAS SOSA,

Plaintiff - Appellant,

v.

KEVIN MCKEE, Etc.; ET AL,

Defendants,

KEVIN MCKEE, Correctional Officer; JERRY BODIN, JR., Correctional Officer,

Defendants - Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:95-CV-1037 -------------------- April 5, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Thomas Sosa (TDCJ #668562) appeals the dismissal of his pro

se and in forma pauperis (IFP) civil rights complaint wherein he

argued that several correctional officers at his prison unit used

excessive force against him. The magistrate judge dismissed the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41012 -2-

complaint after a trial in which the jury returned a verdict for

the defendants.

Sosa first argues that the magistrate judge abused his

discretion by failing to hold a final pretrial conference, thus

depriving him of the opportunity to subpoena "key expert

witnesses." However, even assuming that no formal final pretrial

conference was held, Sosa cannot demonstrate reversible error.

Although Sosa’s right to due process includes a right to fully

litigate his case, such right does not necessarily include the

right to a final pretrial conference. Cf. Streber v. Hunter, 221

F.3d 701, 734 (5th Cir. 2000)(right to due process does not

necessarily include right to make closing arguments). Because he

has not shown how the absence of the missing witnesses hampered

his ability to fully and fairly litigate his claim, Sosa has not

shown a denial of due process based on the absence of a formal

final pretrial conference.

Sosa also argues that the magistrate judge denied him a fair

trial and an impartial jury when he refused to allow him to

exercise his peremptory challenges; however, a review of the

trial transcript reveals that after repeated unsuccessful

attempts to get Sosa to exercise the strikes, the magistrate

judge determined that Sosa had waived his right to exercise the

peremptory challenges. The magistrate judge did not deny Sosa

his right to exercise the challenges. No. 99-41012 -3-

Sosa also argues that the magistrate judge abused his

discretion by denying him appointed counsel. We review the

denial of a motion to appoint counsel for an abuse of discretion.

See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).

The record demonstrates that the magistrate judge carefully

considered whether Sosa had the ability to represent himself

after all attempts to retain appointed counsel proved

unsuccessful. He denied Sosa’s request for inmate counsel based

on a valid security concern. No abuse of discretion has been

shown.

Sosa next argues that the magistrate judge should have

granted his request to discover the complete disciplinary records

of the defendants. The magistrate judge denied Sosa’s request as

overbroad, but required the defendants to submit any past

disciplinary records that were based on improper uses of force.

We review the district court’s discovery decisions for an abuse

of discretion. See Krim v. BancTexas Group, Inc., 989 F.2d 1435,

1441-42 (5th Cir. 1993). We will affirm such decisions unless

they are arbitrary or clearly unreasonable. Id.

The magistrate judge’s ruling limiting Sosa’s access to the

defendants’ disciplinary records to those incidents involving

excessive force was a reasonable response to the overbroad

request made by Sosa. Again, no abuse of discretion has been

shown. No. 99-41012 -4-

Finally, Sosa argues that the magistrate judge abused his

discretion by refusing to allow him to introduce certain portions

of an internal affairs report written in connection with the use-

of-force incident. According to the internal affairs report,

Sosa was being truthful when he denied hitting Officer McKee in

the chest with his fist. We review the district court’s

evidentiary rulings for an abuse of discretion, and we will

reverse on the basis of evidentiary errors only if they resulted

in substantial prejudice. See Thomas v. Texas Dep’t of Criminal

Justice, 220 F.3d 389, 394 (5th Cir. 2000). Even if evidence is

wrongly excluded, such exclusion will be reviewed for harmless

error. See Reddin v. Robinson Prop. Group Ltd. P’ship, 239 F.3d

756, 761 (5th Cir. 2001).

In the instant case, the exclusion of the polygraph

examination did not result in substantial prejudice to Sosa’s

case. The determinative issue was not whether Sosa’s reaction to

McKee could be defined as a "punch" or a "hit," but rather

whether the force exercised by the officers in subduing and

restraining Sosa was unnecessary or wanton. Thus, while it is

arguable that introduction of the polygraph results might have

been helpful to Sosa’s case, it cannot be said that the exclusion

of such resulted in substantial prejudice to Sosa. Any error was

therefore harmless.

The judgment of the district court is AFFIRMED.