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Joseph v. Hebert, 99-30077 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-30077 Visitors: 8
Filed: Feb. 15, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-30077 Summary Calendar ULYSSES JOSEPH, Plaintiff-Appellant, versus WARDEN HEBERT; KEVIN MILLET; JIMMY OUBRE; JAMIE ST ANDRUS; JARRETT LNU, in their individual and official capacities, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 97-CV-725-N February 10, 2000 Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Ulysses Joseph appeals from the ju
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-30077
                         Summary Calendar


ULYSSES JOSEPH,

                                          Plaintiff-Appellant,

                              versus

WARDEN HEBERT; KEVIN MILLET; JIMMY OUBRE; JAMIE ST ANDRUS;
JARRETT LNU, in their individual and official capacities,

                                          Defendants-Appellees.



          Appeal from the United States District Court
              for the Eastern District of Louisiana
                       USDC No. 97-CV-725-N

                         February 10, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Ulysses Joseph appeals from the judgment entered in favor of

the defendants on his § 1983 claims.    We AFFIRM.

     Jail officials conducted a "lockdown" after a fight at St.

John the Baptist jail, and prisoners    threw food and debris into

hallways from their cells in protest.    Joseph alleged that he was

beaten by the warden and sheriff's deputies after he admitted to

participating in the fight.

     Joseph sued the deputies and warden under 42 U.S.C. § 1983,

alleging that he suffered severe injuries as a consequence of an

     *
      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this opinion should not be published and is not precedent except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.
excessive use of force and that he was denied medical treatment.

By written consent of the parties, the case was tried to a

magistrate judge without a jury.

     Joseph did not brief the claim that he was denied medical

treatment.     Claims are deemed abandoned if not argued on appeal.

See Davis v. Maggio, 
706 F.2d 568
, 571 (5th Cir. 1983).                      The only

claim before us is Joseph's excessive force claim.

     Joseph testified at trial, and four other inmates testified by

telephone or video conference.              The magistrate judge found the

inmates'      testimony    incredible       because     of     their     demeanor,

inconsistencies in their testimony about the length of the alleged

beating, and the nature of their version of events. The magistrate

judge also considered the felony convictions of the inmates as a

factor   in    weighing   the   credibility       of   their    testimony.         He

determined     that    during   the   lockdown,    Joseph      encouraged      other

inmates to protest, that deputies removed him from his cell to

prevent his further inciting the inmates, that he resisted, and

that the deputies used the force necessary to subdue him.                          The

magistrate     judge   directed   entry     of   judgment      in    favor    of   the

defendants.

     Joseph argues that the magistrate judge erred in crediting the

defendants' testimony while discrediting the inmates' testimony.

Joseph maintains that the magistrate judge gave undue weight to the

inmates'   felony      convictions    in    weighing   their        credibility    as

witnesses.




                                        2
     We review the trial court's findings of fact for clear error.

See Hall v. National Gypsum Co., 
105 F.3d 225
, 228 (5th Cir. 1997).

     We do not find clear error in the magistrate judge's findings

of fact.    Joseph's claim that the magistrate judge discredited the

inmates' testimony primarily or even solely on the basis of their

felony convictions is not supported by the record.              The magistrate

judge heard extensive testimony about the incident from the inmates

and deputies.       His Findings of Fact and Conclusions of Law shows

that he considered not only the witnesses' felony convictions but

also their demeanor, inconsistencies in their testimony and the

substance    of    their    version    of    events.     He   also   considered

photographic and medical evidence that showed Joseph's injuries to

be slight and not consistent with the severe beating described by

the inmates.      The magistrate judge did not give undue weight to the

inmates' felony convictions in considering their testimony.                    A

felony     conviction      may   be   admissible    to   impeach     a   witness'

testimony.        See Fed. R. Evid. 609.           The magistrate judge was

entitled to consider the witnesses' felony convictions in assessing

their credibility.

         AFFIRMED.




                                         3

Source:  CourtListener

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