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Webb v. Gonzales, 00-41385 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 00-41385 Visitors: 16
Filed: Dec. 28, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-41385 Summary Calendar MICHAEL OWEN WEBB, Plaintiff-Appellant, versus ROEL GONZALES, Sergeant, Michael Unit; TIM A. HUFFMAN, Sergeant; KENNETH PARTIN, Captain, Michael Unit; FREDERIC EDWARDS, Corrections Officer III, Michael Unit; CATHERINE GAIL MAYES, Internal Affairs, Michael Unit; EVELYN McHALE, Michael Unit; ROBERT HERRERA, Michael Unit; CHARLES LIGHTFOOT, Michael Unit; LAURIE A. CARROLL, Michael Unit; UNIDENTIFIED MARTIN, Ca
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-41385
                          Summary Calendar



MICHAEL OWEN WEBB,

                                         Plaintiff-Appellant,

versus

ROEL GONZALES, Sergeant, Michael Unit; TIM A.
HUFFMAN, Sergeant; KENNETH PARTIN, Captain, Michael
Unit; FREDERIC EDWARDS, Corrections Officer III,
Michael Unit; CATHERINE GAIL MAYES, Internal Affairs,
Michael Unit; EVELYN McHALE, Michael Unit; ROBERT
HERRERA, Michael Unit; CHARLES LIGHTFOOT, Michael
Unit; LAURIE A. CARROLL, Michael Unit; UNIDENTIFIED
MARTIN, Captain,

                                         Defendants-Appellees.

                         - - - - - - - - - -
           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 6:99-CV-338
                         - - - - - - - - - -
                          December 27, 2001
Before DAVIS, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

     Michael O. Webb, a Texas prisoner (# 620220), appeals from

the dismissal of his complaint pursuant to a magistrate judge’s

recommendation, following evidentiary hearings before the

magistrate judge in accordance with Flowers v. Phelps, 
956 F.2d 488
(5th Cir.), modified on other grounds, 
964 F.2d 400
(5th Cir.

1992).   The district court adopted the magistrate judge’s

     *
        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that this opinion should not be published and is not precedent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. 00-41385
                                -2-

recommendations to dismiss Webb’s claims that various

correctional officials assaulted Webb and then were deliberately

indifferent to his medical needs.

     This court had already denied Webb’s motion for a production

of transcripts of the July 6, 2000, and October 5, 2000,

Flowers hearings at government expense.    The defendants have

since provided a transcript of the July 6, 2000, hearing.    The

October 5, 2000, hearing remains untranscribed.

     Many of Webb’s contentions on appeal concern the weight of

the evidence presented at the Flowers hearings, the magistrate

judge’s findings on credibility and her alleged omission and

misinterpretation of evidence, and alleged perjury by defense

witnesses.   Insofar as those contentions concern the July 6,

2000, hearing, Webb has not demonstrated that the magistrate

judge’s factual findings and legal conclusions were erroneous,

see Odom v. Frank, 
3 F.3d 839
, 843 (5th Cir. 1993), nor has he

sustained the heavier burden of demonstrating that the magistrate

judge erred in making credibility determinations.    See Canal

Barge Co., Inc. v. Torco Oil Co., 
220 F.3d 370
, 375 (5th Cir.

2000).   The judgment of the district court is AFFIRMED as to

these claims.

     Webb has made no additional attempt to provide transcripts

of the October 5, 2000, Flowers hearing.    Webb’s failure to make

the showing required to obtain such transcript at Government

expense prevents this court from reviewing his arguments that

relate directly to the conduct of that hearing.     See Richardson

v. Henry, 
902 F.2d 414
, 415-16 (5th Cir. 1990).    Accordingly,
                           No. 00-41385
                                -3-

insofar as his contentions relate to the conduct of and testimony

at the October 5, 2000, hearing, the appeal is DISMISSED.

See id.; 5TH CIR. R. 42.3.2.

     Webb has not demonstrated that the magistrate judge abused

her discretion in denying his discovery requests, see King v.

Dogan, 
31 F.3d 344
, 346 (5th Cir. 1994), or in denying his

motions for appointment of counsel.   See Jackson v. Dallas Police

Dep’t, 
811 F.2d 260
, 261 (5th Cir. 1986).   The judgment is

AFFIRMED as to these claims.

     Webb makes no specific arguments with respect to the

district court’s earlier dismissal of claims against several

other defendants as frivolous following a hearing pursuant to

Spears v. McCotter, 
766 F.2d 179
(5th Cir. 1985).   See white

brief, passim.   Webb has effectively abandoned these claims.

See Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993); FED.

R. APP. P. 28(a)(9).

     DISMISSED IN PART; AFFIRMED IN PART.

Source:  CourtListener

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