Filed: Apr. 03, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-41212 Summary Calendar JESSE WARE, Plaintiff-Appellant, versus WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division; GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; ORLANDO PEREZ, Warden; MARK DIAZ, Warden; UNIDENTIFIED PARTY, Major; UNIDENTIFIED PARTY, Captain; UNIDENTIFIED PARTY, Lieutenant; UNIDENTIFIED PARTY, Sergeant; UNIDENTIFIED PARTY, Correctional Off
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-41212 Summary Calendar JESSE WARE, Plaintiff-Appellant, versus WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division; GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; ORLANDO PEREZ, Warden; MARK DIAZ, Warden; UNIDENTIFIED PARTY, Major; UNIDENTIFIED PARTY, Captain; UNIDENTIFIED PARTY, Lieutenant; UNIDENTIFIED PARTY, Sergeant; UNIDENTIFIED PARTY, Correctional Offi..
More
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41212
Summary Calendar
JESSE WARE,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director, Texas Department of
Criminal Justice, Institutional Division; GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; ORLANDO PEREZ, Warden; MARK DIAZ, Warden; UNIDENTIFIED
PARTY, Major; UNIDENTIFIED PARTY, Captain; UNIDENTIFIED PARTY,
Lieutenant; UNIDENTIFIED PARTY, Sergeant; UNIDENTIFIED PARTY,
Correctional Officer III; UNIDENTIFIED PARTY, Correctional
Officer III; UNIDENTIFIED PARTY, Correctional Officer III;
UNIDENTIFIED PARTY, Correctional Officer III; UNIDENTIFIED PARTY,
Correctional Officer III; WILLIAM BOOTH, Warden; SIMPSON, DR.;
VERNON PITTMAN; CRYSTAL MCCOY; R. MEY, DR.; K. BLACKWELL, Nurse,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-16
- - - - - - - - - -
April 3, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesse Ware, Texas prisoner #395442, appeals from the jury
verdict finding that his civil-rights lawsuit filed pursuant to 42
U.S.C. § 1983 was barred by limitations. He argues that: (1) his
lawsuit was erroneously transferred from the Eastern District of
*
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that this opinion should not be published and is not precedent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. 99-41212
-2-
Texas to the Southern District of Texas, Corpus Christi Division;
(2) the magistrate judge’s sua sponte order of a jury trial to
determine the limitations issue was an abuse of discretion; and (3)
the magistrate judge failed to apply the correct statute of
limitations.
The magistrate judge did not abuse her discretion by
transferring the lawsuit to the Southern District, Corpus Christi
Division, where the relevant incidents occurred and all the
defendants were located. See Casarez v. Burlington Northern/Santa
Fe Co.,
193 F.3d 334, 339 (5th Cir. 1999). The magistrate judge’s
order of a jury trial to determine the limitations issue was not an
abuse of discretion because it did not conflict with the district
court’s previous decision denying three of the defendants’ motions
to dismiss or for summary judgment based on limitations. Although
the district court denied such motions because it held that the
defendants had not produced sufficient evidence that Ware’s
complaint had been untimely, such denial did not determine that
Ware’s complaint was timely. Furthermore, the magistrate judge
properly applied to Ware’s claims the Texas statute of limitations
utilized for medical injury claims. See Harris v. Hegmann,
198
F.3d 153, 156 (5th Cir. 1999).
Accordingly, the district court’s judgment of dismissal is
AFFIRMED. Ware’s motion for leave to submit documentary evidence
is DENIED.