Howard v. Bailey

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 96-40465 Summary Calendar ERIC ANTONIO HOWARD, Plaintiff-Appellant, versus CHARLES C. BAILEY, in his official capacity as District Attorney for the 76th Judicial District, ET AL., Defendants, KENNETH SPARKS, in his official capacity as Lieutenant in the Mt. Pleasant City Police Department; JIM BAYUK, in his official capacity as Agent DPS/TNT Task Force, Defendants-Appellees. Appeal from the United States District Court For the Eastern District of Texas (2:93-CV-99) December 6, 1996 Before POLITZ, Chief Judge, KING and PARKER, Circuit Judges PER CURIAM:* * Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Eric Antonio Howard appeals an adverse summary judgment entered after partial affirmance and partial remand of his earlier appeal. Our review of the record and briefs discloses neither error nor abuse of discretion in the judgment on remand and, accordingly, we affirm, essentially on the basis of the facts as found, authorities cited, and analysis in the careful and thorough Report and Recommendation of United States Magistrate Judge filed April 4, 1996, which was approved and adopted by the district court by its order filed on April 30, 1996. Howard’s attempt to challenge the denial of appointment of counsel prior to the first appeal is beyond the scope of today’s review.1 His request for appointment of counsel herein is denied.2 His suggestion that he should have been allowed further discovery before the trial court ruled on the summary judgment motions lacks factual basis and is frivolous. The judgment appealed is AFFIRMED. 1 Burroughs v. FFP Operating Partner, L.P., 70 F.3d 31 (5th Cir. 1995). 2 Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982). 2