IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40709
Summary Calendar
HORACE JERRERY,
Plaintiff-Appellant,
versus
UNKNOWN WALKER, Correctional Officer,
Beto I, ET AL.,
Defendants,
UNKNOWN WALKER, Correctional Officer,
Beto I,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:95-CV-596
- - - - - - - - - -
October 8, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Horace Jeffery, # 669340, appeals the judgment, following a
bench trial, in favor of the defendant in his a civil rights action
under 42 U.S.C. § 1983 alleging an excessive use of force against
him. From the conflicting evidence presented at trial, the
magistrate judge concluded, under Hudson v. McMillian, 503 U.S. 1,
6-7 (1992), that there was a need to apply force against Jeffery,
*
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that this opinion should not be published and is not precedent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. 96-40709
-2-
that the force used was not excessive to the need presented, and
that there was no evidence that the officers acted with the intent
to harm Jeffery. Jeffery has not shown that the factual findings
supporting these conclusions are clearly erroneous. See Fed. R.
Civ. P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 575
(1985).
Jeffery waived his right to a jury trial by failing to request
a jury trial within 10 days of the service of a pleading directed
to an issue triable to a jury. FED.R.CIV.P. 38(b). See also US v.
Moore, 340 U.S. 616, 71 S.Ct. 524 (1951) and Lewis v. Thigpen, 767
F.2d 252 (5th Cir. 1985). Also, the magistrate judge did not
abuse his discretion by not allowing Jeffery to present testimony
from other inmates who had not been listed as witnesses in
accordance with the court’s scheduling order. See Gibbs v. King,
779 F.2d 1040, 1047 (5th Cir. 1986). The judgment is AFFIRMED.
Jeffery has filed motions for a jury trial, to supplement the
record, and for a restraining order. These motions are either
additional argument on his issues for appeal or concern matters
that have nothing to do with the current appeal. These motions are
DENIED.
Finally, Jeffery seeks appointment of counsel. Jeffery has
failed to show any exceptional circumstances requiring that he be
appointed counsel on appeal. See Ulmer v. Chancellor, 691 F.2d
209, 213 (5th Cir. 1982). Jeffery’s motion for appointment of
counsel on appeal is also DENIED.
AFFIRMED; MOTIONS DENIED.