IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60572
Summary Calendar
BERNARD JONES,
Plaintiff-Appellant,
versus
JAMES A. RILEY, Sheriff; ROBERT SMITH;
DESOTO COUNTY BOARD OF COMMISSIONERS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:97-CV-3-B-B
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November 2, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Bernard Jones, Mississippi prisoner # 65750, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
suit pursuant to a motion for judgment as a matter of law. On
appeal, Jones argues (1) that Deputy Smith exhibited deliberated
indifference to Jones’ serious medical needs because Smith,
despite not being a trained medical professional, initially
treated Jones’ injury; (2) that Deputy Smith inflicted cruel and
unusual punishment when he forced Jones to lie on the cold prison
*
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that this opinion should not be published and is not precedent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. 98-60572
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floor in an awkward position and when he kicked Jones in the
head; (3) that the DeSoto County Board of Commissioners should be
held liable for Deputy Smith’s actions; (4) that the defendants
conducted unconstitutional prison cell searches; (5) that the
district court erred when it failed to control Michael Morgan’s
testimony and failed to impeach his testimony; and (6) that the
district court erred when it denied Jones’ request for a jury
trial and conducted a trial before a magistrate judge without
Jones’ consent.
When a district court enters a judgment as a matter of law
in the context of a nonjury trial, this court reviews the
district court’s findings for clear error. See Fed. R. Civ. P.
52(c); Southern Travel Club v. Carnival Airlines, 986 F.2d 125,
128-29 (5th Cir. 1993). Deputy Smith and the defendants were not
deliberately indifferent to Jones’ serious medical need. To the
contrary, Jones admits that they immediately treated his head
wound and transported him to a hospital where he received
treatment from a physician. See Hare v. City of Corinth, 74 F.3d
633, 642 (5th Cir. 1996)(en banc).
The district court did not err when it concluded that Deputy
Smith did not inflict cruel and unusual punishment when he kicked
Jones in the head. The trial testimony indicated that Deputy
Smith accidentally kicked Jones in the head while he was involved
in an altercation with an unruly inmate. At most, Jones
demonstrated mere negligence and not deliberateness on Deputy
Smith’s part. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir.
1996)(holding that there is no liability for mere negligence in a
No. 98-60572
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§ 1983 suit). Deputy Smith did not inflict cruel and unusual
punishment when he forced Jones to lie face down on the prison
floor. By Jones’ admission, he was required to lie down so that
prison officials could search the prison cells for a cigarette
lighter. The action was not intended as punishment and thus does
not support a § 1983 claim. See id. Moreover, the prison cell
searches did not violate Jones’ constitutional rights. See
Montana v. Commissioners Court, 659 F.2d 19, 22 (5th Cir. 1981).
Jones has failed to demonstrate any unconstitutional customs
or practices perpetrated by the DeSoto County Board of
Commissioners. The DeSoto County Board cannot be held liable
under a theory of vicarious liability or respondeat superior.
See Baskin v. Parker, 602 F.2d 1205, 1207-08 (5th Cir. 1979).
The district court did not err when it failed to control or
impeach Michael Morgan’s testimony. Jones had the opportunity to
elicit favorable testimony from Morgan, whom he called to the
witness stand, but Morgan simply had nothing favorable to offer
on Jones’ behalf.
Contrary to Jones’ contention, the magistrate judge was not
required to seek the consent of the parties to conduct a
statutorily authorized 28 U.S.C. § 636(b)(1)(B) hearing. See
Sockwell v. Phelps, 906 F.2d 1096, 1097 (5th Cir. 1990).
Although the district court erred when it denied Jones’ request
for a jury trial, the error was harmless because the evidence
presented at the bench trial could not withstand a motion for
judgment as a matter of a law. See Jennings v. McCormick, 154
No. 98-60572
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F.3d 542, 546 (5th Cir. 1998). Accordingly, the district court’s
judgment is AFFIRMED.