IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10306
Summary Calendar
DANTE D’AGOSTINO,
Plaintiff-Appellant,
versus
NFN BAKER, Officer; ET AL,
Defendants,
NFN BAKER, Officer, Correctional Officer III;
C. HARTNESS, Correctional Officer III,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:96-CV-377
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September 24, 2001
Before DAVIS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Dante D’Agostino, Texas prisoner # 688309, appeals the jury
verdict rendered in favor of the defendants after a trial on his
42 U.S.C. § 1983 complaint alleging the excessive use of force
against him by the defendants. D’Agostino’s appeal stems from
several rulings made by the magistrate judge presiding by consent
at his pre-trial hearing.
*
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that this opinion should not be published and is not precedent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. 00-10306
-2-
The exclusion of testimony, or of other evidence, is
reviewed for an abuse of discretion. United States v. Pace, 10
F.3d 1106, 1115 (5th Cir. 1993). This court will affirm an
evidentiary ruling unless the district court abused its
discretion and the appellant’s substantial rights were affected.
United States v. Phillips, 219 F.3d 404, 409 (5th Cir. 2000).
D’Agostino first complains that the magistrate judge erred
in failing to issue a writ of habeas corpus ad testificandum to
produce an inmate witness at trial. Because D’Agostino’s
objection, made on the morning of trial, was untimely, the
magistrate judge did not abuse its discretion in failing to issue
the writ. See Pace, 10 F.3d at 1115.
In his brief, D’Agostino also asserts that he requested that
the trial be postponed until Shaw could be produced. However,
the transcript of the pre-trial hearing shows that he made no
such request. Therefore, review is only for plain error.
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1527
(5th Cir. 1996) (en banc). This court “will not substitute [its]
judgment concerning the necessity of a continuance for that of
the district court unless the complaining party demonstrates that
it was prejudiced by the denial.” Streber v. Hunter, 221 F.3d
701, 736 (5th Cir. 2000). Because he has failed to provide this
court with an affidavit from the inmate witness, or any other
evidence, to show what testimony the inmate witness would have
given, and because the inmate witness’ testimony from the first
trial was inconclusive, D’Agostino has failed to demonstrate
prejudice. Streber, 221 F.3d at 736.
No. 00-10306
-3-
D’Agostino next argues that the magistrate judge erred in
failing to have the defendants produce original photos of the
use-of-force incident. He argues that the copies provided to him
were grainy and that he was only given copies of three photos
when five were actually taken. The record reflects that
D’Agostino could have resolved these issues prior to the morning
of trial. Because D’Agostino’s objections were untimely, the
magistrate judge did not abuse its discretion in proceeding to
trial without ordering the production of all of the original
photos. See United States v. De La Rosa, 171 F.3d 215, 219 (5th
Cir. 1999).
Finally, D’Agostino argues that the magistrate judge erred
in refusing to honor his request for blank, signed subpoena forms
in accordance with FED. R. CIV. P. 45(a)(3). Because D’Agostino
did not raise this issue in the district court, it is reviewed
only for plain error. See Douglass, 79 F.3d at 1427. D’Agostino
has not demonstrated that his substantial rights were affected
because he has failed to provide evidence to this court
indicating what the testimony of any missing witness would have
been. See Highlands Ins. Co. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, 27 F.3d 1027, 1031-32 (5th Cir. 1994).
D’Agostino has filed in this court a motion to strike the
appellees’ letter brief. He contends that they are incorrect in
asserting that he failed to preserve the inmate witness issue for
review. The appellees are entitled to argue their belief that
D’Agostino has failed to brief a certain issue.
AFFIRMED. MOTION TO STRIKE DENIED.