IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41012
Summary Calendar
THOMAS SOSA,
Plaintiff - Appellant,
v.
KEVIN MCKEE, Etc.; ET AL,
Defendants,
KEVIN MCKEE, Correctional Officer; JERRY BODIN, JR.,
Correctional Officer,
Defendants - Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:95-CV-1037
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April 5, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Thomas Sosa (TDCJ #668562) appeals the dismissal of his pro
se and in forma pauperis (IFP) civil rights complaint wherein he
argued that several correctional officers at his prison unit used
excessive force against him. The magistrate judge dismissed the
*
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that this opinion should not be published and is not precedent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. 99-41012
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complaint after a trial in which the jury returned a verdict for
the defendants.
Sosa first argues that the magistrate judge abused his
discretion by failing to hold a final pretrial conference, thus
depriving him of the opportunity to subpoena "key expert
witnesses." However, even assuming that no formal final pretrial
conference was held, Sosa cannot demonstrate reversible error.
Although Sosa’s right to due process includes a right to fully
litigate his case, such right does not necessarily include the
right to a final pretrial conference. Cf. Streber v. Hunter, 221
F.3d 701, 734 (5th Cir. 2000)(right to due process does not
necessarily include right to make closing arguments). Because he
has not shown how the absence of the missing witnesses hampered
his ability to fully and fairly litigate his claim, Sosa has not
shown a denial of due process based on the absence of a formal
final pretrial conference.
Sosa also argues that the magistrate judge denied him a fair
trial and an impartial jury when he refused to allow him to
exercise his peremptory challenges; however, a review of the
trial transcript reveals that after repeated unsuccessful
attempts to get Sosa to exercise the strikes, the magistrate
judge determined that Sosa had waived his right to exercise the
peremptory challenges. The magistrate judge did not deny Sosa
his right to exercise the challenges.
No. 99-41012
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Sosa also argues that the magistrate judge abused his
discretion by denying him appointed counsel. We review the
denial of a motion to appoint counsel for an abuse of discretion.
See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
The record demonstrates that the magistrate judge carefully
considered whether Sosa had the ability to represent himself
after all attempts to retain appointed counsel proved
unsuccessful. He denied Sosa’s request for inmate counsel based
on a valid security concern. No abuse of discretion has been
shown.
Sosa next argues that the magistrate judge should have
granted his request to discover the complete disciplinary records
of the defendants. The magistrate judge denied Sosa’s request as
overbroad, but required the defendants to submit any past
disciplinary records that were based on improper uses of force.
We review the district court’s discovery decisions for an abuse
of discretion. See Krim v. BancTexas Group, Inc., 989 F.2d 1435,
1441-42 (5th Cir. 1993). We will affirm such decisions unless
they are arbitrary or clearly unreasonable. Id.
The magistrate judge’s ruling limiting Sosa’s access to the
defendants’ disciplinary records to those incidents involving
excessive force was a reasonable response to the overbroad
request made by Sosa. Again, no abuse of discretion has been
shown.
No. 99-41012
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Finally, Sosa argues that the magistrate judge abused his
discretion by refusing to allow him to introduce certain portions
of an internal affairs report written in connection with the use-
of-force incident. According to the internal affairs report,
Sosa was being truthful when he denied hitting Officer McKee in
the chest with his fist. We review the district court’s
evidentiary rulings for an abuse of discretion, and we will
reverse on the basis of evidentiary errors only if they resulted
in substantial prejudice. See Thomas v. Texas Dep’t of Criminal
Justice, 220 F.3d 389, 394 (5th Cir. 2000). Even if evidence is
wrongly excluded, such exclusion will be reviewed for harmless
error. See Reddin v. Robinson Prop. Group Ltd. P’ship, 239 F.3d
756, 761 (5th Cir. 2001).
In the instant case, the exclusion of the polygraph
examination did not result in substantial prejudice to Sosa’s
case. The determinative issue was not whether Sosa’s reaction to
McKee could be defined as a "punch" or a "hit," but rather
whether the force exercised by the officers in subduing and
restraining Sosa was unnecessary or wanton. Thus, while it is
arguable that introduction of the polygraph results might have
been helpful to Sosa’s case, it cannot be said that the exclusion
of such resulted in substantial prejudice to Sosa. Any error was
therefore harmless.
The judgment of the district court is AFFIRMED.