Yates v. Stalder , 122 F. App'x 714 ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                December 15, 2004
    Charles R. Fulbruge III
    Clerk
    No. 04-30364
    Summary Calendar
    ROGER D YATES, TRAVIS CARTER, GEORGE MCGUFFEY
    Plaintiffs - Appellants
    v.
    RICHARD STALDER, Secretary
    Defendant - Appellee
    --------------------
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 98-CV-512-B
    --------------------
    Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
    Judges.
    PER CURIAM:*
    Roger D. Yates, Louisiana prisoner #87050, Travis R. Carter,
    Louisiana prisoner #97219, and George D. McGuffey, Louisiana
    prisoner #87708 (the plaintiffs), inmates at the Louisiana State
    Penitentiary (LSP), appeal the grant of summary judgment in favor
    of the defendant in their civil rights suit alleging that their
    equal protection rights had been violated because female inmates
    at the Louisiana Correctional Institute for Women (LCIW) are
    treated better than they.    The plaintiffs argue that their motion
    *
    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    this opinion should not be published and is not precedent except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. 04-30364
    -2-
    for a default judgment should have been granted because the
    prison administration took more than 40 days to answer their step
    2 grievance.    The district court did not abuse its discretion in
    denying the motion for default judgment because the defendant had
    not failed to plead or otherwise defend in the instant action.
    See FED. R. CIV. P. 55; see also Flaksa v. Little River Marine
    Const. Co., 
    389 F.2d 885
    , 887 (5th Cir. 1968).
    The plaintiffs also argue that the American Correctional
    Association (ACA) certificates attached to one of the defendant’s
    pleadings were fraudulent, and they suggest that the original
    certificates be examined by a crime lab.      However, the plaintiffs
    have offered only conclusory allegations to support their
    assertion that the certificates are fraudulent, and the
    certificates were not relied upon by the district court and are
    immaterial to the review of the district court’s judgment.     The
    plaintiffs also argue that the magistrate judge (MJ) denied them
    due process by refusing to order a hearing regarding the
    submission of the alleged fraudulent documents.      The plaintiffs
    were not entitled to have a hearing merely because they requested
    one.    See FED. R. CIV. P. 78; M.D. LA. LOC. R. 78.1.   The
    plaintiffs’ issues with regard to the ACA certificates are
    meritless.
    The plaintiffs also argue that the district court erred,
    committed judicial misconduct, and denied them due process by
    refusing to rule on the objection to the MJ’s ruling that no
    No. 04-30364
    -3-
    hearing as to the authenticity of the ACA certificates was
    required.   The district court was not required to rule on the
    objection because the plaintiffs did not show that the MJ’s
    ruling was clearly erroneous or contrary to law.   See 
    28 U.S.C. § 636
    (b)(1)(A).   Moreover, because the plaintiffs did not explain
    how proving the ACA certificates were false would have created a
    genuine issue of material fact, the court did not abuse its
    discretion by granting summary judgment without considering the
    plaintiffs’ objection to the MJ’s ruling.   See Washington v.
    Allstate Ins. Co., 
    901 F.2d 1281
    , 1285 (5th Cir. 1990).
    The plaintiffs further argue that the MJ committed
    misconduct by erroneously stating that the plaintiffs did not
    allege an Eighth Amendment violation, thereby denying them the
    opportunity to have their Eighth Amendment claim heard.   Even
    assuming that the plaintiffs’ Eighth Amendment claim remained
    viable after their first appeal to this court, by failing to
    include their Eighth Amendment claim in opposing the summary-
    judgment motion, the plaintiffs effectively abandoned that claim.
    See Hargrave v. Fibreboard Corp., 
    710 F.2d 1154
    , 1164 (5th Cir.
    1983).   Consequently, this issue lacks merit.
    The plaintiffs also argue that the MJ denied the truth of
    the plaintiffs’ claim that semi-private rooms exist at LCIW.
    However, the plaintiffs’ complaint was not the existence of
    semi-private rooms at LCIW but the means by which they were
    No. 04-30364
    -4-
    awarded.    Moreover, the MJ found that double and triple occupancy
    cells exist at LCIW.    This issue lacks merit.
    The plaintiffs argue that the district court judge and the
    MJ should have recused themselves.    The plaintiffs have not shown
    that either the district court or the MJ had a personal bias
    against the plaintiffs, and this assignment of error fails.     See
    Liteky v. United States, 
    510 U.S. 540
    , 555 (1994); United States
    v. Couch, 
    896 F.2d 78
    , 81 (5th Cir. 1990); United States v.
    Devine, 
    934 F.2d 1325
    , 1348 (5th Cir. 1991).
    We do not consider the plaintiffs’ argument, raised in their
    reply brief, that inmates at LSP and LCIW are similarly situated.
    See Cinel v. Connick, 
    15 F.3d 1338
    , 1345 (5th Cir. 1994).     The
    plaintiffs’ motions for oral argument and to subpoena records are
    DENIED.    The district court’s judgment is AFFIRMED.