Harvey v. Maxey ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20968
Conference Calendar
LOUIS HARVEY,
Plaintiff-Appellant,
versus
KATHY MAXEY; VELMA MONCADA; JOHN JETER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-4196
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Louis Harvey, Texas prisoner # 653560, appeals from the
district court's dismissal of his 42 U.S.C. § 1983 complaint as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). We review the
dismissal of a prisoner's complaint as frivolous for abuse of
discretion. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999).
*
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that this opinion should not be published and is not precedent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. 01-20968
-2-
Harvey argues that during a hearing conducted pursuant to
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the district
court denied him the appointment of counsel and entertained
unsworn testimony from defense witnesses. We decline to review
Harvey's appointment of counsel claim due to inadequate briefing.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
When conducting a Spears hearing, a district court must
ensure that all evidence is authentic and reliable, and witnesses
should be sworn. See Wilson v. Barrientos, 926 F.2d 480, 483
(5th Cir. 1991). The record before us is unclear as to whether
the defense witnesses gave unsworn testimony or, as defendants
claim, were sworn in at the beginning of the day's proceedings.
Nevertheless, we conclude that Harvey's medical records support
the district court's finding that the defendants were not
deliberately indifferent and that any error was harmless. See
Norton v. Dimazana, 122 F.3d 286, 292-93 (5th Cir. 1997);
Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995); Farmer
v. Brennan, 511 U.S. 825, 837 (1994).
Harvey argues in his reply brief that the district court
failed to give him an opportunity to cross-examine the witnesses
at the Spears hearing. Because we do not consider claims raised
for the first time in a reply brief, we do not address this
issue. See United States v. Prince, 868 F.2d 1379, 1386 (5th
Cir. 1989).
AFFIRMED. ALL OUTSTANDING MOTIONS ARE DENIED.