Miles v. West ( 1996 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 95-40718
    Summary Calendar
    JESSE RAY MILES, JR.,
    Plaintiff-Appellant,
    versus
    ROGER WEST ET AL.,
    Defendants-Appellees.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 6:95-CV-90
    - - - - - - - - - -
    July 17, 1996
    Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Jesse Ray Miles, Jr., TDCJ No. 638526, appeals the dismissal
    with prejudice of his 42 U.S.C. § 1983 action following a bench
    trial conducted by the magistrate judge.    The magistrate judge
    did not err by entering a dismissal with prejudice in this action
    instead of a dismissal without prejudice.     See Baris v. Sulpicio
    Lines, Inc., 
    74 F.3d 567
    , (5th Cir. 1996).    Since Miles received
    a bench trial, the magistrate judge obviously construed Miles’
    pleadings to state a claim against the defendants.
    *
    Pursuant to Local Rule 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    that this opinion should not be published and is not precedent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 Local Rule
    47.5.4.
    No. 95-40718
    - 2 -
    The magistrate judge did not err by refusing to appoint
    counsel for Miles.    See Ulmer v. Chancellor, 
    691 F.2d 209
    , 212
    (5th Cir. 1982).   Because Miles participated in the bench trial
    without objecting and reminding the magistrate judge of his jury
    request, he is barred from raising the issue on appeal.     Matter
    of Wynn, 
    889 F.2d 644
    , 646 (5th Cir. 1989).   The defendants did
    not violate Miles’ due process rights by placing him into
    solitary confinement for two months.    See Sandin v. Conner, 
    115 S. Ct. 2293
    , 2300 (1995).   Miles’ appeal is DISMISSED as
    frivolous.    See 5th Cir. R. 42.2.
    We warn Miles that the filing of future frivolous appeals
    will result in sanctions.    E.g., Smith v. McCleod, 
    946 F.2d 417
    ,
    418 (5th Cir. 1991); Jackson v. Carpenter, 
    921 F.2d 68
    , 69 (5th
    Cir. 1991).   If Miles has any other appeals pending in this court
    at this time, he should review them in light of the foregoing
    warning and move to withdraw any appeal that is frivolous.
    APPEAL DISMISSED; SANCTION WARNING ISSUED.