Clary v. Stroud, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 30, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40983
Summary Calendar
RANDY GLENN CLARY,
Plaintiff-Appellant,
versus
JAMES STROUD, Sheriff; UNIDENTIFIED KISSINGER;
J. R. KISSINGER, Jailer; UNIDENTIFIED LANGLY, Jailer;
UNIDENTIFIED HOWETH, Sergeant,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-96
--------------------
Before JOLLY, JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
Randy Glenn Clary (TDCJ # 1073341) appeals the magistrate
judge’s dismissal of his 42 U.S.C. § 1983 complaint following a
bench trial. We reject the appellees’ contention that the notice
of appeal was timely only with respect to the denial of the motion
for a new trial. Although it was not filed until later, Clary
submitted his motion for a new trial within 10 days after the entry

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No. 02-40983
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of final judgment. See Houston v. Lack, 487 U.S. 266, 276 (1988).
Accordingly, the time for filing the notice of appeal began to run
from the disposal of the post-judgment motion. See Mangieri v.
Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994).
We find no abuse of discretion in the denial of Clary’s motion
for a continuance, or in the denial of his motion for the
appointment of counsel. See Streber v. Hunter, 221 F.3d 701, 736
(5th Cir. 2000); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982). The magistrate judge did not exclude relevant testimony or
improperly participate in the trial. Nor did the magistrate judge
abuse his discretion in denying the motion for a new trial.
Streber, 221 F.3d at 736.
AFFIRMED.

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