Summary Calendar ARNOLD DAVILA v. JAMES ANDY COLLINS, Etc.

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-4963
Summary Calendar
_____________________
ARNOLD DAVILA,
Plaintiff-Appellant,
v.
JAMES ANDY COLLINS,
Etc., ET AL.,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(91 CV 220)
_________________________________________________________________
September 3, 1993
Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Arnold Davila, a Texas prisoner
currently in the custody of the Texas Department of Criminal
Justice (TDCJ), appeals from the magistrate judge's dismissal of
his pro se, in forma pauperis civil rights complaint. Finding no
reversible error, we affirm.

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I.
On September 22, 1989, Arnold Davila received a disciplinary
report and was placed in pre-hearing detention. TDCJ officials
alleged that Davila had attempted to pass a list of legal
citations to another inmate, David Ruiz, without using authorized
prison mail procedures. Davila was charged with "trafficking and
trading," as well as soliciting a prison official to violate TDCJ
rules. Jerry Hickman was appointed as "counsel substitute" for
Davila and prepared an investigation work sheet regarding the
disciplinary report.
Seven days later, on September 29, TDCJ conducted an initial
disciplinary hearing, at which Davila was present. When Davila
became argumentative, however, the hearing officer excluded him.
The disciplinary hearing was thereafter continued until October
2, 1989, to allow Hickman extra time to question witnesses whose
names had been submitted by Davila.
On October 2, the disciplinary hearing continued without
Davila, but Hickman was present to argue on his behalf. After
hearing evidence from both sides, the hearing officer dropped the
charges of trafficking and trading, but found Davila guilty of
soliciting an officer to violate TDCJ rules. As a result of this
finding, Davila lost his class standing as a State Approved
Trusty III, some good time credit, and, for forty-five days, his
commissary privileges. In addition, he was placed in
administrative segregation for fifteen days.

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1 See Spears v. McCotter 766 F.2d 179 (5th Cir. 1985).
3
On April 19, 1991, Davila filed this pro se, in forma
pauperis action in federal district court pursuant to 42 U.S.C. §
1983. He argued that the disciplinary proceedings held on
September 29 and October 2, 1989, were constitutionally
defective. Among other things, he argued that his due process
rights were violated when he was not allowed to attend the
hearing on October 2, 1989.
The district court referred this matter to a magistrate
pursuant to 28 U.S.C. § 636(b)(1) and (3). Thereafter, at a
Spears hearing1 conducted by the magistrate, the parties
consented to have the matter tried before the magistrate in
accordance with 28 U.S.C. § 636(c). They expressly waived their
right to proceed before a judge of the United States District
Court and agreed that any appeal from the judgment would be
directly to the Court of Appeals.
The magistrate held an expanded evidentiary hearing on
September 24, 1991, which was tantamount to a trial. The parties
were allowed to present evidence, call witnesses, and cross-
examine witnesses from the opposing side. The magistrate judge
then issued a memorandum opinion, in which she concluded that
Davila's claims should be dismissed with prejudice as being
frivolous within the meaning of 28 U.S.C. § 1915(d). The
magistrate judge reasoned that Davila's disruptive behavior at
the first disciplinary hearing justified his exclusion at that
hearing. With regard to the second disciplinary hearing, the

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magistrate held that--even assuming Davila was not offered a
chance to attend the hearing--the exclusion did not rise to the
level of a constitutional violation.
On appeal, this court affirmed in part, vacated in part, and
remanded. We specifically held:
In the absence of a finding that Davila voluntarily
absented himself from the [October 2] evidentiary
hearing, . . . the magistrate judge's conclusion that
the second part of the hearing comported with due
process is flawed. The portion of the order concerning
Davila's opportunity to attend the second part of his
hearing is vacated, and the case remanded, for the
limited purpose of having the court make a finding on
this issue, and in light of that finding, determine
whether the second hearing met due process
requirements.
The magistrate judge complied with our instructions and, on
remand, expressly found--on the basis of the prior evidentiary
hearing--that "Davila was offered an opportunity to attend the
disciplinary hearing on October 2, 1989, but refused to do so."
The magistrate then dismissed Davila's complaint with prejudice,
again holding that it was frivolous pursuant to § 1915(d). This
appeal followed.
II.
Davila raises several arguments on appeal. He argues,
first, that the district court erred in failing to make a de novo
review of the magistrate's memorandum opinion and order. He also
contends that the magistrate erred in assessing his credibility
and erroneously relied on unsworn testimony. For the reasons
discussed below, we reject these arguments.

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Initially, we note that the magistrate judge's dismissal of
Davila's complaint was not, technically speaking, a frivolousness
dismissal pursuant to 28 U.S.C. § 1915(d). The magistrate
judge's decision to dismiss the complaint occurred after an
expanded evidentiary hearing, which, as noted above, was
tantamount to a trial. Indeed, by remanding Davila's due process
claim with regard to the second disciplinary hearing for further
consideration, we effectively recognized that this claim had both
an arguable basis in law and fact. Because it was an arguable
claim, it could not have been dismissed as frivolous within the
meaning of § 1915(d). See Neitzke v. Williams, 490 U.S. 319, 325
(1989) ("[A] complaint, containing as it does both factual
allegations and legal conclusions, is frivolous where it lacks an
arguable basis either in law or in fact."); see also Denton v.
Hernandez, 112 S. Ct. 1728, 1733 (1992) (recognizing that a court
may dismiss a claim as factually frivolous only if the facts
alleged are clearly baseless--a category encompassing allegations
that are "fanciful," "fantastic," and "delusional").
The magistrate's decision dismissing Davila's due process
claim with respect to the second disciplinary hearing is more
appropriately viewed as a decision rendered after a full trial on
the merits. As previously noted, the parties expressly consented
to a trial by the magistrate pursuant to 28 U.S.C. § 636(c).
And, the magistrate's finding with respect to whether Davila was
voluntarily absent from the October 2, 1989 hearing was rendered
only after an expanded evidentiary hearing where the parties were

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permitted to present evidence, testify, and cross-examine
witnesses.
Having clarified the nature of the district court's
dismissal, we now proceed to Davila's arguments on appeal.
Because the magistrate's judgment was entered under 28 U.S.C. §
636(c), we review it under the same standards that we review
judgments entered by a district court. See Gulf States
Enterprises v. R.R. Tway, Inc., 938 F.2d 583, 586 (5th Cir.
1991). That is, "[c]onclusions of law are reviewed de novo and
findings of fact are upheld unless they are clearly erroneous."
Id.
We reject Davila's claim that the district court erred in
not conducting a de novo review of the magistrate's
determination. Because the parties consented to have case tried
before the magistrate, Davila's contention in this regard is
patently without merit. The magistrate's decision to dismiss
Davila's due process claim constitutes, for all practical
purposes, the final judgment of the district court. Moreover,
the parties expressly agreed that any appeal from the
magistrate's judgment would lie with this court--not the district
court. Cf. Mississippi River Grain Elevator, Inc. v. Bartlett &
Co., Grain, 659 F.2d 1314, 1317 (5th Cir. Unit A 1981)
(concluding that the district court did not have to conduct a de
novo review of the magistrate's findings where the parties (a)
elected to submit the matter for decision by a magistrate as a

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2 We note that Davila has not argued that the magistrate
judge, by effectively conducting a bench trial on his due process
claims, deprived him of his Seventh Amendment right to a jury
trial. Had he raised this argument, it would present a serious
question. Admittedly, parties who consent to have their case
tried before a magistrate pursuant to 28 U.S.C. § 636(c) may, at
the same time, waive their Seventh Amendment right to a jury
trial. See, e.g., McCarthy v. Bronson, 906 F.2d 835, 840-41 (2d
Cir. 1990), aff'd, 111 S. Ct. 1737 (1991). But on the facts of
this case, it would be a close question as to whether Davila
waived his right to a jury trial. After all, he requested a jury
trial when he filed his complaint in district court and may well
have been unaware that, when he consented to have the case tried
in front of the magistrate judge, the magistrate was going to
resolve disputed fact issues. Because Davila does not raise this
complaint on appeal, however, we need not decide whether, by
failing to object to the magistrate's decision to conduct a bench
trial, he waived his Seventh Amendment right to a jury trial.
See Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 116 (5th
Cir. 1987).
7
special master and (b) agreed to accept the decision of the
magistrate as the decision of the district court).
As for Davila's argument that the magistrate's credibility
determinations are erroneous, we conclude that it is also without
merit. The magistrate's credibility findings--specifically, her
decisions (a) to credit Hickman's testimony that Davila was
afforded an opportunity to attend the October 2, 1989
disciplinary hearing, and (b) to discredit Davila's testimony to
the contrary--are plausible in light of the record. Therefore,
they are not clearly erroneous. See Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985).2
Finally, we address Davila's contention that the magistrate
judge erred in considering "unsworn testimony from Officer Sharp
indicating that [Davila] had refused to attend the second part of
the disciplinary proceeding." In this regard, Davila appears to

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be challenging Hickman's testimony that Sharp unsuccessfully
attempted to escort Davila from his cell to the October 2
disciplinary hearing, as well as an inter-office communication
signed by both Sharp and Hickman, which indicated that Davila
voluntarily refused to attend the October 2 disciplinary hearing.
Sharp did not personally testify at any of the hearings conducted
by the magistrate judge.
We conclude that the magistrate judge did not commit
reversible error by considering Hickman's testimony or the inter-
office communication signed by Sharp and Hickman. Davila did not
object to Hickman's testimony regarding Sharp's effort to bring
him to the hearing; and we are unable to conclude that the
admission of this evidence rises to the level of plain error.
Moreover, even though Davila objected to the inter-office
memorandum signed by Sharp and Hickman on hearsay grounds, we
cannot say that the magistrate's decision to admit and consider
the evidence warrants reversal. Even if we assume arguendo that
it was error for the magistrate to admit the inter-office
memorandum, the error was harmless in light of Hickman's
testimony that, when he personally went to Davila's cell and
asked him to attend the October 2 disciplinary hearing, Davila
refused.
III.
As the above discussion indicates, the magistrate judge did
not clearly err in finding that Davila voluntarily chose not to

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attend the October 2, 1989 disciplinary hearing. On these facts,
the magistrate judge correctly concluded that Davila's due
process rights were not violated. See Moody v. Miller, 864 F.2d
1178, 1180 (5th Cir. 1989). We therefore AFFIRM the magistrate
judge's decision dismissing Davila's § 1983 complaint.

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