# Brown v. Barnhill

> Court of Appeals for the Fifth Circuit · July 20, 2006 · 191 F. App'x 281

URL: https://www.frixlaw.com/law-library/cases/44660

## Case

- **Full name:** Douglas BROWN, Plaintiff-Appellant, v. Clifford BARNHILL, Etc.; Et Al., Defendants, Lawrence Pattison, Sergeant; Theodore Peacock, Correctional Officer, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 20, 2006
- **Citations:** 191 F. App'x 281
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Smith, Wiener, Owen
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/44660

## Opinion text

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-11364
Summary Calendar

DOUGLAS BROWN,

Plaintiff-Appellant,

versus

CLIFFORD BARNHILL, ETC.; ET AL.,

Defendants,

LAWRENCE PATTISON, Sergeant; THEODORE PEACOCK, Correctional
Officer,

Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
(2:01-CV-411)
--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Douglas Brown, Texas prisoner # 346314,

appeals the district court’s judgment entered in favor of

Defendants-Appellees Lawrence Pattison and Theodore Peacock,

following a jury trial. Brown’s 42 U.S.C. § 1983 claims were based

on allegations that the two defendants acted with deliberate

indifference by failing to protect him from a violent cellmate.

*
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this opinion should not be published and is not precedent except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.
In his appellate brief, Brown does not challenge the district

court’s pre-trial dismissals of his claims against three other

defendants, and he fails to brief an argument that the district

court improperly charged the jury. For the first time in his reply

brief, he contends that the district court abused its discretion by

granting the defendants’ pre-trial motion in limine. Brown has

effectively waived all of these claims by inadequately or untimely

briefing them. See Robinson v. Guarantee Trust Life Ins. Co., 389

F.3d 475, 481 n.3 (5th Cir. 2004); Morin v. Moore, 309 F.3d 316,

328 (5th Cir. 2002); FED. R. APP. P. 28(a)(9).

Brown has also inadequately briefed his contentions that the

district court erred in entering judgment for Pattison and Peacock

because (1) Brown’s affidavit contradicted their testimony, (2) the

facts alleged in his affidavit were “material,” and (3) the

defendants had exercised their peremptory strikes in a racially-

discriminatory manner. See Robinson, 389 F.3d at 481 n.3. In any

event, Brown’s failure to include trial transcripts in the record

on appeal prevents us from reviewing such arguments.

See Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990).

Moreover, the first two of these three arguments reflect

Brown’s confusion about the nature of a jury trial. Inasmuch as

the jury’s verdict was based on the credibility of the trial

witnesses, not its consideration of affidavits, Brown’s argument is

meritless. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

2
Finally, the district court did not abuse its discretion in

denying Brown’s motions for appointment of counsel. See Jackson v.

Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986); Ulmer v.

Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). As Brown has not

established “exceptional circumstances,” his current motion for

appointment of counsel is DENIED. See Ulmer, 691 F.2d at 212.

And, Brown’s motion to supplement the record with additional

evidentiary materials is unavailing and is therefore DENIED.

See United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir. 1995).

AFFIRMED; MOTIONS DENIED.

3

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/44660. Public record. Not legal advice.