* 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that this opinion should not be published and is not precedent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 THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-40402

Summary Calendar

 

AARON HEITMAN,

Plaintiff-Appellant,

versus

RICK EDWARDS; RICHARD

CARROLL; JON MCCARTY;

GOVERNING BOARD OF

CITY OF ALLEN, TEXAS,

Defendants,

RICK EDWARDS; RICHARD

CARROLL; GOVERNING BOARD

OF CITY OF ALLEN, TEXAS,

 Defendants -Appellees.

- - - - - - - - - -

Appeal from the United States District Court

 for the Eastern District of Texas

USDC No. 4:95-CV-141

- - - - - - - - - -

January 20, 1998

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Aaron Heitman has appealed from the district court’s order

granting the defendants’ motion for summary judgment on the issue

whether defendant Edwards arrested him without probable cause. 

Heitman failed to come forth with admissible material evidence
No. 97-40402

-2-

controverting the evidence presented by the defendants showing

that Officer Edwards had probable cause to believe that Heitman

had provided the officer with a false identity and that Heitman

had witnessed a crime. Therefore, the district court did not err

in granting the defendants’ summary-judgment motion on the

probable-cause issue. Heitman’s argument that the district court

erred in denying his motion for reconsideration of the issue is

without merit because Heitman did not present any additional

admissible evidence that warranted a reversal of the initial

determination.

Heitman argues that the district court erred in instructing

the jury that it had determined that Edwards had probable cause

to make the arrest and that the jury was not to determine that

issue. Because Heitman did not object to the instruction in the

district court, the issue is subject to plain-error review only. 

Because we have found that the district court properly granted

summary judgment on the probable-cause issue, it did not plainly

err in instructing the jury that it was not within its province

to determine such issue. 

Heitman argues that the district court erred in giving the

defendants’ requested instruction on a defense which Heitman

contends was initially raised at the jury-charge conference. 

In charging the jury on the defense of qualified immunity which

had been raised by the defendants in their pleadings, the

district court properly instructed the jury on the law governing
No. 97-40402

-3-

an officer’s use of force in the course of making an arrest. The

instruction was necessary to assist the jury in determining

whether the officer’s action was objectively reasonable under the

law. See Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997).

Heitman argues that the district court abused its discretion

in refusing to allow him to introduce a tape recording of a 911

call made to the police complaining about the conduct of Officer

Edwards. He argued that this evidence would have shown that the

supervisory officials had knowledge of Edwards’ misconduct. This

issue was rendered moot based on Heitman’s failure to show that

Edwards’ conduct constituted a violation of his constitutional

rights. 

Heitman argues that the district court erred in not allowing

him to introduce evidence of other complaints of the use of

excessive force by Edwards. Heitman was permitted to introduce

evidence of other complaints through the testimony of two

witnesses. Heitman cannot complain about the district court’s

exclusion of other evidence of complaints because Heitman failed

to comply with the district court’s known requirements for the

admission of such evidence. 

Heitman has waived his argument that the district court

erred in instructing the jury that Officer Edwards had probable

cause to arrest one of the witnesses who testified that Edwards

had employed excessive force against her in the course of her

arrest. Heitman failed to provide this court with any record
No. 97-40402

-4-

citations to support this argument or to show that it was raised

in the district court. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th

Cir. 1994).

Heitman argues that the district court erred in awarding the

defendants court costs as the prevailing parties in the case

because they engaged in acts of misconduct during the course of

the district court proceedings. Based on the record presented,

the district court did not abuse its discretion in awarding the

defendants the court costs. See Salley v. E.I. DuPont de Nemours

& Co., 966 F.2d 1011, 1017 (5th Cir. 1992). 

The defendants’ motion to strike volume 5 of the appeal

record is GRANTED. United States v. Flores, 887 F.2d 543, 546

(5th Cir. 1989).

AFFIRMED.