* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-40659

Summary Calendar

 

THOMAS EDWARD RODRIGUEZ

Plaintiff - Appellant

 v.

JACKIE W COLEMAN; EDWARD E SIMON; RONNIE D GATEWOOD; HAROLD

W GARROW

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:94-CV-768)

_________________________________________________________________

July 9, 1996

Before KING, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Thomas Edward Rodriguez appeals the district court’s

judgment in favor of the defendants in his civil rights complaint

under 42 U.S.C. § 1983. Rodriguez’s complaint alleged that four

corrections officers conspired to retaliate against him for a

prior grievance he had filed against one of them. On appeal,

Rodriguez raises three issues: whether the district court erred

in holding a bench trial rather than a jury trial; (2) whether 
2

the district court erred in denying Rodriguez’s discovery

requests; and (3) whether the district court erred in concluding

that the defendants were entitled to qualified immunity. We

address these issues in turn. 

Rodriguez asserts that the district court erred in holding a

bench trial because the defendants had moved for a jury trial. 

However, after defendants withdrew their demand for a jury trial

and the district court scheduled a bench trial, Rodriguez neither

requested a jury trial or objected during the bench trial to the

absence of a jury. “A party who participates in the

determination of the issues--without objecting and reminding the

court of its jury request--is barred from later raising the issue

on appeal.” In re Wynn, 889 F.2d 644, 646 (5th Cir. 1989); see

also Cooper v. Loper, 923 F.2d 1045, 1049 (3rd Cir. 1991) (noting

general rule among courts of appeals that “participation in a

bench trial without objection constitutes waiver of the jury

trial right”). Because Rodriguez neither requested a jury trial

or objected to the bench trial, we find that he is barred from

raising this issue on appeal.

Rodriguez argues that the district court erred in denying

his request for production of documents. It is well-settled that

discovery matters are entrusted to the sound discretion of the

district court. Richardson v. Henry, 902 F.2d 414, 417 (5th Cir.

1990), cert. denied, 498 U.S. 1069 (1991). Discovery rulings are

reviewed for abuse of this discretion. United States v. Deisch,

20 F.3d 139, 154 (5th Cir. 1994). They will be reversed only
3

when they are arbitrary or clearly unreasonable. Mayo v.

Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986). In

this case, the district court denied Rodriguez’s motion for

request of production as being untimely because it was filed

prematurely. The documents that Rodriguez asserts were not

disclosed were his medical records, a diagram of building C-pod,

and the activity sheet for the recreation and shower areas. The

medical records were introduced at trial. Rodriguez’s assertion

that he needed the building diagram and the activity sheet is not

adequately supported in his brief. Nor is it shown that

Rodriguez suffered any prejudice from the lack of disclosure of

these documents. We find that the district court’s denial of

Rodriguez’s request for production of documents was not an abuse

of discretion.

Rodriguez contends that the district court erred in

concluding that the defendants were entitled to qualified

immunity. Rodriguez’s § 1983 complaint alleged that, by being

deliberately indifferent to his safety, the defendants violated

Rodriguez’s Eighth Amendment right to protection from violence at

the hands of another prisoner. See Farmer v. Brennan, 114 S.

Ct. 1970, 1979-80 (1994). The district court concluded that the

defendants were entitled to qualified immunity because it

determined that Rodriguez did not prove a constitutional

violation. See Schultea v. Wood, 27 F.3d 1112, 1115 (5th Cir.

1994) (indicating that finding “plaintiff has asserted a

violation of a constitutional right” is a prerequisite to
4

defeating a qualified immunity defense), aff’d in part and rev’d

in part on other grounds on reh’g en banc, 47 F.3d 1427 (5th Cir.

1995). The district court reached this determination based on

the testimony adduced at trial and its findings of fact derived

from that testimony. “Findings of fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of

the trial court to judge of the credibility of the witnesses.” 

Fed. R. Civ. P. 52(a). Accordingly, “[w]hen a trial judge’s

finding is based on his decision to credit the testimony of one

of two or more witnesses, each of whom has told a coherent and

facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can

virtually never be clear error.” Anderson v. City of Bessemer

City, 470 U.S. 564, 575 (1985). We conclude that the district

court was not clearly erroneous in finding that the defendants

were entitled to qualified immunity because they were not

deliberately indifferent to Rodriguez’s safety. 

For these reasons, we AFFIRM the judgment of the district

court.