* 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that this opinion should not be published and is not precedent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. 97-60780

Summary Calendar

 

KENNETH F. RABALAIS,

Plaintiff-Appellant,

versus

DAVID MARTINAZE; THOMAS L. POWELL; JOE MAC, 

Sergeant; CORKIE HOEDA; GAIL, Nurse,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:96-CV-97-BrRR

--------------------

February 3, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Kenneth Rabalais, Mississippi prisoner # 49942, challenges a

judgment in favor of defendants following a nonjury trial on his

in forma pauperis 42 U.S.C. § 1983 lawsuit alleging cruel and

unusual punishment, denial of medical needs, and denial of

various amenities.

Rabalais first argues that he should have received a jury

trial. He did not request a jury trial within ten days of filing 
No. 97-60780 

-2-

his complaint, so he waived that right. FED. R. CIV. P. 38(b),

(d). After waiver “the court in its discretion upon motion may

order a trial by jury of any or all issues.” FED. R. CIV. P.

39(b). Rabalais has not shown the district court abused its

discretion in denying his tardy motion for a jury trial.

Rabalais challenges the district court’s denial of appointed

counsel. This ruling was not an abuse of discretion because

Rabalais has not shown “exceptional circumstances” warranting the

appointment of counsel in a civil rights lawsuit. Jackson v.

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

and internal quotations omitted).

Rabalais maintains that the trial court erred in denying his

motion to amend the witness and exhibit list. His motion was

made more than three months after the Scheduling Deadline date. 

Under MISS UNIF. CT. R. 7.2(K), an untimely motion may be denied

solely for that purpose. Moreover, Rabalais has not shown he was

harmed by the failure to admit the requested witnesses and

exhibits. His contention is without merit.

Rabalais asserts that court officials tampered with his

witnesses to make them testify contrary to the truth. This

allegation was not raised before the district court and runs

counter to his assertions that the magistrate judge’s bias was

not intentional. The issue is facially frivolous.

Rabalais argues that the magistrate judge improperly failed

to give perjury instructions to the witnesses before they

testified, and as a result defense witnesses perjured themselves

on the stand. The issue was not raised in the district court, so
No. 97-60780 

-3-

review is for plain error. Douglass v. United Servs. Auto.

Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996)(en banc). Rabalais’s

only evidence that perjury was committed was that defense witness

testimony conflicted with his own. This is more a challenge to

credibility, which will not be disturbed by an appellate court. 

Martin v. Thomas, 973 F.2d 449, 453 n.3 (5th Cir. 1992).

Rabalais asserts that a default judgment should have been

entered against defendant David Martinaze because he never filed

an answer or appeared in the case. Martinaze was never served. 

Although Rabalais was given a last known address for Martinaze by

the defense, he did not try to serve Martinaze at that new

address. He has not shown that the court abused its discretion

by failing to enter a default judgment and by dismissing

Rabalais’s claims against Martinaze.

Rabalais contends that the district court erred by failing

to grant him a certificate of probable cause (CPC) and by failing

to rule on his claim of double jeopardy. A CPC is not necessary

in a § 1983 cause of action. To the extent Rabalais’s doublejeopardy claim was properly before the court, there was no error

in the failure to rule upon it because Rabalais had not shown

that he had exhausted state remedies on this habeas issue. See

Preiser v. Rodriguez, 411 U.S. 475, 484, 488-97 (1973).

Rabalais also asserts that the district court’s judgment

against him was biased and contrary to the evidence presented at

trial. Rabalais has failed to provide a transcript, so the

merits of his assertions cannot be reviewed. See Richardson v.

Henry, 902 F.2d 414, 416 (5th Cir. 1990). 
No. 97-60780 

-4-

Because Rabalais’s appeal is without arguable merit, it is

frivolous and must be dismissed. See Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983). This dismissal of a frivolous

appeal constitutes one strike against him for purposes of 28

U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388

(5th Cir. 1996). If two other district court actions or appeals

filed by Rabalais are dismissed as frivolous, he will be barred

from bringing a civil action or appeal as a prisoner proceeding

in forma pauperis unless he is under imminent danger of serious

physical injury. See § 1915(g). Rabalais should review any

pending complaints or appeals to ensure that they do not raise

frivolous issues.

Rabalais has moved for leave to file an out-of-time reply

brief. This motion is GRANTED.

APPEAL DISMISSED AS FRIVOLOUS. 5TH CIR. R. 42.2. MOTION

GRANTED.