* 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that this opinion should not be published and is not precedent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. 95-40508

Summary Calendar

__________________

MARIO A. YARRITO,

 Plaintiff-Appellant,

versus

CHARLIE M. PAGE, Correctional Officer,

JERRY W. HUGHES, Correctional Officer,

TERRY W. FAGAN, Correctional Officer,

CARL E. LUCAS, JR., Correctional Officer,

JEFFREY A. COOK, Correctional Officer,

SANDY R. JOHNSON, Sergeant,

DAVID E. KERSH, Sergeant,

 Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:94-CV-8

- - - - - - - - - -

January 15, 1996

Before REAVLEY, SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Texas prisoner Mario A. Yarrito appeals the dismissal of his

civil rights complaint following an evidentiary hearing before a

magistrate judge conducted pursuant to Flowers v. Phelps, 956

F.2d 488 (5th Cir.), modified in part on other grounds, 964 F.2d

400 (5th Cir. 1992). Yarrito contends that the district court
2

erred in finding that defendants did not use excessive force or

retaliate against him; that it erred in finding defendants immune

from suit; that it denied him adequate discovery; that it erred

in declining to subpoena two eyewitnesses to testify; and that

the absence of three of the defendants from his evidentiary

hearing violated his Sixth Amendment rights to confrontation and

cross-examination. We affirm.

Yarrito claims that he was subjected to a beating by seven

prison officers in retaliation for or to dissuade him from filing

any more grievances. Yarrito and witnesses who testified on his

behalf at the hearing gave an account of the incident that was

very different from the account given by defendants. The

magistrate, with an opportunity to weigh the credibility of the

witnesses, made numerous fact findings. Among these findings,

the magistrate concluded that Yarrito initiated a scuffle by

yelling at and attempting to kick defendant Hughes, that

defendants Page and Hughes then placed Yarrito on the floor and

put leg irons on him in order to subdue him, that Yarrito

suffered a scratch on his forehead, that four of the defendants

were not involved in the incident in any way, and that the other

three did not retaliate against Yarrito in any way.

Where, as here, the district court has reviewed and adopted

the fact findings of the magistrate, our review of those findings

on appeal is limited to whether the findings are clearly

erroneous. E.g. Johnson v. Collins, 964 F.2d 1527, 1536 (5th

Cir.), cert. denied, 113 S. Ct. 4 (1992); McInerney v. Puckett,
3

919 F.2d 350, 352 (5th Cir. 1990). Particularly where essential

fact findings turn on the finder of fact’s credibility

determinations, we are loath to overturn such findings under the

clearly erroneous standard of review. "`An appellate court is in

no position to weigh conflicting evidence and inferences or to

determine the credibility of witnesses; that function is within

the province of the finder of fact.'" United States v. Samples,

897 F.2d 193, 198 (5th Cir. 1990) (citations omitted). We cannot

say that the magistrate’s fact findings are clearly erroneous.

When considering an excessive-force claim, "the core

judicial inquiry is . . . whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm." Hudson v. McMillian, 112 S. Ct.

995, 999 (1992). Given the fact findings of the magistrate, the

magistrate and district court below properly concluded as a

matter of law that Yarrito had not suffered a violation of his

Eighth Amendment rights. Page and Hughes were justified in using

minimal force against Yarrito to maintain discipline and ensure

that he would not kick them.

Yarrito argues that the court below erred in finding that

the defense of qualified immunity shields defendants from

liability. Before conducting a qualified immunity analysis, the

court as a threshold matter must first decide whether a violation

of a constitutional right has occurred. E.g. White v. Taylor,

959 F.2d 539, 545 n.4 (5th Cir. 1992) (first step in qualified

immunity analysis is “whether the plaintiff has asserted a
4

violation of a constitutional right at all.”); Quives v.

Campbell, 934 F.2d 668, 670 (5th Cir. 1991). Since we find no

error in the lower court’s determination that no Eighth Amendment

violation occurred, we need not reach the question of whether

Yarrito’s claim should also fail because defendants are entitled

to qualified immunity.

We also hold that the denial of Yarrito's discovery requests

was not an abuse of discretion, see Richardson v. Henry, 902 F.2d

414, 417 (5th Cir.), cert. denied, 498 U.S. 901 (1990), and cert.

denied, 498 U.S. 1069 (1991); that the refusal to subpoena

prisoners Silva and Steel to testify was not an abuse of

discretion, see Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir.),

cert. denied, 471 U.S. 1126 (1985); and that the absence of three

of the defendants from the evidentiary hearing did not violate

Yarrito's Sixth Amendment rights to confrontation and crossexamination, as those rights do not apply to civil hearings. See

Woolsey v. National Transp. Safety Bd., 993 F.2d 516, 521 (5th

Cir. 1993), cert. denied, 114 S. Ct. 1829 (1994).

AFFIRMED.