UNITED STATES COURT OF APPEALS for the Fifth Circuit

_____________________________________

No. 94-41167 Summary Calendar _____________________________________

BILLY WAYNE HORTON,

Plaintiff-Appellant,

VERSUS

JANIE COCKRELL, ET AL.,

Defendants-Appellees.

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Appeal from the United States District Court for the Eastern District of Texas 92-CV-465 ______________________________________________________

November 13, 1995 Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:1

Horton challenges the dismissal of his

complaint following a Flowers2 hearing conducted by the magistrate

pursuant to

(b)(l)(B) and the adoption of the

magistrate's recommendation. We find no error and affirm.

1 Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. 2 Flowers v. Phelps,

(5th Cir.), modified on other grounds,

(5th Cir. 1992). I.

Billy Wayne Horton, a Texas Department of Criminal Justice

(TDCJ) prisoner, filed a

complaint alleging that

he was subject to constant threats of violence while housed at the

Beto I Unit. He alleged that white inmates were subject to

extortion by black and hispanic inmates. Horton further alleged

that the threats were reported to defendant Warden Cockrell and

that she refused to take any action to end the threats.

The magistrate judge scheduled a Spears3 hearing. Following

the hearing, Horton filed a motion for leave to file a supplemental

complaint, alleging that he had been repeatedly assaulted since

filing his complaint. The magistrate judge denied this motion.

The magistrate judge recommended that Horton's complaint be

dismissed as frivolous and that Horton's motion to proceed in forma

pauperis (IFP) be denied. The district court adopted the

recommendation and dismissed the complaint. Horton appealed the

dismissal, and this court, in an unpublished opinion, vacated the

district court's order in part and remanded the case for further

proceedings.

Following remand, the magistrate judge granted Horton's motion

to file a supplemental complaint and directed the defendants to

respond. In his supplemental complaint, Horton alleged that he had

notified defendants Glimp and Ramirez that he had been threatened

with the use of force by inmate Alcorn unless he paid extortion

money. Horton contended that he was assaulted a few days later by

3 Spears v. McCotter,

(5th Cir. 1985).

2 Alcorn and some other black inmates because he refused to pay the

extortion money. Horton also alleged that he was threatened and

assaulted by a black inmate after being moved to the Bill Clements

Unit of TDCJ.

The magistrate judge recommended that the claims regarding

incidents at the Clements Unit be severed and transferred to the

Northern District of Texas, where the incidents had occurred. The

district court adopted the magistrate judge's recommendation and

transferred the claims concerning the Clements Unit.

After the defendants filed an answer, the magistrate judge

scheduled an "expanded evidentiary hearing" pursuant to Flowers and

directed the parties to submit a witness list and a brief summary

of the proposed testimony of each witness. The defendants filed a

Notice of Disclosure, stating that they had provided Horton with

the required information under the Civil Justice Expense and Delay

Reduction Plan pursuant to the Civil Justice Reform Act of 1990.

Horton submitted a list of three witnesses. The magistrate

judge ordered the marshal to produce two of the three listed

witnesses at the hearing. After Horton presented his witnesses at

the hearing, the defendants moved for a dismissal of the case,

arguing that Horton had not proved that any of the defendants had

violated his rights.

At the close of the hearing, Horton made an inquiry about how

further discovery in the case would be conducted. The magistrate

judge stated that she would be issuing a recommendation to the

district court and advised Horton that the hearing had "basically

3 been [his] trial." Horton stated that he had understood that the

magistrate judge was merely holding a hearing and expressed

surprise that he would not be having a jury trial. The magistrate

judge responded that he had not requested a jury trial when he had

the opportunity. Horton objected on the basis that he had not

consented to the trial before the magistrate judge. The magistrate

judge agreed that he had not consented to having her try the case,

but stated that he had agreed to appear before the district court

and that she would be making a report to the district court.

Following the hearing, Horton filed a motion for new trial or,

alternatively, a motion to reopen the case. Horton argued that he

had not been notified that a "trial" was to be held and that he had

not prepared for trial. The magistrate judge granted Horton's

motion to the extent that she allowed him to submit additional

evidence which was relevant to the incidents occurring at the Beto

I Unit.

Horton filed a motion to conduct additional discovery. He

sought to obtain a videotape recorded in the prison on the day that

he was assaulted and the disciplinary records of the inmates who

had assaulted him. The magistrate judge ordered the defendants to

provide Horton with a copy of the videotape, but denied Horton's

request to obtain the disciplinary histories of the inmates who

attacked him. The defendants advised the magistrate judge that

they had provided the tape to Horton.

Horton filed a motion to compel discovery, alleging that he

had not received the tape. He subsequently filed a second motion

4 to compel discovery, arguing that the defendants had not shown him

the entire tape. The defendant responded that Horton viewed the

only tape that exists regarding the alleged assault incident. The

magistrate judge denied Horton's motion to compel and his second

motion to compel.

Horton then filed a motion to recuse the magistrate judge from

further proceedings in the case, arguing that she summarily denied

his motions without investigation and did not provide sufficient

reasons for denying the motions. Horton also filed a motion for

sanctions against the defendants based on their failure to comply

with discovery orders. He contended that the defendants erased

portions of the requested videotape in violation of prison

regulations.

Horton also filed a jury demand. He argued that he is

entitled to a jury trial because he had not been notified that the

hearing would be his trial. Horton also filed a motion to change

discovery tracks so that he could conduct further discovery in the

case. The magistrate judge denied Horton's motions for recusal,

sanctions, to change discovery tracks, and his request for a jury

trial.

The magistrate judge recommended that the case be dismissed

with prejudice. The magistrate judge determined that the

defendants did not have knowledge that Horton was exposed to an

excessive risk of harm to his health and safety. Horton filed

objections to the recommendation. The district court adopted the

5 magistrate judge's recommendation and dismissed the complaint with

prejudice.

II.

A.

Horton argues first that the magistrate judge did not have

jurisdiction to conduct a trial because he did not consent to her

doing so pursuant to

(c)(1). Consent under §

636(c)(1) is required only when the magistrate judge is to both

conduct the proceedings and enter the judgment.

Title

(b)(1)(B) provides that "a judge may also

designate a magistrate to conduct hearings, including evidentiary

hearings, and to submit to a judge of the court proposed findings

of fact and recommendations for the disposition . . . of prisoner

petitions challenging conditions of confinement." In Flowers,

, a hearing was conducted pursuant to § 636(b)(1). The

procedure followed in Flowers is acceptable unless the plaintiff

has properly demanded a jury trial.4 See Archie v. Christian,

(5th Cir. 1987). Because, as discussed below,

Horton did not make a timely demand for a jury trial, the

magistrate judge had the authority to conduct the evidentiary

hearing and to submit proposed findings of fact and a dispositional

recommendation to the district court. Horton, however, has not

4 Horton argues that he was entitled to a trial by jury although he failed to make a jury demand in a timely manner as required by Fed. R. Civ. P. 38(b). Horton argues that the delay was excusable because he was not aware that the evidentiary hearing would be the "trial" of the case.

6 argued that the denial of his jury demand is grounds for reversal,

thus we need not give this argument further consideration.

B.

Horton argues that the magistrate judge should have granted

him a new trial rather than just allowing him to present additional

documentary evidence. He argues that he was entitled to the new

trial because he was not aware that the evidentiary hearing would

be his "trial."

The denial of a motion for new trial will be reversed only if

there is a clear showing of an abuse of discretion. Dawsey v. Olin

Corp.,

(5th Cir. 1986). With respect to

Horton's argument that the magistrate judge failed to notify him

that the hearing would be the "trial" of the case, the scheduling

order correctly described the proceeding as an expanded evidentiary

hearing pursuant to Flowers. The order directed the parties to

provide a witness and exhibit list to the court and did not advise

the parties that they were required to make only a prima facie

case. Any omission to more adequately warn Horton that this

hearing would be his only opportunity to present evidence was

harmless since the magistrate judge permitted Horton to submit

additional evidence after the hearing was completed.

In his motion for new trial, Horton complained that he was not

given the opportunity to present evidence of general grievances

that he had filed about the constant threat of violence at the Beto

I Unit, evidence of incidents that occurred at the Clements Unit,

7 and a videotape recorded at the prison on the date that Horton was

attacked by several black inmates.

The magistrate judge allowed Horton to submit the grievances

into evidence after the hearing. The magistrate judge also ordered

the defendants to provide Horton with the requested videotape.

Defense counsel responded in a letter that he had reviewed the tape

and determined that it did not show the altercation between Horton

and the other inmates although it showed the inmates being

processed after the incident was over. Horton filed a motion to

compel the production of the entire tape. Defense counsel

responded that the TDCJ officials advised that the videotape

produced was the only tape existing regarding the incident involved

in the suit. Thus, Horton could not have obtained further evidence

from the tape even if he had received a new trial.

Horton also argued in his motion that he wished to present

evidence of incidents occurring at the Clements Unit to show that

proper procedures were not followed by prison officials. The

magistrate judge specifically precluded Horton from introducing

evidence of the incidents occurring at the Clement Unit. Thus, she

would not have admitted such evidence at a second hearing.

Further, this ruling was not an abuse of discretion because the

manner in which incidents were addressed by officials at the

Clements Unit was not relevant to the procedures followed at the

Beto I Unit.

Horton also argued in his motion that he would seek discovery

of inmate Alcorn's prior disciplinary history because he believed

8 that prison officials knew that Alcorn had assaulted and/or

extorted other inmates. He argues that such evidence would have

shown that Alcorn should have been segregated from the other

inmates. If Horton was correct with respect to the content of

Alcorn's disciplinary history, such evidence may have led to the

discovery of relevant evidence of Alcorn's proclivity to assault

inmates, but it would not have established that the prison

officials had knowledge that Alcorn was a particular threat to

Horton. Thus, even if Horton was not afforded the opportunity to

discover this evidence, it was not an abuse of discretion to refuse

to grant a new trial on that basis.

Horton also argued in his motion for new trial that he had

intended to file a motion for class certification because it would

then have been easier to obtain evidence that every white inmate is

assaulted. He also contended that he would have filed a motion for

the appointment of counsel to represent the class. Because Horton

failed to prove his substantive "failure to protect" allegations,

the issue whether the action was suitable for class certification

is moot as is his motion for appointment of counsel to represent

the class.

C.

Horton argues next that the magistrate judge abused her

discretion in severing and transferring his claims that concerned

incidents occurring in the Clements Unit. Horton argues that his

claims concerning the Clements Unit were better documented than the

Beto I claims and would show a pattern of violence and deliberate

9 indifference to security occurring throughout the prison system.

A district court may sua sponte transfer a case to any other

district where the suit might have been brought for the convenience

of the parties and in the interests of justice.

(a); Mills v. Beech Aircraft Corp.,

(5th Cir.

1989). "Decisions to effect 1404 transfers are committed to the

sound discretion of the transferring judge, and review of a

transfer is limited to abuse of that discretion." Mills,

(internal quotations and citation omitted).

The Bill Clements Unit is in Amarillo, Texas, which is located

within the jurisdiction of the district court in the Northern

District of Texas. See

(a)(5). Horton alleged that

the prison officials in the Clements Units did not protect him from

an assault by a black inmate although he had reported threats made

against him by the inmate. The district court did not abuse its

discretion in transferring these claims to the Northern District

because the incidents occurred there and the defendant prison

personnel were also presumably located in that district.

D.

Horton argues that his motion to recuse the magistrate judge

should have been granted because the magistrate judge is

predisposed to rule against prisoners. Horton has not alleged the

existence of any bias resulting from an extrajudicial source.

Horton's bias argument is based on allegations of consistent

rulings of the magistrate judge against him in the instant

proceeding. Adverse rulings in a case, without more, are not

10 sufficient to support a recusal motion. United States v. MMR

Corp.,

(5th Cir. 1992). Further, the

magistrate judge granted Horton's motion to reopen the case and

some of his subsequent discovery requests. Thus, the magistrate

judge did not abuse her discretion in denying the motion for

recusal.

E.

Horton argues that the defendants should have been directed to

explain the loss of portions of the videotape in response to his

second motion to compel. He also requests this court to enter an

order to show cause why sanctions should not be imposed against the

defendants.

Discovery matters are entrusted to the "sound discretion" of

the district court and are reviewed for an abuse of such

discretion. King v. Dogan,

(1994); Coughlin v.

Lee,

(5th Cir. 1991). In response to Horton's

second motion to compel production of the entire videotape, defense

counsel questioned TDCJ officials about the videotape and they

responded that the only relevant tape in existence had been

provided to Horton. The magistrate judge did not abuse her

discretion in accepting this explanation and denying Horton's

second motion to compel. Horton has not demonstrated a basis for

this court to impose sanctions against the defendants.

Horton makes a number of additional arguments regarding

alleged errors of the magistrate judge in her evidentiary and

11 discovery rulings. Our review of the record reveals no abuse of

discretion in these rulings.

AFFIRMED

12