IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11025 Summary Calendar

MARCUS DWAYNE MAYBERRY,

Plaintiff-Appellant,

v.

TABITHA R HEFNER; GARY DODDS; MATTHEW M HALL; LEE A FIELDS; CRAIG A RAINES; EDDIE WHEELER,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:96-CV-284-BA - - - - - - - - - - February 10, 2000

Before KING, Chief Judge, and WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Marcus Dwayne Mayberry (“Mayberry”),

Texas prisoner #605575, appeals from a judgment entered as a

matter of law in favor of Defendant-Appellee Tabitha R. Hefner

(“Hefner”), and from a jury verdict in favor of Defendants-

Appellees Matthew M. Hall (“Hall”) and Lee A. Fields (“Fields”).

We AFFIRM.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Mayberry claims that his constitutional rights were violated

by Hefner, the prison property officer, when she destroyed his

personal radio after it had been confiscated by prison

authorities. Mayberry contends that Hefner destroyed the radio

in retaliation for grievances he had filed against her on

previous occasions. Mayberry also asserts that his Eighth

Amendment rights were violated by prison guards Hall and Fields.

Mayberry claims that he was injured by the guards’ unnecessary

use of force.

All parties involved agreed to have the case tried before a

United States Magistrate Judge. At the close of evidence, the

magistrate granted Hefner’s motion for judgment as a matter of

law pursuant to Federal Rule of Civil Procedure 50. Mayberry’s

claims against Hall and Fields were submitted to the jury. The

jury returned verdicts in favor of Hall and Fields.1 On appeal,

Mayberry argues that the magistrate judge abused his discretion

in handling Hefner’s and Hall’s testimony, failed to follow this

court’s prior opinion,2 and erred in granting Hefner’s motion for

judgment as a matter of law.

The magistrate judge did not abuse his discretion in the

handling of Hall’s and Hefner’s testimony. See United States v.

Kizzee,

(5th Cir. 1998). In addition, our

1 Gary Dodds, Craig Raines, and Eddie Wheeler were also named as defendants in Mayberry’s complaint. However, they were never served and were not a part of the trial below. 2 See Mayberry v. Hefner, No. 97-10130 (5th Cir. Dec. 11, 1997) (unpublished).

2 No. 98-11025 -3-

review of the record indicates that the magistrate judge did not

err in granting Hefner’s motion for judgment as a matter of law.

See Garcia v. Woman's Hosp. of Texas,

(5th Cir.

1998). Mayberry failed to introduce any direct evidence that

Hefner retaliated against him, nor did he introduce any evidence

indicating a chronology of events from which retaliation may be

reasonably inferred. See Woods v. Smith,

(5th

Cir. 1995).

Lastly, we find that the trial court’s conduct was not in

conflict with the authority cited in our earlier opinion in this

case.

Mayberry’s motion to amend the record on appeal to include

exhibit #1 is DENIED because his issues on appeal do not

implicate that exhibit.

Accordingly, the judgment is AFFIRMED and all outstanding

motions are DENIED.

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