IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60572 Summary Calendar

BERNARD JONES,

Plaintiff-Appellant,

versus

JAMES A. RILEY, Sheriff; ROBERT SMITH; DESOTO COUNTY BOARD OF COMMISSIONERS,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:97-CV-3-B-B - - - - - - - - - - November 2, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Bernard Jones, Mississippi prisoner # 65750, appeals the

district court’s dismissal of his

civil rights

suit pursuant to a motion for judgment as a matter of law. On

appeal, Jones argues (1) that Deputy Smith exhibited deliberated

indifference to Jones’ serious medical needs because Smith,

despite not being a trained medical professional, initially

treated Jones’ injury; (2) that Deputy Smith inflicted cruel and

unusual punishment when he forced Jones to lie on the cold prison

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-60572 -2-

floor in an awkward position and when he kicked Jones in the

head; (3) that the DeSoto County Board of Commissioners should be

held liable for Deputy Smith’s actions; (4) that the defendants

conducted unconstitutional prison cell searches; (5) that the

district court erred when it failed to control Michael Morgan’s

testimony and failed to impeach his testimony; and (6) that the

district court erred when it denied Jones’ request for a jury

trial and conducted a trial before a magistrate judge without

Jones’ consent.

When a district court enters a judgment as a matter of law

in the context of a nonjury trial, this court reviews the

district court’s findings for clear error. See Fed. R. Civ. P.

52(c); Southern Travel Club v. Carnival Airlines,

(5th Cir. 1993). Deputy Smith and the defendants were not

deliberately indifferent to Jones’ serious medical need. To the

contrary, Jones admits that they immediately treated his head

wound and transported him to a hospital where he received

treatment from a physician. See Hare v. City of Corinth,

(5th Cir. 1996)(en banc).

The district court did not err when it concluded that Deputy

Smith did not inflict cruel and unusual punishment when he kicked

Jones in the head. The trial testimony indicated that Deputy

Smith accidentally kicked Jones in the head while he was involved

in an altercation with an unruly inmate. At most, Jones

demonstrated mere negligence and not deliberateness on Deputy

Smith’s part. See Hamilton v. Lyons,

(5th Cir.

1996)(holding that there is no liability for mere negligence in a No. 98-60572 -3-

§ 1983 suit). Deputy Smith did not inflict cruel and unusual

punishment when he forced Jones to lie face down on the prison

floor. By Jones’ admission, he was required to lie down so that

prison officials could search the prison cells for a cigarette

lighter. The action was not intended as punishment and thus does

not support a § 1983 claim. See id. Moreover, the prison cell

searches did not violate Jones’ constitutional rights. See

Montana v. Commissioners Court,

(5th Cir. 1981).

Jones has failed to demonstrate any unconstitutional customs

or practices perpetrated by the DeSoto County Board of

Commissioners. The DeSoto County Board cannot be held liable

under a theory of vicarious liability or respondeat superior.

See Baskin v. Parker,

(5th Cir. 1979).

The district court did not err when it failed to control or

impeach Michael Morgan’s testimony. Jones had the opportunity to

elicit favorable testimony from Morgan, whom he called to the

witness stand, but Morgan simply had nothing favorable to offer

on Jones’ behalf.

Contrary to Jones’ contention, the magistrate judge was not

required to seek the consent of the parties to conduct a

statutorily authorized

(b)(1)(B) hearing. See

Sockwell v. Phelps,

(5th Cir. 1990).

Although the district court erred when it denied Jones’ request

for a jury trial, the error was harmless because the evidence

presented at the bench trial could not withstand a motion for

judgment as a matter of a law. See Jennings v. McCormick, 154 No. 98-60572 -4-

F.3d 542, 546 (5th Cir. 1998). Accordingly, the district court’s

judgment is AFFIRMED.