IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31378 Summary Calendar

DARIAN SLY,

Plaintiff-Appellant,

versus

ED C. DAY, JR.; ET AL.,

Defendants,

JAMES MILLER, Assistant Warden, Washington Correctional Institute; ROBERT TANNER, Deputy Warden, Washington Correctional Institution; LYNN MCCLOUD, Administration Officer, Washington Correctional Institute; CHARLES DIXON, Lieutenant, Washington Correctional Institute; STANLEY PATTERSON, Correctional Officer at Washington Correctional Institute; SAMUEL TYNES, Correctional Officer at Washington Correctional Institute; S. ADCOX, Correctional Officer at Washington Correctional Institute, Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-1869-C -------------------- January 8, 2002 Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-31378 -2-

Darian Sly, Louisiana state prisoner #287746, argues that

the magistrate judge clearly erred in dismissing as incredible

his claims that he was subjected to retaliation and the use of

excessive force. He asserts that the magistrate judge failed to

properly consider the conflicting evidence prior to dismissing

the case. Sly also asserts that the magistrate judge erred in

dismissing the claims against the supervisory officials prior to

trial.

In a bench trial, the district court’s conclusions of law

are reviewed de novo, and the findings of fact are reviewed for

clear error. See Canal Barge Co., Inc. v. Torco Oil Co.,

(5th Cir. 2000). Under the clearly erroneous

standard, this court will reverse only if it has a definite and

firm conviction that a mistake has been committed.

The

burden of showing that the findings are clearly erroneous is

heavier if, as in this case, the credibility of witnesses is a

factor in the trial court’s decision.

A prison official may not retaliate against or harass an

inmate for exercising his right to file grievances. Woods v.

Smith,

(5th Cir. 1995). However, the prisoner

must prove “a chronology of events from which retaliation may

plausibly be inferred.”

(citation and internal

quotations omitted). The magistrate judge’s determination that

Sly’s evidence supporting his retaliation claims was not credible

is supported by the evidence showing that it would have been very

difficult, if not physically impossible, to spray Sly’s cell with

fecal matter through the vent. Further, the description of the No. 00-31378 -3-

widespread disarray in the cell supports Sergeant Patterson’s

assertion that the substance was thrown at the vent from inside

the cell. Thus, the magistrate judge’s determination of the

issue was not clearly erroneous.

Nor was the magistrate judge’s rejection of Sly’s testimony

that he was subjected to the use of excessive force a clearly

erroneous determination. Sergeant Patterson’s testimony that he

did not strike Sly in the head with his hand or fist was

supported by the emergency medical technician’s testimony that

the small knot on the crown of Sly’s head appeared to have been

produced by a hard object rather than a fist or hand. In light

of the overall incredible nature of Sly’s testimony, one is not

left with the definite and firm conviction that the magistrate

judge’s findings were clearly erroneous. See Canal Barge,

. Sly failed to show that the magistrate judge did

not properly consider and weigh all the evidence presented in

making his credibility determinations at trial.

With respect to the pretrial dismissal of the supervisory

officials, the record reflects that Sly consented to the

dismissal of the claims against those officials. However, even

if it is assumed that the dismissals were not voluntary, Sly

cannot show that the supervisory officials acted with deliberate

indifference to the violation of his constitutional rights by

correctional officers because he failed to prove that the

officials’ subordinates had violated his constitutional rights.

See Lozano v. Smith,

(5th Cir. 1983). No. 00-31378 -4-

Sly argues that the district court erred in dismissing his

due process claims without conducting a hearing to consider the

errors occurring at his disciplinary hearings. “Claims for

damages and declaratory relief challenging the procedures used

in, but not the results of, prison disciplinary proceedings are

similarly not cognizable in a § 1983 action until the relevant

‘conviction’ has been reversed” if a favorable judgment would

imply the invalidity of the conviction or the duration of

confinement. Clarke v. Stalder,

(5th Cir.

1998)(en banc)(citation omitted).

Sly’s due process challenge, if credited, necessarily

implies that the disciplinary board failed to follow the required

procedural safeguards in finding Sly guilty of the offenses and,

thus, unlawfully extended the duration of his sentence by

depriving Sly of good-time credits. Because Sly has not shown

that the disciplinary decisions have been overturned, he cannot

maintain a § 1983 action against the defendants for damages. See

Edwards v. Balisok,

(1997).

Sly argues that the district court erred in not permitting

him to present all of his requested witnesses to testify at

trial. A minute entry entered in the district court record prior

to trial stated that Sly intended to call the three witnesses who

ultimately testified on his behalf at trial. Sly has not argued

that he wished to call any other specific witness or explained

what the content of such witness’s testimony would have been.

This claim is frivolous.

The judgment entered in the district court is AFFIRMED. No. 00-31378 -5-

Sly has filed a motion with this court for the appointment

of appellate counsel. This case is not complex, and Sly has

exhibited the ability to provide himself with adequate

representation. See Ulmer v. Chancellor,

(5th

Cir. 1982). Sly’s motion for the appointment of appellate

counsel is DENIED.

Sly’s motion to file a supplemental brief is also DENIED.

AFFIRMED; MOTIONS DENIED.