                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 15, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-30364
                         Summary Calendar



ROGER D YATES, TRAVIS CARTER, GEORGE MCGUFFEY

                     Plaintiffs - Appellants

     v.

RICHARD STALDER, Secretary

                     Defendant - Appellee

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                      USDC No. 98-CV-512-B
                      --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.

PER CURIAM:*

     Roger D. Yates, Louisiana prisoner #87050, Travis R. Carter,

Louisiana prisoner #97219, and George D. McGuffey, Louisiana

prisoner #87708 (the plaintiffs), inmates at the Louisiana State

Penitentiary (LSP), appeal the grant of summary judgment in favor

of the defendant in their civil rights suit alleging that their

equal protection rights had been violated because female inmates

at the Louisiana Correctional Institute for Women (LCIW) are

treated better than they.    The plaintiffs argue that their motion

     *
       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this opinion should not be published and is not precedent except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. 04-30364
                                  -2-

for a default judgment should have been granted because the

prison administration took more than 40 days to answer their step

2 grievance.    The district court did not abuse its discretion in

denying the motion for default judgment because the defendant had

not failed to plead or otherwise defend in the instant action.

See FED. R. CIV. P. 55; see also Flaksa v. Little River Marine

Const. Co., 389 F.2d 885, 887 (5th Cir. 1968).

       The plaintiffs also argue that the American Correctional

Association (ACA) certificates attached to one of the defendant’s

pleadings were fraudulent, and they suggest that the original

certificates be examined by a crime lab.      However, the plaintiffs

have offered only conclusory allegations to support their

assertion that the certificates are fraudulent, and the

certificates were not relied upon by the district court and are

immaterial to the review of the district court’s judgment.     The

plaintiffs also argue that the magistrate judge (MJ) denied them

due process by refusing to order a hearing regarding the

submission of the alleged fraudulent documents.      The plaintiffs

were not entitled to have a hearing merely because they requested

one.    See FED. R. CIV. P. 78; M.D. LA. LOC. R. 78.1.   The

plaintiffs’ issues with regard to the ACA certificates are

meritless.

       The plaintiffs also argue that the district court erred,

committed judicial misconduct, and denied them due process by

refusing to rule on the objection to the MJ’s ruling that no
                           No. 04-30364
                                -3-

hearing as to the authenticity of the ACA certificates was

required.   The district court was not required to rule on the

objection because the plaintiffs did not show that the MJ’s

ruling was clearly erroneous or contrary to law.   See 28 U.S.C.

§ 636(b)(1)(A).   Moreover, because the plaintiffs did not explain

how proving the ACA certificates were false would have created a

genuine issue of material fact, the court did not abuse its

discretion by granting summary judgment without considering the

plaintiffs’ objection to the MJ’s ruling.   See Washington v.

Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).

     The plaintiffs further argue that the MJ committed

misconduct by erroneously stating that the plaintiffs did not

allege an Eighth Amendment violation, thereby denying them the

opportunity to have their Eighth Amendment claim heard.   Even

assuming that the plaintiffs’ Eighth Amendment claim remained

viable after their first appeal to this court, by failing to

include their Eighth Amendment claim in opposing the summary-

judgment motion, the plaintiffs effectively abandoned that claim.

See Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir.

1983).   Consequently, this issue lacks merit.

     The plaintiffs also argue that the MJ denied the truth of

the plaintiffs’ claim that semi-private rooms exist at LCIW.

However, the plaintiffs’ complaint was not the existence of

semi-private rooms at LCIW but the means by which they were
                            No. 04-30364
                                 -4-

awarded.    Moreover, the MJ found that double and triple occupancy

cells exist at LCIW.    This issue lacks merit.

     The plaintiffs argue that the district court judge and the

MJ should have recused themselves.    The plaintiffs have not shown

that either the district court or the MJ had a personal bias

against the plaintiffs, and this assignment of error fails.     See

Liteky v. United States, 510 U.S. 540, 555 (1994); United States

v. Couch, 896 F.2d 78, 81 (5th Cir. 1990); United States v.

Devine, 934 F.2d 1325, 1348 (5th Cir. 1991).

     We do not consider the plaintiffs’ argument, raised in their

reply brief, that inmates at LSP and LCIW are similarly situated.

See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).     The

plaintiffs’ motions for oral argument and to subpoena records are

DENIED.    The district court’s judgment is AFFIRMED.
