                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 00-40642
                           Summary Calendar



RODNEY WAYNE SMITH,

                                           Plaintiff-Appellant,

versus

FRED BECKER; ET AL.,

                                           Defendants,

NORMAN E. MCCLURE; CURTIS B. MCKNIGHT;
NORA SYLVESTOR; WILLIAM VAN HOOK; JOE MOYA,

                                           Defendants-Appellees.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. G-92-CV-515
                         --------------------
                             July 9, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

     Rodney Wayne Smith, Texas prisoner # 330699, appeals the

jury’s verdict and the conduct of his trial by the magistrate

judge in this 42 U.S.C. § 1983 civil rights action.      Smith argues

that the magistrate judge refused him adequate pretrial

discovery.     Smith has not shown what specific discovery was

denied or how he was harmed in presenting his case at trial.       The


     *
        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that this opinion should not be published and is not precedent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.
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                                 -2-

record shows that he requested certain documents which the

magistrate judge ordered the defendants to produce, and those

documents were produced.    The record reflects that the magistrate

judge did not abuse his discretion in his discovery rulings.

Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990).

     Smith argues that the magistrate judge erred in not

appointing him counsel.    He has also filed a motion for

appointment of counsel on appeal in this court.    There are no

exceptional circumstances in this case.    The facts of this case

are not complex.    The defendants denied Smith’s claims that he

was searched as Smith described and denied that the disciplinary

charges brought against him were false.    Smith demonstrated the

ability to prosecute the case himself through his numerous

clearly-written pleadings in the district court.    There is

nothing in the record which suggests that Smith was unable to

inform the jury of his version of events.    He offered and had

admitted 18 of his 21 exhibits and cross-examined all witnesses.

The magistrate judge did not abuse its discretion in denying

Smith’s motion   for appointment of counsel, and his motion on

appeal IS DENIED.    Ulmer v. Chancellor, 691 F.2d 209, 213 (5th

Cir. 1982).

     Smith argues that the district court was required to issue

an order clarifying what amount Smith owed, since he was the

prevailing party on the initial appeal of this matter.      He argues

that he should not be taxed costs for pursuing a non-frivolous

appeal.   The alleged failure of the magistrate judge to issue

such an order regarding Smith’s IFP status in his previous appeal
                            No. 00-40642
                                 -3-

is not a matter for consideration by this court now in this

appeal involving the subsequent trial and jury verdict.

     Smith argues that the magistrate judge made comments on the

weight of the evidence by suggesting to the jury that he needed

little if any monetary compensation.    Smith contends that the

magistrate judge gave the jury the appearance of partiality with

disruptions of Smith’s cross-examination and “suggestions” that

Smith illegally obtained material to make African Medallions.

Smith states that the magistrate judge refused to admit relevant

evidence regarding his institutional grievances and testimony by

another inmate, James Stephens, concerning his stay in transit

status with Smith.

     Review of the trial errors alleged by Smith depends on a

trial transcript.    Smith has failed to provide a transcript.

Fed. R. App. P. 10(b); Powell v. Estelle, 959 F.2d 22, 26 (5th

Cir. 1992).   The record as it stands shows that Smith was

afforded all the opportunities at trial as required under due

process.

      As for Smith’s contention that the magistrate judge should

have entered a jury charge regarding malicious prosecution,

malicious prosecution was not a part of the trial.    This court,

in remanding this matter, specifically held that the matters left

for consideration were retaliation and the appropriateness of

strip and body-cavity searches.

     The nature of Smith’s motion for recusal was a simple

misunderstanding concerning the magistrate judge’s possession of

some documents filed by Smith.    This discrepancy was immediately
                             No. 00-40642
                                  -4-

corrected by the magistrate judge, and Smith was not prejudiced

at trial.   There is no evidence in the record that suggests

partiality by the magistrate judge in this matter.    Although

Smith argues that the magistrate judge showed partiality at the

trial, he never alleges that he moved for recusal during the

trial.

     Smith argues that the magistrate judge erred in denying his

motion for partial summary judgment on his claims regarding the

strip-body-cavity search and malicious prosecution, which the

defendants did not oppose.    Smith’s motion was based on his

contention that he was entitled to a judgment as a matter of law

on the issues of the alleged unconstitutional search and

malicious prosecution.   Malicious prosecution was not an issue

before the magistrate judge after this court’s opinion remanding

for further proceedings.    As Smith states in his brief, the

defendants’ position was that Smith had never been subjected to a

body cavity search by any of the defendants.    Whether the search

occurred at all is a material factual issue requiring a trial.

     Smith argues that the credible evidence was insufficient to

support the jury verdict.    The jury found that the defendants did

not retaliate against Smith.    Smith’s assertions are in the

nature of an attempt to challenge the credibility decisions made

by the jury.   This court will not disturb credibility

determinations on appeal.    See Williams v. Fab-Con, Inc., 990

F.2d 228, 230 (5th Cir. 1993) (this court defers to the trier of

fact if factual determinations are based upon credibility

determinations).   "An appellate court is in no position to weigh
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                                -5-

conflicting evidence and inferences or to determine the

credibility of witnesses; that function is within the province of

the finder of fact."   Martin v. Thomas, 973 F.2d 449, 453 n.3

(5th Cir. 1992) (internal quotation and citation omitted).

     AFFIRMED; MOTION DENIED.
