                           UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT


                                   ______________________

                                         No. 01-50792
                                    SUMMARY CALENDAR
                                    ______________________

                                   JAMES DAVID PRATER,
                                                                                 Plaintiff-Appellant,

                                                 v.

                       WACKENHUT CORRECTIONS CORPORATION,
                                                                               Defendant-Appellee.

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                          Western District of Texas, Austin
                                  A-99-CV-578-JN
______________________________________________________________________________
                                    June 14, 2002

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

       On December 17, 2001, Plaintiff-Appellant James David Prater, an inmate at the Travis

County Community Justice Center, was assaulted by other inmates. Prater sustained bodily

injuries, including a broken jaw, and sued Defendant-Appellee Wackenhut Corrections

Corporation, alleging causes of action for negligence, fraud, false imprisonment, and civil rights




       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
violations.2 Following a jury trial, the district court conducted a charge conference during which

the parties were informed of the charge it intended to give the jury. During this conference,

Prater objected to the court’s denial of his request for jury questions and instructions as to his

common-law fraud claim. On June 29, 2001, following the jury verdict, the district court entered

a take-nothing judgment against Prater. Prater filed a motion for new trial on July 3, and on July

16 the district court entered an order denying Prater’s motion.

        We review a district court’s use of special interrogatories for abuse of discretion. See

DSC Communications. v. Next Level Communications., 107 F.3d 322, 327 (5th Cir. 1997). In

addition, a district court has broad discretion in the instructions it gives to a jury, and we will

grant a reversal only when the charge as a whole leaves us with a substantial and ineradicable

doubt as to whether the jury was properly guided in its deliberations.     See Stine v. Marathon Oil

Co., 976 F.2d 254, 259 (5th Cir. 1992)(quoting Hall v. State Farm Fire & Cas. Co., 937 F.2d

210, 214 (5th Cir. 1991)). Even if the jury charge was erroneous, the party must still demonstrate

that it was harmed by the error. See Martin’s Herend Imps., Inc. v. Diamond & Gem Trading

U.S. Co., 195 F.3d765, 774 (5th Cir. 1999).

        A district court is not to instruct the jury on a legal theory absent evidence to support that

theory. See Lorenz v. Celotex Corp., 896 F.2d 148, 151 (5th Cir. 1990) (citing Neubauer v. City

of McAllen, 766 F.2d 1567, 1575 (5th Cir. 1985)). “A jury should be instructed on a legal theory

only if the evidence adduced at trial is sufficient to justify such an instruction.” Foster v. Ford

Motor Co., 621 F.2d 715, 717 (5th Cir. 1980); Liner v. J.B. Talley & Co., 618 F.2d 327, 330-31



        2
        The Texas Department of Criminal Justice was originally a party to the suit, but Prater
agreed to dismiss it from the suit in exchange for production of certain discovery requests.

                                                   2
(5th Cir. 1980).

       Under Texas law, the following six elements are required for a finding of common law

fraud: 1) A material representation was made; 2) It was false; 3) When it was made the speaker

either knew of the statement’s falsity or recklessly made a positive assertion with no knowledge as

to its truth or falsity; 4) The representation was made with the intention that it should be acted

upon by the recipient party; 5) The recipient party acted in reliance on it; and 6) The recipient

party suffered injury as a result. See Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983).

       For a fraudulent misrepresentation to be actionable, it must be made either directly to the

defrauded recipient or indirectly through another person with the intent that it should be repeated

for the purpose of deceiving the ultimate recipient. See Neuhaus v. Kain, 557 S.W.2d 125, 138

Prater’s argument conflates breach of contract and fraud, but these are two distinct actions.

While an intended third party beneficiary may have standing to sue for breach of contract, MCI

Telecomms. Corp. v. Texas Utils. Co.. 995 S.W.2d 647, 651 (Tex. 1999); Knox v. Ball, 191

S.W.2d 17, 21 (Tex. 1945), Prater has no standing to assert a fraud claim when no

misrepresentation was made to him or made with the intention of reaching him and when he did

not act upon any misrepresentation. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51

S.W.3d 573, 578 (Tex. 2001).

       Prater’s argument is unsupported by case law, and his argument is a patchwork of

carefully selected phrases from contracts and negligent misrepresentation cases that does not

withstand scrutiny. As Prater cannot make out a prima facie case for fraud, the district court

acted properly and the judgment is AFFIRMED.




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