991 F. 2d 802 - Smith v. McCann

George H. Smith, Jr., appeals from the district court's1 dismissal of his 42 U.S.C. § 1983 action, which alleged that defendant police officers used excessive force when arresting and interrogating him.

We may set aside a district court's findings of fact only if they are clearly erroneous. Fed. R. Civ. P. 52(a). To conclude that findings of fact are clearly erroneous, we must have a definite and firm conviction upon reviewing the record that a mistake has been made. Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). Further, " [w]hen findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings." Id. at 575. After conducting a hearing, the magistrate judge credited the officers' testimony that they did not abuse Smith and recommended dismissal. Having reviewed the record, we conclude that the magistrate judge's findings, which the district court adopted, were not clearly erroneous.

We further conclude that the magistrate judge did not abuse his discretion in allowing the jail administrator to testify for defendants. See Donald v. Rast, 927 F.2d 379, 381 (8th Cir.), cert. denied, 112 S. Ct. 96 (1991) (standard of review). We deny Smith's motion for appointment of counsel. We also deny Smith's "Petition for Extraordinary Writ," which appears to be a habeas petition that Smith must file first in the district court after exhausting his state remedies.

The judgment is affirmed.