Nelson Duarte, Plaintiff-appellant, v. United States of America, Defendant-appellee, 52 F.3d 328 (7th Cir. 1995)

Order

Nelson Duarte contends, in this suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, that prison guards lost some of his property. After a bench trial, by consent under 28 U.S.C. § 636(c), the magistrate judge concluded that the guards negligently failed to secure Duarte's property during three days he was in administrative segregation. The judge awarded Duarte $71.99 as the value of the missing property.

Duarte believes that he lost more property than the judge believed. But the nature of the property in question is a factual matter, and the judge's findings may be upset only if clearly erroneous, which they are not. There was a direct conflict in testimony, and the judge was entitled to disbelieve Duarte. See Anderson v. Bessemer City, 470 U.S. 564 (1985). He seeks to attack this conclusion indirectly by contending that he was not allowed adequate discovery. The judge denied the request in question as vague and, worse, untimely. Duarte does not deny that he made the request after the discovery deadline had passed, which is a sufficient reason to reject his protest.

Finally Duarte contends that he is entitled to attorneys' fees. This is a peculiar request, for Duarte was not represented by counsel and therefore incurred none. The only statute that might support an award, the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (1) (A), does not permit awards to non-attorney litigants who appear pro se. See Kay v. Ehrler, 499 U.S. 432 (1991) (discussing 42 U.S.C. § 1988, but providing a rationale applicable to other statutes permitting awards of attorneys' fees).

AFFIRMED

---------------