Andrade v. Moran, etc. ( 1994 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ___________________


          No. 92-1799



                                  NORBERTO ANDRADE,

                                Plaintiff, Appellant,

                                          v.

                             JOHN J. MORAN, ETC., ET AL.,

                                Defendants, Appellees.


                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Norberto Andrade on brief pro se.
               ________________
               David  J.  Gentile,  Senior  Legal  Counsel,  Department  of
               __________________
          Corrections,  on  Memorandum  in Support  of  Motion  for Summary
          Disposition for appellees.



                                  __________________
                                   January 13, 1994
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                      Per Curiam.    Plaintiff Norberto Andrade  filed an
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            action  pursuant to  42  U.S.C.    1983  claiming that  Rhode

            Island correctional  personnel  had used  excessive force  to

            restrain  him and  had provided  inadequate  medical care  in

            violation of the  Eighth Amendment.  Following  the dismissal

            of  three of  the  five  defendants, a  jury  trial was  held

            resulting  in  verdicts   in  favor  of  the   remaining  two

            defendants.

                      1.    The  district  court permitted  plaintiff  to

            proceed in  forma pauperis.   Plaintiff argues  that it  also
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            should  have granted  his  request  for  the  appointment  of

            counsel.   Counsel  in  civil  cases  are appointed  only  in

            "exceptional circumstances."  DesRosiers  v. Moran, 949  F.2d
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            15, 23 (1st Cir. 1991).   In determining whether a party  has

            met this standard, "a court must examine the total situation,

            focusing,  inter  alia,  on  the  merits  of  the  case,  the
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            complexity of the legal issues, and the litigant's ability to

            represent himself."   Id. at 24.   Further, on  our review of
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            the record,  we will  reverse the  district court's  decision

            "only if  the record, taken  as a whole, reflects  a manifest

            abuse of the trial court's broad discretion."  Id.
                                                           __

                      Although  there is  support  for plaintiff's  claim

            that he is illiterate, this same evidence -- a psychologist's

            evaluation  -- describes plaintiff  as bright, alert  and, in

            terms  of  his   mental  functioning,  able  to   "deliver  a



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            reasonable stream of clear ideas that were pertinent and well

            connected to the subjects being  discussed."  Thus, we do not

            believe that  plaintiff's  ability to  represent himself  was

            significantly  hampered  by  his  illiteracy.    Further, his

            complaint  concerned events that had occurred during a single

            day and  the applicable  Eighth Amendment  standards are  not

            particularly complicated.   As a result, we find  no abuse of

            discretion  in the district  court's decision not  to appoint

            counsel to represent plaintiff.

                      2.   As far as we can determine, plaintiff's second

            argument on appeal  concerns the sufficiency of  the evidence

            as to exactly  how he received a  cut on his head  during the

            incident  in question.  Specifically, plaintiff refers to the

            testimony  of  one  of  the  defendants  at  the state  trial

            (plaintiff  was  charged  with assault  upon  a  correctional

            officer on the basis of the events giving rise to this   1983

            action).  According to plaintiff, this defendant at the state

            trial  testified  that  he did  not  know  how plaintiff  had

            received  the laceration on  his head.   Apparently, the same

            defendant  at the  district court  trial  gave a  conflicting

            account of how plaintiff's injury occurred.

                      Without a transcript of either the state or federal

            court trials, it is not possible for us to review this claim.

            Fed. R. App. P. 10(b)(2) provides:

                           If the plaintiff  intends to urge on
                      appeal that  a finding  or conclusion  is


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                      unsupported   by  the   evidence  or   is
                      contrary to  the evidence,  the plaintiff
                      shall include in the record a  transcript
                      of all evidence  relevant to such finding
                      or conclusion.

            As for  the district court  proceedings, "[t]he burden  is on

            the   plaintiff  to  provide  this  court  with  an  appendix

            sufficient to support [his] points on appeal."  United States
                                                            _____________

            v.  One Motor  Yacht, 527  F.2d  1112, 1113  (1st Cir.  1975)
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            (appendix  did  not  include  transcript  of  hearing  before

            district court).  "Where  a plaintiff raises issues  that are

            factually  dependant yet fails to provide a transcript of the

            pertinent proceedings in the district court, this circuit has

            repeatedly held  that we  will not  review the  allegations."

            Muniz Ramirez  v. Puerto Rico  Fire Services, 757  F.2d 1357,
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            1358 (1st Cir. 1985).  See also Fisher v. Krajewski, 873 F.2d
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            1057,  1060, 1068  (7th Cir.  1989)  (in the  absence of  the

            transcript,  it is not  possible to review  rulings made from

            the bench and the court  "will not render a judicial decision

            founded on speculation"), cert. denied, 493 U.S. 1020 (1990).
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                      We are  aware of  plaintiff's  indigent status  and

            that he filed, in the district court, a request for the trial

            transcript under 28 U.S.C.   753(f) (A transcript paid for by

            government  is available only  if the trial  judge "certifies

            that the appeal is not frivolous (but presents  a substantial

            question).").  The district court denied plaintiff's request,

            finding   that  plaintiff   wanted   the  entire   transcript



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            essentially  for the  purpose of  having  a "retrial"  of the

            evidence  on appeal.  Because he had  already had a "full and

            fair opportunity"  to present all of his  evidence before the

            jury, the court determined that his appeal failed to assert a

            substantial question of law.

                      Indigence, however, does  not relieve plaintiff  of

            the burden  to produce  the transcript  under Rule  10(b)(2).

            See Richardson v. Henry, 902  F.2d 414, 416 (5th Cir.) (court
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            would dismiss pro se appeal concerning his sufficiency of the

            evidence claim  despite  plaintiff's inability  to  afford  a

            transcript), cert.  denied, 498  U.S. 901  (1990); Thomas  v.
                         _____________                         ______

            Computax   Corp.,  631  F.2d  139,  142-43  (9th  Cir.  1980)
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            (inability to pay  for transcript does make  it "unavailable"

            within the  meaning of Rule  10(c) which allows  plaintiff to

            prepare  a  statement   of  evidence  based  on  his  or  her

            recollection; court dismissed appeal).

                      Plaintiff  has  not  renewed  his  request   for  a

            transcript in this  court nor  has he  appealed the  district

            court's denial under   753(f).  In any event, the fact that a

            witness gave inconsistent testimony at a prior trial does not

            itself   raise   a   substantial   question.      Credibility

            determinations are solely reserved for the jury.  See Glasser
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            v. United States, 315 U.S. 60, 80 (1942).  Thus, even  taking
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            plaintiff's claim  at face  value, there is  no merit  to the

            appeal.



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                      The judgment of the district court is affirmed.
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