Abdulhaseeb v. Hargett , 171 F. App'x 224 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 14, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MADYUN ABDULHASEEB,
a/k/a Jerry L. Thomas,
Plaintiff-Appellant,
v. No. 05-7051
(D.C. No. 98-CV-296-S)
STEVE HARGETT, Warden of LARC; (E.D. Okla.)
ALBERT E. SHULTS; JACK
HAWKINS, Chaplain at Davis
Correctional; ED STOLTZ, Religious
Coordinator for Oklahoma DOC,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
In this civil rights action, brought pursuant to 42 U.S.C. § 1983, pro se
inmate Madyun Abdulhaseeb alleges numerous instances of religious
discrimination at the Lexington Correctional Center (LCC), retaliatory transfer to
the Mack Alford Correctional Center (MACC), and further retaliation at MACC.
This case is before us a second time. In a previous decision, we affirmed the
district court’s dismissal and/or grant of summary judgment on certain claims
contained in Mr. Abdulhaseeb’s amended complaint, but reversed the dismissal or
grant of summary judgment on Counts One, Four, Five, Twelve, Fourteen,
Eighteen, and portions of Count Two of the complaint. Abdulhaseeb v. Saffle,
65 F. App’x 667, 676 (10th Cir. 2003) (unpub.).
On remand, the district court appointed counsel for Mr. Abdulhaseeb,
permitted him to amend his complaint in part, and granted summary judgment to
certain defendants in the case. The case proceeded to trial against the remaining
defendants, and a jury found in favor of the defendants on all counts. On appeal,
Mr. Abdulhaseeb challenges numerous of the district court’s pretrial, trial, and
post-trial rulings. We affirm in all respects.
Construing Mr. Abdulhaseeb’s pro se appellate briefing broadly, see, e.g.,
United States v. Distefano, 279 F.3d 1241, 1244 (10th Cir. 2002), we discern
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nearly twenty claims of error associated with the proceedings in this case.
A number of these claims, however, should be disposed of summarily based on
violations of appellate rules or other fundamental principles. “This court has
repeatedly insisted that pro se parties follow the same rules of procedure that
govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)
(quotation omitted).
First, to the extent Mr. Abdulhaseeb challenges events that he alleges
occurred during jury selection and at trial, we cannot review his contentions,
because he has failed to provide us with a transcript of the proceedings applicable
to those claims. See 10th Cir. R. 10.1(A)(1) (describing appellant’s duty to
provide portions of transcript necessary to review of appellate issues); King v.
Unocal Corp., 58 F.3d 586, 587-88 (10th Cir. 1995). Thus, we cannot review his
claims that he was denied a fair trial by the defendants’ use of a peremptory
challenge to remove an African-American juror from the jury panel; that
defendant Steve Hargett presented perjured testimony; that the defendants
suppressed evidence on his issues; that Judge Seay improperly ordered the parties
to settle after Mr. Abdulhaseeb testified; that he was entitled to judgment as a
matter of law based on the evidence presented at trial; that defendants’ counsel
improperly accused him of religious bigotry in his closing argument; and that
conflict of interest with his counsel resulted in an unfair trial. There is simply no
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record available from which a principled determination may be made on these
claims.
Second, we cannot grant relief based on allegations of ineffective
assistance of counsel in a civil case. Beaudry v. Corr. Corp. of Am., 331 F.3d
1164, 1169 (10th Cir. 2003). Thus, Mr. Abdulhaseeb’s claims that his attorney
improperly failed to provide him with notice of scheduling and pretrial
conferences; failed to call witnesses Mr. Abdulhaseeb wished to call; refused to
file motions to certify his case as a class action and to add a claim under the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–
2000cc-5 (RLUIPA); improperly failed to object to events prior to trial or at trial;
improperly failed to renew his motion for judgment as a matter of law after trial;
violated attorney-client privilege; and any other claim concerning ineffective
assistance by Mr. Abdulhaseeb’s court-appointed counsel, do not provide a basis
for reversal of the district court’s orders he challenges in this case.
Third, we will not consider claims not raised before the district court.
See, e.g., Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).
Mr. Abdulhaseeb argues that the district court conspired with his appointed
counsel, the defendants, and their attorneys, to ruin his case in the name of
Christianity. He also asserts that the district court appointed an attorney for him
as part of the conspiracy to destroy his case. Although he complained of a
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conflict of interest with counsel in the district court, the record does not contain
assertions of the sort of wide-ranging conspiracy now urged on appeal. Stripped
of their patina of conspiracy, most of his allegations are merely complaints about
ineffective assistance of counsel, which we have already stated cannot result in
appellate relief for Mr. Abdulhaseeb. We will not consider these allegations of a
conspiracy for the first time on appeal. Moreover, even if we were to consider
them, on the record we have, there is no evidence from which we could find that
the parties allegedly involved conspired to deny Mr. Abdulhaseeb a fair trial.
Having sorted the wheat from the chaff, we now consider specifically those
claims properly preserved, presented, and supported on appeal. Mr. Abdulhaseeb
challenges the district court’s denial of a number of motions he filed in this case.
We will consider each of these contentions in turn.
Before trial, Mr. Abdulhaseeb filed a motion seeking recusal of Judge Seay
pursuant to 28 U.S.C. § 455. R., Vol. V, doc. 233. The bases for recusal were
the judge’s prior rulings in the case, his “Reagan/Bush conservative Republican,
states’ rights views,” and his “intolerable views about Islam and Muslim[]
inmates.” Id. at 1. The district court denied the motion summarily. Id. doc. 237.
We review this denial for an abuse of discretion. Lopez v. Behles (In re Am.
Ready Mix, Inc.), 14 F.3d 1497, 1500 (10th Cir. 1994). Allegations of bias based
on a judge’s prior rulings in a case ordinarily do not provide a basis for recusal
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under § 455. United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005).
Moreover, “the inquiry [concerning bias] is limited to outward manifestations
and reasonable inferences drawn therefrom.” Id. (quotation omitted).
Mr. Abdulhaseeb’s motion does not cite a single manifestation, other than rulings
in the case, of the trial judge’s allegedly biased views. The district court did not
abuse its discretion in denying the motion for recusal.
Mr. Abdulhaseeb also challenges the district court’s denial of his motion to
dismiss his appointed counsel, filed one week before trial. R., Vol. V, doc. 228.
Shortly before Mr. Abdulhaseeb filed this motion, his counsel also filed a motion
requesting permission to withdraw as attorney, contending that Mr. Abdulhaseeb
had threatened him. Id. doc. 226. The district court denied both motions.
Id. doc. 240. Mr. Abdulhaseeb contends that the district court should not have
forced him to proceed to trial represented by counsel whom he had sought to
discharge.
Civil litigants do not have a Sixth Amendment right to self-representation.
See generally Austin v. United States, 509 U.S. 602, 608 (1993) (stating Sixth
Amendment protections do not apply in civil cases). They do, however, have a
statutory entitlement to proceed pro se in the federal courts. 28 U.S.C. § 1654.
While the doctrine of “harmless error” does not apply to a claim of deprivation of
this right, see Devine v. Indian River County Sch. Bd., 121 F.3d 576, 580
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(11th Cir. 1997), neither is the right absolute, United States v. Akers, 215 F.3d
1089, 1096-97 (10th Cir. 2000). A litigant seeking to proceed pro se must, among
other things, “clearly and unequivocally assert his intention to represent himself.”
Id. at 1097 (quotations omitted).
On the record presented, we are unable to determine whether
Mr. Abdulhaseeb clearly and unequivocally asserted his intention to represent
himself. His motion to dismiss his counsel only lists his reasons for
dissatisfaction with counsel, and does not request permission to proceed pro se.
Nor is there any affirmative request for substitution of counsel. Furthermore, we
do not have the transcript of the motion hearing at which the motion was
presented and argued. 1 On this record, we cannot find a violation of
Mr. Abdulhaseeb’s right to proceed pro se in this case. Nor can we determine
whether, if Mr. Abdulhaseeb requested substitute counsel at the hearing, the
district court abused its discretion in denying the request. We must therefore
1
In their brief, defendants assert that at some point “the District Court gave
[Mr. Abdulhaseeb] the option of firing his lawyer and proceeding with trial . . .
pro se or retaining his lawyer. [He] then decided to withdraw his motion to fire
his lawyer.” Aplee. Br. at 6. There is no evidence in the record to support this
assertion, which Mr. Abdulhaseeb denies. See Aplt. Reply Br. at 5. We note that
defendants’ representation is inconsistent both with the district court’s order
denying the motion to discharge counsel, R., Vol. V, doc. 240, and with
Mr. Abdulhaseeb’s counsel’s later representations (1) that the motion had
been denied (rather than withdrawn), and (2) that its denial might provide
Mr. Abdulhaseeb with an appellate issue, id. doc. 260.
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affirm the district court’s denial of the motion to discharge Mr. Abdulhaseeb’s
attorney.
Mr. Abdulhaseeb challenges a number of decisions of the district court that
are reviewed for an abuse of discretion. He requested a change of venue: more
precisely, that the trial in this matter be held in the Western District of Oklahoma
rather than at the facility in McAlester where he resided at the time of trial.
R., Vol. V, doc. 234. We discern no abuse of discretion in the district court’s
decision to hold the trial in McAlester rather than in the Western District.
Mr. Abdulhaseeb also challenges the district court’s denial of his motion to
add a RLUIPA claim. Id. doc. 235. This motion was filed less than a week
before the commencement of trial. We discern no abuse of discretion in the
district court’s denial of the motion.
Finally, Mr. Abdulhaseeb challenges the district court’s refusal to certify
this case as a class action. We discern no abuse of discretion in this decision.
In his reply brief, Mr. Abdulhaseeb accuses the district court of
“misleading the jury intentionally in his jury instructions.” Aplt. Reply Br. at 19.
Although he has included within the record the jury instructions in the case,
R., Vol. V, doc. 258, he does not raise a sufficiently specific claim for purposes
of our review.
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The judgment of the district court is AFFIRMED. All pending motions
are denied.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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