Thomas Burgess v. Deputy James Benedict , 626 F. App'x 257 ( 2015 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14839
Non-Argument Calendar
________________________
D.C. Docket No. 9:11-cv-81038-KAM
THOMAS BURGESS,
Plaintiff-Appellant,
versus
SHERIFF RIC L. BRADSHAW, et al.,
Defendants,
DEPUTY JAMES BENEDICT,
#7649,
DEPUTY ARTIS JERMAINE FORD,
#6240,
DEPUTY JOSEPH PIATCHEK,
#7930,
DEPUTY MELVIN ELLIOTT,
#7718,
CHIEF STEVE JERAULD,
Palm Beach County Fire Rescue, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 9, 2015)
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Thomas Burgess is an inmate in a federal penitentiary. He brought this
lawsuit in the District Court under 42 U.S.C. § 1983 against a group of deputies in
the Palm Beach County Sheriff’s office involved in an undercover narcotics
operation. Burgess was concluding a sale of crack cocaine from his automobile
when several deputies moved in to arrest him. As Burgess sped away, he struck a
deputy with his vehicle. Four deputies opened fire, and Burgess was shot in the
arm. After his vehicle crashed into several cars in a parking lot and came to a stop,
deputies removed Burgess from the vehicle through the driver’s side window,
since the door would not open, handcuffed him, and placed him under arrest. In
his complaint, Burgess alleged that the conduct of some of the deputies—in
shooting him and kicking him in the face while they were handcuffing him such
that he lost consciousness—and the conduct of other deputies in failing to
intervene—infringed his Fourth Amendment right against unreasonable seizure.
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The District Court granted the deputies summary judgment on all of
Burgess’s claims except the claims against the deputies who allegedly kicked him
in the face. A jury tried and acquitted the deputies. This appeal, which Burgess
takes pro se, is from the judgment the District Court entered after denying
Burgess’s motion for a new trial. Burgess seeks a new trial based on the alleged
corruption of the jury venire during voir dire, erroneous jury instructions, and the
jury’s failure to award him nominal damages. He also contends that the District
Court abused its discretion in refusing to grant a change of venue and in denying
his request for the appointment of counsel and a forensic expert. We find no merit
in Burgess’s appeal and accordingly affirm.
I.
The Federal Rules of Appellate Procedure required Burgess, within 14 days
after filing his notice of appeal, to either “order from the reporter a transcript of
such parts of the proceedings not already on file as [he] considers necessary,” or
“file a certificate stating that no transcript will be ordered.” Fed. R. App. P.
10(b)(1). Rule 10(b)(2) provides, for example, that “[i]f the appellant intends to
urge on appeal that a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant must include in the record a transcript of all
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evidence relevant to that finding or conclusion.” Fed. R. App. P. 10(b)(2).1 We
previously denied Burgess’s request for a trial transcript at public expense. Since
we do not have the benefit of a transcript, we are unable to review Burgess’s claim
of jury corruption, the allegedly erroneous instructions to the jury, and the jury’s
failure to award him nominal damages. 2
II.
Burgess contends that the District Court should have moved the venue from
Palm Beach County. He posits that jurors from Palm Beach County would be
afraid to return verdicts against the deputies, because the deputies could retaliate
against them. Because Burgess failed to raise a venue challenge prior to trial, he
waived it. Hoffman v. Blaski, 363 U.S. 335, 361, 80 S. Ct. 1084, 1098–99, 4 L. Ed.
2d 1254 (1960).
III.
Burgess argues that the District Court abused its discretion in denying his
motion to appoint counsel and a forensic expert. He believes the case was beyond
the ability of a layman to prepare and prosecute. In addition, he claims an attorney
would have found a doctor to testify that his facial injuries resulted from blunt
1
“[P]ro se appellants, just like appellants represented by counsel, must provide trial
transcripts in the appellate record to enable this Court to review challenges to sufficiency of the
evidence.” Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002).
2
Without a transcript, we cannot determine whether Burgess timely objected and if he
objected, the District Court’s response.
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force trauma that could have rendered him unconscious. He posits that the forensic
expert would have testified that the deputies employed excessive force when they
shot at him.
We review the denial of a motion for appointment of counsel for abuse of
discretion. Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063, 1065 (11th Cir.
2013). We use the same standard in reviewing the denial of the appointment of an
expert. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999).
A plaintiff in a civil case has no constitutional right to counsel. Id. at 1320.
Under 28 U.S.C. § 1915(e)(1), a court may appoint counsel for an indigent
plaintiff. Id.; 28 U.S.C. § 1915(e)(1). Appointment of counsel in a civil case is a
privilege that requires exceptional circumstances, such as the presence of facts and
legal issues that are so novel and complex as to require the assistance of a trained
practitioner. Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). The key is
whether the pro se litigant needs assistance presenting the essential merits of his
position to the court. Id. The following factors determine whether exceptional
circumstances exist: (1) the type and complexity of the case; (2) whether the
litigant is capable of adequately presenting his case; (3) whether the litigant is in a
position adequately to investigate the case; and (4) whether the evidence will
consist in large part of conflicting testimony so as to require skill in the
presentation of evidence and in cross-examination. See Ulmer v. Chancellor, 691
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F.2d 209, 213 (5th Cir. 1982) (adopted in Fowler v. Jones, 899 F.2d 1088, 1096
(11th Cir. 1990)); see also Smith, 713 F.3d at 1065 n.11.
Federal Rule of Evidence 706(a) provides the District Court with
discretionary power to appoint an expert witness. Fed. R. Evid. 706(a); Steele v.
Shah, 87 F.3d 1266, 1271 (11th Cir. 1996). Such an appointment is especially
appropriate where the evidence or testimony at issue is scientifically or technically
complex. Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,
1348 (11th Cir. 2003). Where a party requests the appointment of an expert to aid
in evaluating evidence that is relevant to a central issue in the case, the court is
obligated to fairly consider the request and to provide a reasoned explanation for
its ultimate decision on the matter. Id. However, the district court is not obligated
to appoint an expert. Id. at 1348–49.
Burgess has not shown an abuse of discretion in the denial of his request for
counsel. His claims for relief at trial, which involved allegations of excessive use
of force and failure to intervene, were neither novel nor complex. See, e.g., Dean
v. Barber, 951 F.2d 1210 (11th Cir. 1992). Burgess’s active involvement in the
litigation showed that he was capable of adequately presenting his case. See
Ulmer, 691 F.2d at 213. He submitted an extensive complaint, numerous motions,
and two appellate briefs, all of which cite competent legal authority. It therefore
appears that he was able adequately to investigate the case. Furthermore, he stated
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in his motion to appoint counsel that he wished to remain pro se, but that he
needed counsel merely to hire and coordinate with his forensic expert. In sum, he
essentially admitted that the issues were not so complex or difficult that he needed
counsel at trial.
Nor did the District Court abuse its discretion in denying Burgess’s motion
for appointment of a forensic expert. Burgess has not shown that the evidence or
testimony at issue was scientifically or technically complex. See Quiet
Technology, 326 F.3d at 1348. The court’s grant of summary judgment in favor of
the deputies with regard to the claim that the shooting constituted excessive force
rendered the expert’s proposed testimony about whether the shooting was justified
irrelevant. The expert’s proposed testimony regarding whether Burgess’s car hit a
deputy was not the result of particular expertise, as the expert admitted that he was
not an accident reconstructionist, and it merely did not “sound logical” to him that
Burgess’s car could have hit a deputy and sent him airborne. Evidence of
Burgess’s injuries did not require an expert because Burgess’s injuries were
undisputed. The only disputed factual issue—whether Burgess was kicked in the
face while being handcuffed—did not require the testimony of a forensic expert.
In conclusion, we find no abuse of discretion in the denial of court-appointed
counsel and a forensic expert.
AFFIRMED.
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