Calloway v. Webb ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10931
cons. w/
No. 99-11077
Summary Calendar
JESSIE JAMES CALLOWAY,
Plaintiff-Appellant,
versus
NFN CORRECTIONAL OFFICER 3 WEBB, Etc.; ET AL.,
Defendants,
NFN CORRECTIONAL OFFICER 3 WEBB, Sergeant;
J. SLOAN; LONNIE CARPENTER, Sergeant;
RENE YBARRA, Sergeant; WES DENTON,
Correctional Officer 3,
Defendants-Appellees.
Appeals from the United States District Court
For the Northern District of Texas
(1:95-CV-33)
February 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This case is a section 1983 suit by a Texas state prisoner,
Jesse James Calloway, who alleges excessive force by prison guards
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
in violation of the Eighth Amendment. A jury found in favor of the
defendant correctional officers. On appeal, Calloway argues that
the district court abused its discretion in denying his request for
appointed counsel. Finding no abuse of discretion, we affirm.
I
While he was being transferred between facilities, Calloway
made statements that angered several guards. According to
Calloway, the guards then beat him, resulting in a small laceration
above his eye and a sprained ankle. Calloway sued one of the
guards under 42 U.S.C. section 1983, seeking a declaratory judgment
and damages.
Before trial, Calloway requested court-appointed counsel under
28 U.S.C. § 1915(e)(1). The trial court denied the request, and
later entered judgment against Calloway. Calloway appealed, and
this circuit reversed and remanded, holding that the district court
abused its discretion in denying the appointment of counsel without
considering the factors outlined in Ulmer v. Chancellor.1
Returning to the district court, Calloway renewed his request,
and the court again denied appointed counsel, citing the Ulmer
factors and noting that the court had ensured that Calloway had
copies of previously disclosed discovery materials, that Calloway
had been filing motions and responses, and that the case was not
complex. Calloway appealed the denial of appointed counsel.
1
691 F.2d 209, 213 (5th Cir. 1982).
2
The case proceeded to trial a second time with Calloway
representing himself.2 A jury found in favor of all the
defendants. Calloway appealed the jury verdict, which was
consolidated with Calloway’s earlier appeal. In these consolidated
appeals, Calloway argues only a single issue: that failure to
appoint trial counsel was an abuse of discretion by the district
court.
II
“A trial court is not required to appoint counsel for an
indigent plaintiff asserting an action under 42 U.S.C. § 1983unless the case presents exceptional circumstances.”3 The district
court has “considerable discretion” to grant or deny a motion to
appoint counsel,4 but the court must consider several factors.
These include:
1. the type and complexity of the case;
2. the petitioner’s ability to adequately present and
investigate his case;
2
The Defendant Webb at some point had disclosed information
about the other guards involved in the alleged beating; after
remand, Calloway filed an amended complaint naming five defendants,
and the case went to trial against all five.
3
Branch v. Cole, 686 F.2d 264, 265 (5th Cir. 1982).
4
Id. at 267. Calloway argues that this court impermissibly
limits the discretion of the district court by requiring
“exceptional circumstances” for counsel to be appointed. We have
stated, however, that although “exceptional circumstances” may
require a district court to appoint counsel, id. at 265, the
district court generally has discretion under 28 U.S.C. §
1915(e)(1) to appoint counsel in the interests of justice. Ulmer,
691 F.2d at 213.
3
3. the presence of evidence which largely consists of
conflicting testimony so as to require skill in presentation
of evidence and in cross-examination; and
4. the likelihood that appointment will benefit the
petitioner, the court, and the defendants by shortening the
trial and assisting in just determination.5
Although this case does involve some conflicting testimony
about whether the guards in fact beat Calloway, there is nothing
“exceptional” about this case. The factual issue is simple:
whether, and how, the guards beat Calloway. The legal issue is
discrete: did the beating, if proved, violate the Eighth Amendment.
There are no usual evidentiary issues. The district court found
that Calloway had the ability to represent himself adequately, and
the record prior to the denial of his request for appointed counsel
suggests no error in that finding. Thus, at best, Calloway’s case
implicates only the third of the four listed factors for appointing
counsel. The district court did not abuse its discretion in
denying the appointment of counsel.
III
Earlier cases have affirmed denials of appointed counsel in a
case involving numerous legal claims arising out of an alleged
5
Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992)
(internal quotation marks omitted). Parker provides the latest
restatement of the Ulmer factors. This court has also announced
factors upon which a court may not base a denial of appointed
counsel, such as a belief that attorneys would be unwilling to
represent the plaintiff. See Branch, 686 F.2d at 267 (remanding
for consideration of proper factors); Ulmer, 691 F.2d at 212-13(same).
4
illegal detention and beating6 and in a case involving denial of
food to a prisoner who refused to fully dress for meals.7
Calloway’s case is no more complex than these. The district
court’s denial of appointment of counsel and final judgment in this
case are AFFIRMED.
6
See Richardson v. Henry, 902 F.2d 414, 415, 417 (5th Cir.
1990).
7
See Cooper v. Sheriff, Lubbock County, 929 F.2d 1078, 1081,
1084 (5th Cir. 1991).
5