Derrick Stokes v. Tommy Strait , 457 F. App'x 388 ( 2012 )

Case: 10-60955 Document: 00511713662 Page: 1 Date Filed: 01/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2012
No. 10-60955
Summary Calendar Lyle W. Cayce
Clerk
DERRICK LEE STOKES,
Plaintiff-Appellant
v.
TOMMY STRAIT; IKE WILLIAMS; WARDEN BRIAN WATSON; MADISON
COUNTY, MISSISSIPPI,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:09-CV-39
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
Derrick Lee Stokes, Mississippi prisoner # 139476, filed a 42 U.S.C. § 1983
complaint wherein he alleged that the defendants used excessive force. The
parties consented to proceed before the magistrate judge (MJ), and a judgment
was rendered in favor of the defendants following a bench trial.
Stokes argues that the MJ erred in denying his motion for appointment of
counsel. A district court is not required to appoint counsel for an indigent
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-60955
plaintiff asserting a claim under § 1983 absent exceptional circumstances.
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). This court will not
overturn a district court’s decision regarding appointment of counsel unless the
appellant shows a “clear abuse of discretion.” Cupit v. Jones, 835 F.2d 82, 86
(5th Cir. 1987). Stokes has competently filed numerous motions; he
demonstrated an ability to investigate his case by filing discovery requests; he
was able to present his version of the case through testimonial evidence; and the
legal contours of his claim are not particularly complex. We discern no clear
abuse of discretion. See id.
In his reply brief, Stokes also argues that Elisa Moore was an incompetent
witness; that the defense witnesses falsified their testimony at trial; and that the
MJ abused his discretion by denying his motion requesting a videotape. This
court generally will not consider an issue raised for the first time in a reply brief.
See United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989). Nonetheless,
this court has discretion to consider an issue raised for the first time in a reply
brief if it is in response to an issue raised in an appellee’s brief. See United
States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).
Because Stokes’s arguments regarding Elisa Moore and the denial of his
motion were raised for the first time in his reply brief, we will not consider these
claims. See Prince, 868 F.3d at 1386. To the extent that Stokes’s argument
regarding the defense witnesses’ false testimony can be construed as a response
to the Government’s brief, we will consider the issue. This court will not “second
guess the district court’s decision to believe one witness’ testimony over
another’s or to discount a witness’ testimony.” Canal Barge Co. v. Torco Oil Co.,
220 F.3d 370, 375 (5th Cir. 2000). Although Stokes contends that the defense
witnesses testified falsely, he has failed to demonstrate that their testimony was
incredible as a matter of law. See Migis v. Pearle Vision, Inc., 135 F.3d 1041,
1052 (5th Cir. 1998).
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Case: 10-60955 Document: 00511713662 Page: 3 Date Filed: 01/04/2012
No. 10-60955
The judgment of the district court is therefore AFFIRMED. Stokes’s
motion for appointment of counsel is DENIED. See Schwander v. Blackburn,
750 F.2d 494, 502-03 (5th Cir. 1985).
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