Busch v. Brookins

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 21, 1997
• Docket: 96-40800
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40800 Summary Calendar

MICHAEL CHARLES BUSCH,

Plaintiff-Appellant,

versus

RAY BROOKINS,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas (1:94-CV-621)

August 19, 1997

Before JOHNSON, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Micheal Charles Busch, #59832, appeals the jury’s verdict in

his 42 U.S.C. § 1983 civil rights case and challenges the fairness

of the trial. Specifically, Busch contends (1) that the district

court erred in admitting and excluding several pieces of evidence

and testimony at trial; (2) that the evidence presented at trial

was insufficient to support the jury’s verdict; and (3) that the

district court improperly denied the appointment of counsel. He

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th CIR.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. now seeks a new trial.

We review district court evidentiary rulings for abuse of

discretion. See Polanco v. City of Austin, 78 F.3d 968, 982 (5th

Cir. 1996). After reviewing the record in the present case, we

hold that the evidentiary issues raised by Busch are either

frivolous or abandoned for failure to brief them adequately. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Busch argues that Brookins was deliberately indifferent for

failing to take precautions to prevent attacks by the other inmates

and that Brookins was not entitled to qualified immunity. If

Busch’s arguments are construed liberally, it appears that he is

challenging the sufficiency of the evidence supporting the jury

verdict. A jury verdict will be “upheld unless the facts and

inferences point so strongly and so overwhelmingly in favor of one

party that reasonable men could not arrive at” a contrary verdict.

Granberry v. O’Barr, 866 F.2d 112, 113 (5th Cir. 1988) (quoting

Western Co. of N. Am. v. United States, 699 F.2d 264, 266 (5th Cir.

1983)). Since we hold that reasonable men could reach different

conclusions, the jury verdict will not be set aside.

Lastly, Busch argues that he was hindered in presenting his

case at trial without the assistance of counsel. There is no

general right to appointment of counsel in civil rights actions.

See Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982) (citing

Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975)). An attorney

should be appointed only if exceptional circumstances exist. In

2 determining whether to appoint counsel in a § 1983 case, the court

should consider: (1) the type and complexity of the case; (2)

whether the indigent is capable of adequately presenting his case;

(3) whether the indigent is in a position to investigate the case

adequately; 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.” Ulmer v. Chancellor, 691

F.2d 209, 213 (5th Cir. 1982) (citations omitted). We review

district court decisions on appointment of counsel for abuse of

discretion. See Salmon v. Corpus Christi Indep. Sch. Dist., 911

F.2d 1165, 1166 (5th Cir. 1990). In the present case, the

magistrate judge did no abuse his discretion in denying Busch’s

motion for appointment of counsel.

Busch’s appeal is without arguable merit and therefore is

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Because the appeal is frivolous it is dismissed. See 5th

CIR. R. 42.2. Busch is cautioned that any future frivolous appeals

filed by him or on his behalf will invite the imposition of

sanctions. Busch is cautioned further to review any pending

appeals to ensure that they do no raise arguments that are

frivolous.

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.