IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-31072
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TOM MATTHEWS,
Plaintiff - Appellant
v.
CHARLES C. FOTI, JR., ET AL.,
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(93-CV-3846)
_________________________________________________________________
November 4, 1996
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Tom Matthews, a Louisiana inmate, appeals the district
court’s judgment dismissing his civil rights complaint brought
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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pursuant to 42 U.S.C. § 1983. Matthews argues that dismissal was
improper because (1) the district court failed to appoint counsel
to represent him at trial and (2) he was deprived of his
Fourteenth Amendment right to due process in connection with a
prison disciplinary incident. For the following reasons, we
affirm the judgment of the district court.
I. BACKGROUND
Proceeding pro se and in forma pauperis, Matthews filed a
complaint against Charles C. Foti, Jr., Criminal Sheriff of
Orleans Parish, Tremelon Collins, a deputy sheriff, and Orleans
Parish Prison wardens Washington and Bordelon, alleging that he
was deprived of his civil rights when he was placed in “the hole”
for 30 days without a disciplinary hearing after being accused by
Collins of exposing himself to her in the prison shower area.
Trial was held before a magistrate judge on August 15, 1995.
Matthews testified that he was placed in disciplinary segregation
without a hearing. Detective Sidney Holt of the Orleans Parish
Criminal Sheriff’s Office, Special Investigations Division,
testified that a disciplinary hearing was held on the date of the
incident, October 22, 1993, and identified disciplinary records
which so indicated. The magistrate judge found that a
disciplinary hearing had been held and recommended that judgment
be entered in favor of defendants because the factual predicate
of Matthews’s complaint had been established as untrue. The
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district court adopted the findings and recommendation of the
magistrate judge and entered judgment dismissing the complaint.
Matthews timely appealed.
II. ANALYSIS
Matthews contends, first, that he was under the impression
that he would have counsel to represent him at trial and that he
was unprepared to represent himself. Generally speaking, a civil
rights plaintiff has no right to the automatic appointment of
counsel. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
The district court is not required to appoint counsel for an
indigent plaintiff asserting a claim under § 1983 unless the case
presents exceptional circumstances. Id. The existence of
exceptional circumstances depends on the type and complexity of
the case and the abilities of the individual bringing it. Branch
v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). The discretion to
determine whether appointment of counsel is appropriate is vested
in the district court pursuant to 28 U.S.C. § 1915(d). Id.
The record discloses no abuse of discretion in the district
court’s failure to appoint counsel. Matthews made no request for
appointment of counsel during the proceedings below1 and did not
otherwise indicate to the district court the presence of
1
Matthews sent a letter to the clerk’s office shortly after
trial asking why he did not have counsel to represent him. The
letter does not indicate that Matthews ever requested appointment
of counsel, nor does the docket sheet.
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exceptional circumstances that would warrant it.
Matthews’s second argument on appeal is that he was deprived
of due process under the Fourteenth Amendment in connection with
the Collins disciplinary incident and that the district court
erred in its finding that a disciplinary hearing had been held.
We need not examine the district court’s findings because this
argument fails on other grounds as a matter of law. Under Sandin
v. Conner, 115 S. Ct. 2293 (1995), a convicted prisoner’s liberty
interests under the Due Process Clause are
generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process
Clause of its own force, nonetheless imposes atypical
and significant hardship on the inmate in relation to
the ordinary incidents of prison life.
Id. at 2300 (citations omitted). The disciplinary confinement of
Matthews, a convicted prisoner at the time, was not such a
significant departure from the ordinary conditions of his
sentence as to constitute a protected liberty interest that would
trigger due process protection. See id.; Luken v. Scott, 71 F.3d
192, 193 (5th Cir. 1995) (prisoner’s administrative segregation,
without more, does not constitute a deprivation of a
constitutionally cognizable liberty interest), cert. denied, 116
S. Ct. 1690 (1996). Because Matthews has identified no
cognizable liberty interest at stake, he cannot complain about
the adequacy of any process allegedly due. Dismissal of
Matthew’s complaint was proper in light of Sandin.
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II. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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