UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-10172
(Summary Calendar)
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VICTOR L BROWN,
Plaintiff-Appellant,
versus
RONALD D DREWRY, Head Warden, French Robertson
Unit; ALL CO III OFFICERS, French Robertson
Unit,
Defendants
and
LARRY O GOBER, CO III Officer; MARK BROWN, CO
III Officer; DAVID GRAVES, CO III Officer
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(1:94-CV-47-BA)
November 14, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Victor Brown, a state prisoner proceeding pro se and in forma
*
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opinion should not be published and is not precedent except under the limited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.
pauperis, appeals the trial court’s denial of two motions for
appointed counsel and several evidentiary rulings. We affirm.
I
Victor Brown filed a lawsuit alleging violation of 42 U.S.C.
§ 1983 by the warden of the French Robertson Unit of the Texas
Department of Criminal Justice-Institutional Division (“TDCJ-ID”)
and by three facility officers. Brown alleged that the defendants
violated his Eighth Amendment right to be free from cruel and
unusual punishment when they subjected him to an excessive use of
force.
Brown asserted that Officers Brown and Graves attacked him
while escorting him to recreation. Brown alleged that Officer
Graves threw him to the ground while he was handcuffed, punched him
about the face and head, and kicked him in the face, head, back,
ribs and legs. Brown asserted that Officer Brown also struck him
and kicked him in the face. He alleged that Officer Gober then
arrived and kicked him in the ribs and back. Brown contended that
the beating continued until another officer arrived with a video
camera. The officers then escorted Brown to the infirmary where he
was examined and treated for cuts and bruises, and then returned
him to his cell. While Brown alleged that he did not provoke the
attack, he was apparently found guilty of assaulting Officer Graves
and lost privileges.
The jury returned a verdict in favor of the defendants and the
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trial court entered final judgment. Brown appeals.
II
Brown first challenges the trial court’s denials of his two
motions for appointed counsel. We review a district court ruling
on a request for appointed counsel under the abuse of discretion
standard. Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th
Cir. 1986).
The trial court is not required to appoint counsel for an
indigent plaintiff asserting a claim under § 1983 unless the case
presents exceptional circumstances. Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982). Although no comprehensive definition of
exceptional circumstances is practical, a number of factors should
be considered in ruling on requests for appointed counsel. Id. at
213. These include: (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. Id.
Here, in considering Brown’s first motion for appointed
counsel, the trial court applied the four Ulmer factors and found
that Brown’s case did not present exceptional circumstances
requiring appointed counsel. The court also found that Brown
demonstrated the ability to present his case adequately and to
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conduct investigation.
In considering Brown’s second motion for appointed counsel,
the trial court again enumerated the four Ulmer factors and
concluded that Brown’s motion was premature. Consequently, the
court denied Brown’s second motion “without prejudice to a later
application for appointment of counsel.” Brown did not file
another application.
Brown’s pleadings demonstrate that he is literate, and the
record demonstrates that he was capable of presenting evidence and
argument at trial. In addition, Brown’s action relied solely on
factual issues that he could investigate and present to the court
on his own. See Feist v. Jefferson County Comm’r’s Ct., 778 F.2d
250, 253 (5th Cir. 1985) (“Since this was a straight-forward fact-
intensive case, Feist was not required to have any legal skills or
training in order to adequately inform the court of his
allegations, and we therefore find that the district court did not
err in refusing to appoint counsel.”). As a result, we find that
the trial court did not abuse its discretion in denying Brown’s two
motions for appointed counsel.
III
Brown also raises several evidentiary issues on appeal.
Because he did not raise these issues in the district court, they
are barred here unless they involve plain error. Snyder v.
Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988). To prevail
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with these new arguments Brown must show: (1) that an error
occurred; (2) that the error was plain, which means clear or
obvious; (3) that the plain error affected substantial rights; and
(4) that not correcting the error would seriously affect the
fairness, integrity or public reputation of judicial proceedings.
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc) (citing United States v. Olano, 507 U.S. 725, 113 S. Ct.
1770, 123 L. Ed. 2d 508 (1993)), cert. denied, ___ U.S. ___, 115 S.
Ct. 1266, 131 L. Ed. 2d 145 (1995); see also Highlands Ins. Co. v.
National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994)
(applying same standard in civil case), cert. denied, ___ U.S. ___,
115 S. Ct. 903, 130 L. Ed. 2d 786 (1995). These requirements
augment our long-standing rule that reversal for plain error is
“not a run-of-the-mill remedy” and will occur “only in exceptional
circumstances to avoid a miscarriage of justice.” Highlands Ins.
Co., 27 F.3d at 1032.
Brown first argues that the trial court erred in permitting
the trial to proceed after discovering that some of Brown’s
exhibits had not been received by the court. At trial, Brown
stated that he had mailed various exhibits to the court. The court
responded that it had not received the documents. The court did
not commit plain error in continuing with the trial under these
circumstances.
Brown next contends that the defendants failed to disclose to
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him that Warden Charles Bell would testify at trial, and that when
the court permitted the warden to testify, it deprived him of
adequate and meaningful access to the courts. Brown’s contention
is without merit because the witness list the defendants filed with
the court and served upon Brown states that Warden Bell would
testify at trial. Thus, the trial court did not commit plain error
in permitting Warden Bell to testify.
Brown next argues that the trial court erred in failing to
ensure the appearance of Brown’s witness James E. Lee. The trial
court’s pretrial order instructed the parties to submit witness
lists to the court. Brown did not; rather, he filed a petition for
writ of habeas corpus ad testificandum for James Lee. The petition
stated that Lee would testify that he observed Officer Gober
loitering near the scene of the alleged beating and that he heard
“heavy rumbling” and Brown screaming. The trial court apparently
never ruled on Brown’s petition.
However, Brown has not demonstrated how the trial court’s
failure to ensure Lee’s appearance constitutes an exceptional
circumstance requiring reversal to avoid a miscarriage of justice.
Lee’s prospective testimony is substantially consistent with
testimony provided by the defendants. The trial court did not
commit plain error in failing to ensure Lee’s appearance.
Brown’s final argument is that the district court improperly
failed to hold a hearing before trial regarding the admission of
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Brown’s “criminal and disciplinary conviction.” Brown presents no
further argument or explanation regarding this issue; his bare
allegation cannot support a finding of plain error.
AFFIRMED.
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