[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13744 ELEVENTH CIRCUIT
OCTOBER 22, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-00177-CV-4
CLARENCE R. SANKS,
Plaintiff-Appellant,
versus
MICHAEL WILLIAMS,
Correctional Officer II, Coastal State Prison,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 22, 2010)
Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Appellant Clarence Sanks, pro se, appeals the district court’s grant of
summary judgment in favor of Michael Williams, a correctional facility officer, in
Sanks’s civil rights suit brought pursuant to 42 U.S.C. § 1983. Sanks’s § 1983
complaint arose from an excessive force claim against Williams as a result of an
altercation at Coastal State Prison. On appeal, Sanks argues that he was entitled to
the appointment of both district court and appellate counsel. Sanks also argues
that Williams used excessive force during the altercation, subjecting him to cruel
and unusual punishment in violation of his Eighth Amendment rights.
Additionally, Sanks contends that he was denied his Fourteenth Amendment rights
because the prison authorities did not conduct a disciplinary hearing regarding the
incident. Lastly, Sanks argues that Williams acted in bad faith by not sending
discovery documents to Sanks, who had lost pertinent documents related to his
litigation.
As an initial matter, Sanks claims that his Fourteenth Amendment due
process rights were violated when authorities put him in isolation without a
hearing. Because Sanks raises this issue for the first time on appeal, we will not
address this claim. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004).
I.
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A district court’s appointment of counsel in civil cases is warranted only in
exceptional circumstances. Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996).
The district court has broad discretion in making the determination and we review
a denial of appointment of counsel for abuse of discretion. Bass v. Perrin, 170
F.3d 1312, 1320 (11th Cir. 1999). Exceptional circumstances justifying court
appointment of counsel exist if the facts and legal issues in the plaintiff’s case are
so novel or complex that assistance of a trained practitioner is required. Kilgo v.
Ricks, 983 F.2d 189, 193 (11th Cir. 1993).
A notice of appeal does not constitute an intent to appeal from an order that
has not yet been entered when the notice of appeal is filed. McDougald v. Jenson,
786 F.2d 1465, 1474 (11th Cir. 1986). Because the intent to appeal a subsequent
order is not apparent, review on the merits would prejudice the other party. Id.
Federal Rule of Appellate Procedure 3(c) “requires that a notice of appeal
designate an existent judgment or order, not one that is merely expected or that is,
or should be, within the appellant’s contemplation when the notice of appeal is
filed.” Bogle v. Orange County Bd. Of County Comm’rs, 162 F.3d 653, 661 (11th
Cir. 1998).
We conclude from the record that the magistrate judge properly denied
Sanks’s first motion for appointment of counsel as the issues in Sanks’s case are
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neither novel nor complex. The district courts have broad discretion in
determining whether to appoint counsel, and the magistrate judge correctly
concluded that Sanks’s case did not invoke exceptional circumstances warranting
appointment of counsel. Thus, we conclude that the magistrate judge did not
abuse his discretion in denying Sanks’s motion to appoint counsel.
With respect to Sanks’s motion to appoint appellate counsel, we lack
jurisdiction to consider this motion as Sanks filed his second motion after his
notice of appeal and it did not designate an existent order as required by Fed. R.
App. P. 3(c). Moreover, we cannot find that Sanks’s notice of appeal constituted
an intent to appeal from an order denying appointment of appellate counsel
because that order had not yet been entered when Sanks filed his notice of appeal.
II.
“We review de novo a district court’s grant of summary judgment and apply
the same legal standards that governed the district court’s analysis.” Penley v.
Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (citing Capone v. Aetna Life Ins. Co.,
592 F.3d 1189, 1194 (11th Cir. 2010)). In determining the relevant set of facts at
the summary judgment stage, we must view all evidence and make any reasonable
inferences that might be drawn therefrom in the light most favorable to the non-
moving party. Penlay v. Eslinger, 605 F.3d at 848 (internal quotation marks and
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citation omitted). “Thus, the requirement to view the facts in the non-moving
party’s favor extends to genuine disputes over material facts and not where all that
exists is ‘some metaphysical doubt as to the material facts.’” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 106 S. Ct.
1348, 1356, 89 L. Ed. 2d 538 (1986)). A dispute over a fact will only preclude
summary judgment if the dispute “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986).
“The Eighth Amendment’s proscription of cruel and unusual punishments . .
. governs prison officials’ use of force against convicted inmates.” Campbell v.
Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). “[I]n making and carrying out
decisions involving the use of force to restore order in the face of a prison
disturbance, prison officials undoubtedly must take into account the very real
threats the unrest presents to inmates and prison officials alike, in addition to the
possible harms to inmates against whom force might be used.” Whitley v. Albers,
475 U.S. 312, 320, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251 (1986). Thus,
“[w]here a prison security measure is undertaken to resolve a disturbance, . . . that
indisputably poses significant risks to the safety of inmates and prison staff, . . .
the question whether the measure taken inflicted unnecessary and wanton pain and
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suffering ultimately turns on whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for the very purpose
of causing harm.” Id. at 320-21, 106 S. Ct. at 1085 (internal quotation marks
omitted).
In ruling on a judgment as a matter of law on an excessive use of force
claim, the Supreme Court has held:
[C]ourts must determine whether the evidence goes beyond a mere
dispute over the reasonableness of a particular use of force or the
existence of arguably superior alternatives. Unless it appears that the
evidence, viewed in the light most favorable to the plaintiff, will
support a reliable inference of wantonness in the infliction of pain
under the standard we have described, the case should not go to the
jury.
Id. at 322, 106 S. Ct. at 1085. The Supreme Court outlined five distinct factors
relevant to ascertaining whether force was used “maliciously and sadistically for
the very purpose of causing harm”: (1) the extent of the injury; (2) the need for
application of force; (3) the relationship between that need and the amount of
force used; (4) any efforts made to temper the severity of a forceful response; and
(5) the extent of the threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of facts known to them.
Campbell, 169 F.3d at 1375 (citing Whitley, 475 U.S. at 321, 106 S. Ct. at 1085);
see also Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 117 L. Ed. 2d 156
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(1992) (applying the same five factor test set forth in Whitley).
We conclude from the record that the district court did not err in granting
Williams’s motion for summary judgment as there was no genuine issue of
material fact. There was a need for Williams to use limited force in order to
subdue Sanks and his aggressive actions and to regain control of a threatening
situation. He ceased to use force when Sanks stopped resisting, demonstrating not
that he was acting maliciously intending to cause harm, but rather acting in good
faith to restore order. Williams was in a threatened position as he was the sole
officer in Sanks’s cell, whose exit was blocked by a crowd of inmates. Moreover,
Sanks’s injuries reflect a limited amount of force as he suffered no broken bones
and only mild swelling and redness. Williams acted with the appropriate amount
of force to insure his safety and maintain order, and ceased using force when it
was no longer necessary to control Sanks. Therefore, we conclude that the district
court did not err in granting summary judgment.
III.
As discussed above, we cannot find that a notice of appeal constituted an
intent to appeal from an order the district court had not entered when the notice of
appeal was filed. McDougald, 786 F.2d at 1474. Additionally, Fed. R. App.
P. 3(c) requires that a notice of appeal designate an existent judgment or order, not
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one that is merely expected. Bogle, 162 F.3d at 661.
We do not have jurisdiction over either of the post-judgment discovery
motions filed by Sanks. Both of Sanks’s motions were filed either before or on the
day that he filed his notice of appeal. Therefore, his notice of appeal would have
been in anticipation of an expected order, not an order in existence at the time the
notice of appeal was filed. McDougald, 786 F.2d at 1474; Bogle, 162 F.3d at 661.
We also conclude that the district court did not err in granting summary judgment
in favor of Williams and denying Sanks’s motions for both appointment of counsel
and post-judgment discovery.
AFFIRMED.
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