October 11, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1881
JOHN MCCABE,
Plaintiff, Appellant,
v.
LEONARD MACH, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
John McCabe on brief pro se.
Scott Harshbarger, Attorney General, Shelley L. Taylor, Assistant
Attorney General, Nancy Ankers White, Special Assistant Attorney
General, and William D. Saltzman, Department of Correction, on brief
for appellees.
Per Curiam. We have reviewed carefully the record in
this case, including the trial transcript and the briefs of
the parties. We find no reversible error to have occurred.
We add only the following.
We find no abuse of discretion in the trial court's
denial of McCabe's request for appointment of counsel. In a
civil case, counsel is required only in "exceptional
circumstances" where absence of counsel is "likely to result
in fundamental unfairness impinging on [a litigant's] due
process rights." DesRosiers v. Moran, 949 F.2d 15, 23 (1st
Cir. 1991). The instant case, which did not involve
particularly complex questions of law or fact, presented no
such exceptional circumstances.
Nor did the court abuse its discretion in admitting
testimony, pursuant to Fed. R. Evid. 404(b), concerning prior
acts of institutional violence committed by McCabe. Such
evidence had bearing on the correction officers' state of
mind while attempting to remove McCabe from his cell and thus
was relevant to their defense against McCabe's claim to have
been the victim of constitutionally excessive force. See
McCrary-El v. Shaw, 992 F.2d 809, 812 (8th Cir. 1993). The
court committed no error in determining that the probative
value of this testimony outweighed any prejudicial effect it
might have had on McCabe.
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Finally, we find no reversible error in defense
counsel's appeal to the jurors to "[p]ut yourselves in the
[shift commander's] position and ask, as he stood, whether
his decision was reasonable." Counsel was not improperly
asking the jurors "to depart from neutrality and decide the
case on the basis of personal interest and bias rather than
on the evidence," Forrestal v. Magendantz, 848 F.2d 303, 309
(1st Cir. 1988), but to evaluate the reasonableness of the
situation from what was known to the shift commander. Such
an appeal to "collective common sense" is not an
inappropriate invocation of the "golden rule." United States
v. Abreu, 952 F.2d 1458, 1471 (1st Cir.), cert. denied, 503
U.S. 994 (1992). Moreover, any possible prejudice which
might have arisen was corrected by the court's instructions
to the jury that it determine the case "entirely on the
evidence as you have seen it and heard it right in this
courtroom. Without any bias, without any prejudice." See
Forrestal, 848 F.2d at 309 (no prejudice where proper
instruction cured "golden rule" error).
Affirmed.
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