Andrade v. Moran, etc.

USCA1 Opinion




[NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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No. 92-1799



NORBERTO ANDRADE,

Plaintiff, Appellant,

v.

JOHN J. MORAN, ETC., ET AL.,

Defendants, Appellees.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND


[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before

Cyr, Boudin and Stahl,
Circuit Judges.
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Norberto Andrade on brief pro se.
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David J. Gentile, Senior Legal Counsel, Department of
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Corrections, on Memorandum in Support of Motion for Summary
Disposition for appellees.



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January 13, 1994
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Per Curiam. Plaintiff Norberto Andrade filed an
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action pursuant to 42 U.S.C. 1983 claiming that Rhode

Island correctional personnel had used excessive force to

restrain him and had provided inadequate medical care in

violation of the Eighth Amendment. Following the dismissal

of three of the five defendants, a jury trial was held

resulting in verdicts in favor of the remaining two

defendants.

1. The district court permitted plaintiff to

proceed in forma pauperis. Plaintiff argues that it also
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should have granted his request for the appointment of

counsel. Counsel in civil cases are appointed only in

"exceptional circumstances." DesRosiers v. Moran, 949 F.2d
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15, 23 (1st Cir. 1991). In determining whether a party has

met this standard, "a court must examine the total situation,

focusing, inter alia, on the merits of the case, the
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complexity of the legal issues, and the litigant's ability to

represent himself." Id. at 24. Further, on our review of
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the record, we will reverse the district court's decision

"only if the record, taken as a whole, reflects a manifest

abuse of the trial court's broad discretion." Id.
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Although there is support for plaintiff's claim

that he is illiterate, this same evidence -- a psychologist's

evaluation -- describes plaintiff as bright, alert and, in

terms of his mental functioning, able to "deliver a



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reasonable stream of clear ideas that were pertinent and well

connected to the subjects being discussed." Thus, we do not

believe that plaintiff's ability to represent himself was

significantly hampered by his illiteracy. Further, his

complaint concerned events that had occurred during a single

day and the applicable Eighth Amendment standards are not

particularly complicated. As a result, we find no abuse of

discretion in the district court's decision not to appoint

counsel to represent plaintiff.

2. As far as we can determine, plaintiff's second

argument on appeal concerns the sufficiency of the evidence

as to exactly how he received a cut on his head during the

incident in question. Specifically, plaintiff refers to the

testimony of one of the defendants at the state trial

(plaintiff was charged with assault upon a correctional

officer on the basis of the events giving rise to this 1983

action). According to plaintiff, this defendant at the state

trial testified that he did not know how plaintiff had

received the laceration on his head. Apparently, the same

defendant at the district court trial gave a conflicting

account of how plaintiff's injury occurred.

Without a transcript of either the state or federal

court trials, it is not possible for us to review this claim.

Fed. R. App. P. 10(b)(2) provides:

If the plaintiff intends to urge on
appeal that a finding or conclusion is


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unsupported by the evidence or is
contrary to the evidence, the plaintiff
shall include in the record a transcript
of all evidence relevant to such finding
or conclusion.

As for the district court proceedings, "[t]he burden is on

the plaintiff to provide this court with an appendix

sufficient to support [his] points on appeal." United States
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v. One Motor Yacht, 527 F.2d 1112, 1113 (1st Cir. 1975)
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(appendix did not include transcript of hearing before

district court). "Where a plaintiff raises issues that are

factually dependant yet fails to provide a transcript of the

pertinent proceedings in the district court, this circuit has

repeatedly held that we will not review the allegations."

Muniz Ramirez v. Puerto Rico Fire Services, 757 F.2d 1357,
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1358 (1st Cir. 1985). See also Fisher v. Krajewski, 873 F.2d
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1057, 1060, 1068 (7th Cir. 1989) (in the absence of the

transcript, it is not possible to review rulings made from

the bench and the court "will not render a judicial decision

founded on speculation"), cert. denied, 493 U.S. 1020 (1990).
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We are aware of plaintiff's indigent status and

that he filed, in the district court, a request for the trial

transcript under 28 U.S.C. 753(f) (A transcript paid for by

government is available only if the trial judge "certifies

that the appeal is not frivolous (but presents a substantial

question)."). The district court denied plaintiff's request,

finding that plaintiff wanted the entire transcript



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essentially for the purpose of having a "retrial" of the

evidence on appeal. Because he had already had a "full and

fair opportunity" to present all of his evidence before the

jury, the court determined that his appeal failed to assert a

substantial question of law.

Indigence, however, does not relieve plaintiff of

the burden to produce the transcript under Rule 10(b)(2).

See Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.) (court
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would dismiss pro se appeal concerning his sufficiency of the

evidence claim despite plaintiff's inability to afford a

transcript), cert. denied, 498 U.S. 901 (1990); Thomas v.
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Computax Corp., 631 F.2d 139, 142-43 (9th Cir. 1980)
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(inability to pay for transcript does make it "unavailable"

within the meaning of Rule 10(c) which allows plaintiff to

prepare a statement of evidence based on his or her

recollection; court dismissed appeal).

Plaintiff has not renewed his request for a

transcript in this court nor has he appealed the district

court's denial under 753(f). In any event, the fact that a

witness gave inconsistent testimony at a prior trial does not

itself raise a substantial question. Credibility

determinations are solely reserved for the jury. See Glasser
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v. United States, 315 U.S. 60, 80 (1942). Thus, even taking
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plaintiff's claim at face value, there is no merit to the

appeal.



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The judgment of the district court is affirmed.
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