United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-40323
Summary Calendar
DWIGHT PERKINS,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION
COMPANY DEPARTMENTS; UNIVERSITY OF TEXAS MEDICAL BRANCH; KEVIN
MOORE, Senior Warden; Unidentified WESFALL, Assistant Warden;
P.H. BUCHANNAN; P.H. MARIA BERGER; Unidentified KUYKENDALL; RN
DEFOOR; RN SELIGA,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-304
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Dwight Perkins, Texas prisoner # 669985, appeals the
dismissal of his 42 U.S.C. § 1983 suit, in which he raised Eighth
Amendment claims related to medical problems he suffered after he
was prescribed a drug to which he was allergic.
Perkins argues that the district court’s denial of appointed
counsel should be reversed because the district court failed to
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
No. 04-40323
-2-
apply the “Exceptional[-]Case standard.” Because exceptional
circumstances were not present, the district court did not abuse
its discretion in refusing to appoint counsel. See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Because Perkins’s
motion for appointment of counsel on appeal fails to make the
required showing, that motion is DENIED. See id. Because
Perkins has not met the requirements for obtaining transcripts at
the government’s expense, his motion for transcript at government
expense is also DENIED. See 28 U.S.C. § 753(f); Harvey v.
Andrist, 754 F.2d 569, 571 (5th Cir. 1985).
Perkins also argues that the district court erred in denying
his request for an expert witness. He argues that he timely
requested the district court to appoint an expert witness under
FED. R. EVID. 706 and that, given the complexity of his case, this
court should remand the case to the district court for
appointment of an expert witness.
Perkins’s request for a medical expert did not meet the
requirements under the Federal Rule of Evidence. See FED. R.
EVID. 706. Moreover, it was undisputed that Maria Berger gave
Perkins a drug to which Perkins had a known allergy, and, in
light of that fact, Perkins has not explained what assistance a
medical expert would have had in his case. Consequently, the
district court’s denial of his request for an expert was not an
abuse of discretion. See Pedraza v. Jones, 71 F.3d 194, 196-97
n.5 (5th Cir. 1995).
No. 04-40323
-3-
Perkins further argues that the district court erred in
denying him permission to have three witnesses appear on his
behalf. He asserts that a security guard would have testified
that he saw Perkins in the shower area, which was unclean, and
which, Perkins asserts, could have been the cause of a staph
infection from which he now suffers. He also argues that a nurse
would have testified that she would have ordered that Perkins be
taken to a trauma center for treatment and that an inmate would
have testified regarding Perkins’s pain and suffering.
The three proposed fact witnesses were cumulative and
unnecessary given that other nurses were slated to testify
regarding Perkins’s medical condition and the fact that his
suffering after receiving the sulfa drug was undisputed.
Consequently, the district court’s denial of Perkins’s request to
present these witnesses was not an abuse of discretion. See
Gibbs v. King, 779 F.2d 1040, 1047 (5th Cir. 1986). The judgment
is AFFIRMED.
AFFIRMED; MOTIONS DENIED.