Case: 20-30627 Document: 00515960909 Page: 1 Date Filed: 08/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 2, 2021
No. 20-30627
Lyle W. Cayce
Summary Calendar Clerk
Tony Joseph Tabor,
Plaintiff—Appellant,
versus
Vincent Coleman,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:18-CV-1308
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Tony Joseph Tabor, Louisiana prisoner # 478277, filed a civil rights
complaint against three prison officials, including Vincent Coleman. In an
amended complaint, Tabor dismissed the other two defendants. He asserted
a variety of claims against Coleman. The district court dismissed some of
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 20-30627 Document: 00515960909 Page: 2 Date Filed: 08/02/2021
No. 20-30627
Tabor’s claims for failure to state a claim, and it dismissed other claims
because they were duplicative of claims Tabor was pursuing in a separate
pending civil action.
The claim that Coleman used excessive force when he sprayed Tabor
with a chemical agent was the subject of summary judgment motions filed by
both parties. The district court denied Tabor’s summary judgment motion,
but it granted summary judgment in favor of Coleman on the excessive force
claim. Tabor timely appealed.
In his pro se brief, which we liberally construe, see Morrow v. FBI,
2 F.3d 642, 643 n.2 (5th Cir. 1993), Tabor raises several issues. He asserts
that the district court “neglected” to order the production of the camera
footage of the incident in which Coleman sprayed him with a chemical agent.
We construe Tabor’s brief as raising a challenge to the denial of his motion
to compel production of the camera footage, a decision we review for abuse
of discretion. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th
Cir. 2004). “The standard of review poses a high bar; a district court’s
discretion in discovery matters will not be disturbed ordinarily unless there
are unusual circumstances showing a clear abuse.” Marathon Fin. Ins., Inc.,
RRG v. Ford Motor Co., 591 F.3d 458, 469 (5th Cir. 2009) (internal quotation
marks omitted).
As the magistrate judge observed in her report, which the district
court determined was correct, the discovery period had expired before
Coleman moved to compel production of the camera footage. Tabor has
therefore not shown an abuse of discretion. See Brand Servs., L.L.C. v. Irex
Corp., 909 F.3d 151, 156 (5th Cir. 2018).
Tabor also complains that the district court failed to issue an order
compelling a response to his interrogatories. Here, although Tabor filed in
the district court a set of interrogatories seemingly also sent to defense
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No. 20-30627
counsel, he did not move in the district court to compel a response to his
interrogatories. Absent “unusual circumstances,” a district court does not
abuse its discretion by not ordering discovery sua sponte. See Boudreaux
v. Swift Transp. Co., 402 F.3d 536, 545 (5th Cir. 2005). Because Tabor has
pointed to no “unusual circumstances,” he has not shown an abuse of
discretion. See id.
Next, Tabor argues that the district court should have appointed
counsel to represent him. “A civil rights complainant has no right to the
automatic appointment of counsel.” Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982). Because the instant case did not present “exceptional
circumstances,” the district court did not err in failing to appoint counsel.
See id.
Because Tabor does not brief a challenge to the district court’s
summary judgment rulings on his excessive force claim, and likewise he does
not brief any challenge to the district court’s earlier dismissal of his other
claims for failure to state a claim and as duplicative, he has waived any
challenge to the dispositions of these claims. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). To the extent that Tabor argues that the
district court erred by failing to address a claim under the Americans with
Disabilities Act, his contention fails, as the passing reference to “the
A.D.A.” in his amended complaint, unaccompanied by factual allegations
that would support a claim under the Americans with Disabilities Act, was
insufficient to raise such a claim.
In view of the foregoing, the judgment of the district court is
AFFIRMED. Tabor’s motion for the appointment of counsel is DENIED.
His motion for a temporary restraining order and a preliminary injunction is
also DENIED.
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