United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 14, 2007
Charles R. Fulbruge III
Clerk
No. 04-41335
Summary Calendar
STEVEN GILBERT,
Plaintiff-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; UNIDENTIFIED STACKS, Warden;
NANCY HICKS, Correctional Officer 5,
Defendants-Appellees.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 9:03-CV-167
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Steven Gilbert, Texas prisoner # 423646, appeals from a jury
verdict in favor of the defendant Nancy Hicks in his 42 U.S.C. §
1983 civil rights complaint. Gilbert argues that the trial court
abused its discretion in denying his motion for new trial based
upon newly discovered evidence, in denying his request for
appointment of counsel at trial, and in excluding witness
testimony.
*
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this opinion should not be published and is not precedent except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. 04-41335
-2-
Gilbert has filed a motion for remand to the district court
for the taking of additional testimony. This motion is DENIED.
Gilbert argues that the trial court abused its discretion in
failing to grant a motion for new trial. He contends that
testimony from corrections Officer Phillips would reveal that
Hicks committed perjury at trial.
“To prevail on a Rule 59(a) claim based on newly discovered
evidence, the movant must have been excusably ignorant of the
facts at the time of the trial despite due diligence to learn
about them.” Government Fin. Servs. One Ltd. P’ship v. Peyton
Place, Inc., 62 F.3d 767, 775 (5th Cir. 1995). This court
reviews the denial of a motion for a new trial for abuse of
discretion. Lincoln v. Case, 340 F.3d 283, 290 (5th Cir. 2003).
The record reflects through the testimony of Hicks that
Gilbert was aware of the existence of Officer Phillips. Hicks
testified that she directed Officer Phillips to conduct a strip
search of Gilbert. Accordingly, this evidence is not newly
discovered after trial and Gilbert had the opportunity to request
Officer Phillips to testify. The trial court did not abuse its
discretion in denying Gilbert’s motion for new trial. See
Lincoln, 340 F.3d at 290.
Gilbert next argues that the trial court abused its
discretion in denying his two requests for appointment of trial
counsel. A district court’s decision regarding appointment of
No. 04-41335
-3-
counsel will be overturned only if a clear abuse of discretion is
shown. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
The record indicates that Gilbert was able to file a cogent
petition, that he was able to effectively argue his case at
trial, that the issues were not complex, and that the trial court
assisted him in the procedural aspects of the trial. Because
Gilbert’s claim of a civil rights violation did not present
exceptional circumstances warranting appointment of counsel, the
trial court did not abuse its discretion by denying his motion
for appointment of counsel. See Jackson v. Cain, 864 F.2d 1235,
1242 (5th Cir. 1989).
Finally, Gilbert argues that the trial court abused its
discretion in excluding the testimony of another inmate who had
filed a grievance against Hicks for similar conduct. The record
reflects that Gilbert questioned Hicks about the grievance and
introduced the inmate’s affidavit at trial. Hicks recalled the
grievance but denied any wrongdoing. Any error was thus
harmless. See United States v. Ragsdale, 426 F.3d 765, 774-75
(5th Cir. 2005), cert. denied, 126 S. Ct. 1405 (2006).
Accordingly, the judgment of the district court is AFFIRMED.