Stephen Gilbert v. Steven French

Case: 08-20296 Document: 00511018361 Page: 1 Date Filed: 02/02/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 2, 2010

No. 08-20296 Charles R. Fulbruge III
Clerk

STEPHEN GILBERT,

Plaintiff-Appellant,
v.

STEVEN FRENCH, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-3986

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Stephen Gilbert appeals the district court’s grant of
summary judgment in favor of the Defendant-Appellees for Gilbert’s 42 U.S.C.
§ 1983 claims, arising from acts Gilbert contends constituted excessive force and
a failure to intervene, in violation of his constitutional rights. Finding no error
in the district court’s grant of judgment in favor of the Defendant-Appellees, we
AFFIRM.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
 Case: 08-20296 Document: 00511018361 Page: 2 Date Filed: 02/02/2010

No. 08-20296

I. BACKGROUND
Summary judgment proof establishes that on December 19, 2004, at
approximately 9:30 p.m., Gilbert and another man, Michael Hall, entered a
Taqueria Arandas restaurant in Bryan, Texas. Gilbert and Hall were both
wearing masks over their faces; Gilbert was armed with a piece of pipe and Hall
was carrying a gun. Upon entering the restaurant, Gilbert and Hall assaulted
and restrained four of the five employees in the building. Hall used the back of
his gun to beat one employee, Edmundo Cruz, who almost bled to death as a
result of his resulting head injury and cracked skull. While the fifth employee
exited the building to call the police, Gilbert and Hall demanded money from and
robbed the other four employees at gunpoint. The four employees were placed
in one of the restaurant’s food storage rooms, and Hall removed Santo Domingo
Reyes from the room to use as a hostage. The three employees remaining in the
storage room reported hearing the sounds of a beating, but the record is unclear
as to what injuries Reyes may have suffered prior to exiting the restaurant.
Cruz and the other two employees left in the storage room eventually escaped
through the front door, completely oblivious to what events subsequently took
place behind the restaurant.
Soon after the fifth employee had run across Texas Avenue to call the
police, numerous police units arrived on the scene and began to circle the
restaurant. While strategically positioning themselves, the police learned that
a dispatcher had just heard, over an open telephone line to the restaurant, a
male stating: “If he does not get any money, somebody is going to die.” At this
same time, one police officer observed a masked man armed with a gun through
one of the restaurant’s windows.

2
 Case: 08-20296 Document: 00511018361 Page: 3 Date Filed: 02/02/2010

No. 08-20296

After Officers French, Oliver, Bona, Pottinger, and Swartzlander
positioned themselves near the back door of the restaurant, Hall, still masked,
opened and looked out of the back door of the restaurant. The police announced
themselves and ordered Hall to surrender, but he refused and instead went back
into the restaurant. A few minutes later, the door opened again and this time
three men—Gilbert, Hall, and a hostage (Reyes)—exited. Reyes was bleeding
from his left arm and was being used by Gilbert and Hall as a shield between
them and the police.
Although the police ordered Gilbert and Hall to show their hands and get
down on the ground, neither complied. Instead, Hall shoved the hostage towards
the police, revealing a large black handgun pointed at the officers. Officer
French reported he was the first to see the gun in Hall’s hand, and that he began
to fire first.1 After the officers began to shoot at Hall, both Hall and Gilbert took
off running. French claims that both Officers Hauke and Oliver also fired at
Hall.2 Officer Oliver indicated that he shot at Hall three times. French reported
that he fired three rounds at Hall as Hall attempted to flee. Hall ultimately died
from the injuries he sustained in his attempt to flee.
The record establishes that three officers shot at Gilbert: Officer Hines,
Officer Harrison, and Officer Schooler. Hines and Harrison were stationed on

1
Officer Swartzlander’s police report, however, indicates that he, or his dog, may have
been the first to notice the weapon Hall was carrying. In his report, Swartzlander stated that
as soon as Hall shoved Reyes to the ground, his dog saw Hall’s pistol and immediately leaped,
in an attempt to attack Hall. Because Swartzlander was attached by a leash to the trained
dog, the dog’s sudden leaping caused Swartzlander to fall to the ground. Consequently,
Swartzlander watched from the ground as Hall aimed his weapon at Oliver and French.
2
Although Hauke was not stationed directly behind the restaurant, and thus never saw
the bloody hostage, Hauke reported that he shot four rounds at Hall as Hall attempted to flee
the scene.

3
 Case: 08-20296 Document: 00511018361 Page: 4 Date Filed: 02/02/2010

No. 08-20296

the opposite (front side) of the restaurant, behind a car they were using for
protection. Officer Schooler was positioned with Officer Amaya (who did not
shoot at Gilbert)– and they were hiding behind another car. The evidence does
not establish whether it was Hines’s, Harrison’s, or Schooler’s shots that actually
hit Gilbert (he sustained two gunshot wounds).3 Gilbert, in his complaint,
various pleadings, and now in his brief before this court, maintains that he was
running away with his arms raised, in an apparent attempt to surrender.4 The
record is not entirely clear whether his arms were in fact raised as he ran across
Texas Avenue.5
The record is clear that Officer Schooler was the first to open fire on
Gilbert. Her police report, in pertinent part, states as follows:
At some point I became aware that other officers were behind the
building. I heard Sgt. S. French advise on the radio that the
robbery was in progress . . . I heard Pottinger and possibly French
on the radio advising a suspect was coming out the back door. I
heard some type of scuffle coming from the northwest corner of the
building. I then heard a gunshot at the same time I saw a muzzle
flash from that area. Then a suspect ran from that area toward
Texas Avenue. I shouted once or twice for the suspect to stop but he
continued running. I then fired my shotgun at the suspect. He

3
However, we note that when the officers were interrogating Gilbert at the hospital,
Gilbert stated that he thought he had been shot by a male.
4
Gilbert also disputes the factual basis for his criminal conviction, claiming that Hall
forced him against his will to commit the robbery. Since the instant appeal is not an appeal
of his criminal conviction, but rather, is only an appeal of the district court’s entry of judgment
in favor of the Defendants for Gilbert’s § 1983 claims, we will not conduct a review of the
factual basis for the jury’s criminal conviction. Instead, we review only those facts that are
pertinent to the district court’s adjudication of Gilbert’s § 1983 excessive force and failure to
intervene claims.
5
Gilbert never claims that he actually stopped running or that he verbally announced
a surrender.

4
 Case: 08-20296 Document: 00511018361 Page: 5 Date Filed: 02/02/2010

No. 08-20296

continued running toward Texas Avenue so I fired at him again. He
still was running so I attempted to fire a third time. My shotgun
did not discharge so I racked it once and fired it a third time at the
suspect. By this time the suspect had reached Texas Avenue and
ran across. As soon as the suspect reached the grass east of the
street, he collapsed onto the ground face-down . . . .

Officer Amaya, who was the closest officer to Schooler during the shooting,
reported that he saw Gilbert running across the street and witnessed Schooler
shooting at Gilbert while he crossed the street. Amaya, however, does not state
whether Gilbert’s arms were up or down as he crossed Texas Avenue.
Hines reported that as he watched Gilbert run by Schooler, Gilbert turned
to his right and “almost stopped.” Hines claims that Gilbert then faced both
Schooler and Amaya– although Hines admits that his view of this scene was
partially blocked by Schooler and Amaya. Hines then watched as Gilbert turned
and began once again to run across Texas Avenue. Hines claims he fired four
rounds at Gilbert as Gilbert crossed the street.
Harrison’s account of this same scene is similar to Hines’s, as he states, in
pertinent part:
[Gilbert] then slowed down and turned to face his body and hands
toward us. Officer Schooler then fired her shotgun at the subject.
The subject then turned back and continued to run towards and
across Texas. As the suspect started crossing Texas, he again
slowed and faced towards us with his hands slightly extended in
front of him. I started firing and the suspect turned around and
started running again. I believe I fired two or three rounds at the
subject.

After sustaining two gunshot wounds, Gilbert was transported to St.
Joseph Hospital, where he received medical treatment. Gilbert was eventually

5
 Case: 08-20296 Document: 00511018361 Page: 6 Date Filed: 02/02/2010

No. 08-20296

arrested, yet he remained in the hospital for three days until he was released to
police custody.
On December 14, 2006, Gilbert filed his pro se complaint, bringing suit
against sixteen City of Bryan police officers, alleging various civil rights
violations cognizable under 42 U.S.C. § 1983. Specifically, Gilbert alleged that
certain City of Bryan police officers used excessive force against him, that others
failed to intervene on his behalf to prevent the use of excessive force, and that
two others delayed his access to medical care to treat his resulting gunshot
wounds. He also claimed that these actions were conducted pursuant to a
Bryan police department policy of racial profiling.
The Defendant-Appellees filed a motion to dismiss, or in the alternative,
a motion for summary judgment. On February 12, 2008, the district court
entered an order granting in part, and denying in part, the Defendant-Appellees’
motion. The district court concluded that the doctrine of qualified immunity
shielded the police officers from any liability for Gilbert’s excessive force and
failure to intervene claims against the officers in their individual capacities, and
accordingly, granted summary judgment in their favor. Furthermore, the
district court concluded that Gilbert had failed to sufficiently plead an Equal
Protection claim of disparate treatment, and as a result, the district court
dismissed Gilbert’s claim of racial profiling in accordance with Fed. R. Civ. P.
12(b)(6).
The district court denied Defendant-Appellees’ motions for summary
judgment based on Gilbert’s delayed access to medical treatment claim and
failure to train/supervise claims against the City. Gilbert then filed an appeal
from the February 12, 2008 order, which this Court dismissed as said order did

6
 Case: 08-20296 Document: 00511018361 Page: 7 Date Filed: 02/02/2010

No. 08-20296

not constitute a final order at the time of Gilbert’s initial appeal. Thereafter, the
district court severed the claims disposed of in its February 12, 2008 order from
the remaining claims sought by Gilbert and declared by written order the
February 12, 2008 order a final judgment from which an appeal could be taken.
The instant appeal from the February 2008 order followed, attacking the
dismissal of the excessive force and failure to intervene claims.
The Plaintiff-Appellant raises three points of error. First, Gilbert asserts
that the district court erred when it refused to appoint him counsel. Liberally
construing his second argument, Gilbert contends that the district court erred
when it granted the Defendant-Appellees’ motion for summary judgment for
Gilbert’s excessive force and failure to intervene claims, based on the doctrine
of qualified immunity. And finally, Gilbert argues that the district court erred
when it allegedly denied him his right to conduct discovery pursuant to the
district court’s April 26, 2007 order.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. Ford
Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). “Summary
judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” McNeil v. Wyeth, 462 F.3d 364, 367 (5th Cir. 2006)
(quoting Fed. R. Civ. P. 56(c)). “An issue is ‘genuine’ if the evidence is sufficient
for a reasonable jury to return a verdict for the nonmoving party.” Hamilton v.
Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact-issue is material only if its

7
 Case: 08-20296 Document: 00511018361 Page: 8 Date Filed: 02/02/2010

No. 08-20296

resolution could affect the action’s outcome.” Minter v. Great Am. Ins. Co. of
N.Y., 423 F.3d 460, 465 (5th Cir. 2005).
Gilbert is proceeding pro se. Thus, we apply “less stringent standards
to parties proceeding pro se than to parties represented by counsel and liberally
construe the briefs of pro se litigants.” Grant v. Cuellari, 59 F.3d 523, 524 (5th
Cir. 1995). Under this standard, pleadings filed by a pro se litigant are
entitled to a liberal construction that affords all reasonable inferences which can
be drawn from them. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2000).
III. ANALYSIS
A. The District Court’s Grant of Summary Judgment
Although the Plaintiff-Appellant did not state so explicitly in his brief on
appeal, we liberally construe his second issue raised on appeal as arguing that
the district court erred when it determined no genuine issue of material fact
existed and granted summary judgment to the Defendant-Appellees based on the
doctrine of qualified immunity. Thus, in considering whether the district court
erred in its conclusion that no genuine issue as to any material fact existed to
preclude summary judgment on Gilbert’s excessive force and failure to intervene
claims, we have given careful consideration to the facts in the record and
Gilbert’s characterization of them.
“Qualified immunity is designed to protect government officials in limited
circumstances: ‘government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Hathaway v. Bazany, 507 F.3d 312, 320
(5th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus,

8
 Case: 08-20296 Document: 00511018361 Page: 9 Date Filed: 02/02/2010

No. 08-20296

when a court rules upon a question of qualified immunity, the Supreme Court
has stated that the court must first consider “this threshold question: Taken in
the light most favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?” Sauicer v. Katz, 533
U.S. 194, 201 (2001). “[I]f a violation could be made out on a favorable view of
the parties’ submissions, the next, sequential step is to ask whether the right
was clearly established.” Id. Now, however, lower courts may consider and
decide the second Saucier factor without ever reaching the first; the Supreme
Court has stated that “[a]lthough we now hold that the Saucier protocol should
not be regarded as mandatory in all cases, we continue to recognize that it is
often beneficial.” Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).
The district court was correct to grant the officers qualified immunity
because Gilbert has failed to demonstrate that the officers’ conduct violated a
constitutional right. First, we review Gilbert’s claim that his constitutional
rights were violated when Officers Hines, Harrison, and Schooler used excessive
force to apprehend him as he fled from the crime scene. Now on appeal, Gilbert
argues that at the point that Officer Schooler first opened fire on him, he had
ceased attempting to escape by running, and had turned to show her his hands
and surrender. Most notably, Gilbert offers a police report from Officer Harrison
indicating that at the point that Officer Schooler shot him, Gilbert had already
“slowed down and turned to face his body and hands toward[s]” the police. We
also note that Hines’s report states that Gilbert “almost stopped” in the middle
of Texas Avenue, before once again running to cross the street.
Neither Harrison nor Hines, however, indicate whether Gilbert was
running with his arms fully raised, or if he appeared to be waiving his arms in

9
 Case: 08-20296 Document: 00511018361 Page: 10 Date Filed: 02/02/2010

No. 08-20296

surrender. Amaya, who was standing closest to Schooler during the shooting,
does not state whether Gilbert was running with his arms raised or down. And
Officer Schooler, in her report, states that Gilbert was running with his arms
down.
We cannot conclude that either Officer Harrison’s or Officer Hines’s
statements regarding Gilbert’s potential pause and momentary display of his
hands in the middle of Texas Avenue serve to create a genuine issue of material
fact. See Minter, 423 F.3d at 465 (“A fact-issue is material only if its resolution
could affect the action’s outcome.”); see also Scott v. Harris, 550 U.S. 372, 381
(2007) (“[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.”) (internal
quotations and citation omitted)).
That is, even if we were to adopt Gilbert’s submitted evidence and
characterization of the facts regarding whether he turned at the last second to
show his hands just before Officers Schooler, Hines, and Harrison fired at him,
in considering the legal precedents demarcating the constitutional boundaries
of a police officer’s use of “excessive force,” it is clear that the facts presented
here do not constitute a constitutional violation. Although there is no doubt that
Gilbert has a Fourth Amendment right to be free from unreasonable search and
seizure, the circumstances outlined in the present case cannot be characterized
as “unreasonable”– even when considered in the light most favorable to Gilbert,
the non-movant. In analyzing whether the present circumstances resulted in a
violation of his Fourth Amendment rights, we must consider “whether the force
used to effect a particular seizure [wa]s reasonable under the Fourth

10
 Case: 08-20296 Document: 00511018361 Page: 11 Date Filed: 02/02/2010

No. 08-20296

Amendment. [This] requires a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake. ” Graham v. Connor, 490 U.S.
386, 396 (1989) (internal quotations and citation omitted).
In applying the Supreme Court’s “test of reasonableness,” id., we find that
although Gilbert may have momentarily paused in the middle of Texas Avenue
and turned to show his hands, considering all of the circumstances surrouding
the armed robbery, the police officers were reasonable in the actions they
undertook in an attempt to apprehend Gilbert. Our “test of reasonableness . . .
requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id.
Furthermore, the Supreme Court has held that:
[w]here the officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or to
others, it is not constitutionally unreasonable to prevent escape by
using deadly force. Thus, if the suspect threatens the officer with a
weapon ... deadly force may be used if necessary to prevent escape,
and if, where feasible, some warning has been given.

Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). “Moreover, ‘[t]he calculus of
reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments-in circumstances that are tense,
uncertain, and rapidly evolving-about the amount of force that is necessary in
a particular situation.’” Stroik v. Ponseti, 35 F.3d 155, 158 (5th Cir. 1994)
(quoting Graham, 490 U.S. at 396-397).

11
 Case: 08-20296 Document: 00511018361 Page: 12 Date Filed: 02/02/2010

No. 08-20296

Given these constitutional parameters, we agree with the district court in
its determination that Schooler’s, Hines’s, and Harrison’s use of force in
arresting Gilbert did not violate his constitutional rights– and consequently, that
these officers were entitled to qualified immunity. The district court was correct
in its assessment that the police officers use of force to restrain Gilbert “was
reasonably premised on their belief that Gilbert posed an immediate threat to
officers and the public.”
The summary judgment evidence presented to the district court
undisputably reveals that when the police officers arrived on the scene, they
received information that an armed robbery was taking place inside the
restaurant, someone was armed with a gun, and they knew that a dispatcher
had heard, over an open telephone line to the restaurant, a male stating: “If he
does not get any money, somebody is going to die.” At the same time, one police
officer observed a masked man armed with a gun through one of the restaurant’s
windows. Although Schooler, Hines, and Harrison themselves did not see the
bleeding hostage or Hall’s pistol, they were well aware of the aforementioned
factors when, suddenly, they heard gunshots, saw the flash of a muzzle, and saw
a masked man running in the night– from the crime scene towards Texas
Avenue.
Although we may now find ourselves, with the depth of the record before
us on appeal, tempted to question the officers’ judgment in deciding to fire their
weapons at Gilbert as he crossed Texas Avenue, the doctrine of qualified
immunity requires us to give these officers adequate allowance for “the
split-second judgmen[t they were forced to make] in circumstances that [we]re
tense, uncertain, and rapidly evolving.” Stroik, 35 F.3d at 158 (internal citations

12
 Case: 08-20296 Document: 00511018361 Page: 13 Date Filed: 02/02/2010

No. 08-20296

and quotations omitted). The armed robbery that Gilbert and Hall undertook
is exemplary of a tense, uncertain, and rapidly evolving situation– one that
requires police officers to make split-second judgments that the doctrine of
qualified immunity is designed to protect.
We conclude, therefore, that “[u]nder these circumstances, a reasonable
officer could well fear for his safety and that of others nearby.” Reese v.
Anderson, 926 F.2d 494, 501 (5th Cir. 1991). Even if, just before Officer Schooler
shot Gilbert, he did turn to show her his hands, we cannot conclude that Officer’s
Schooler’s use of a deadly weapon in this set of circumstances violated Gilbert’s
constitutional rights. Although Gilbert offers Officer Harrison’s and Officer
Hines’s reports to indicate that he slowed down momentarily and showed his
face and his hands, there is no evidence or allegation that he slowed down and
showed his hands for a sufficient amount of time– such that Officer Schooler
could reasonably be expected to interpret his actions as a safe surrender and
abandon her duty as a police officer to apprehend what she reasonably
interpreted to be a criminal fleeing a dangerous crime scene. Given the severity
of the armed robbery, the deadly weapon officers knew a suspect possessed
inside the restaurant, the gunshots the three officers heard, and the fact that
Gilbert himself was subsequently observed fleeing the scene while wearing a
mask, we cannot conclude that it was unreasonable or in violation of the
Constitution for Schooler, Hines, and Harrison to fire their weapons in attempt
to apprehend Gilbert. “Under such circumstances, an officer is justified in using
deadly force to defend himself and others around him.” Id.
Further, because we find the police officers’ actions in using deadly force
to arrest Gilbert do not amount to an unconstitutional use of excessive force, it

13
 Case: 08-20296 Document: 00511018361 Page: 14 Date Filed: 02/02/2010

No. 08-20296

follows that the district court was correct in granting judgment on Gilbert’s
failure to intervene claims. That is, an officer must be present at a scene
involving another officer’s use of excessive force before he may be held liable for
failure to intervene. See Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995) (An
officer may be liable under § 1983 if she “is present at the scene and does not
take reasonable measures to protect a suspect from another officer’s use of
excessive force. . . .”). Since we conclude no officer used excessive force in
apprehending Gilbert, we simultaneously conclude that no officer
unconstitutionally failed to intervene.
Accordingly, we affirm the district court’s grant of summary judgment on
the Plaintiff-Appellant’s § 1983 claims for excessive force and failure to
intervene. The district court was correct to conclude that the individual police
officers were entitled to qualified immunity for their actions.
B. The District Court’s April 26, 2007 Order
Gilbert also claims that the district court erred when, in its April 26, 2007
order, it denied him his right to conduct discovery. We have reviewed this order,
however, and cannot conclude that the district court outright denied Gilbert the
right to conduct any and all discovery. The district court’s April 26, 2007 order
is actually a “Service of Process” order, in which the district court declared that
“[n]o further discovery will be allowed except on further order of the Court.”
This is routine procedure at such an early stage in the proceedings, and
as a result, does not constitute an abuse of discretion. In cases involving
qualified immunity questions of this nature, the district court is correct to
resolve the question of qualified immunity prior to permitting the plaintiff to
proceed with discovery. This is because the Supreme Court has “made clear that

14
 Case: 08-20296 Document: 00511018361 Page: 15 Date Filed: 02/02/2010

No. 08-20296

the ‘driving force’ behind creation of the qualified immunity doctrine was a
desire to ensure that ‘insubstantial claims against government officials [will] be
resolved prior to discovery.’” Pearson, 129 S.Ct. at 815 (quoting Anderson v.
Creighton, 483 U.S. 635, 640, n. 2 (1987)). Qualified immunity is “an
entitlement not to stand trial or face the other burdens of litigation.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985).
As a result, we find no error in the district court’s April 26, 2007 order.
C. The District Court’s Denial of Motion to Appoint Counsel
We review a district court’s denial of a motion for appointment of counsel
for abuse of discretion. Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985). “A
federal court has discretion to appoint counsel if doing so would advance the
proper administration of justice.” Ulmer v. Chancellor, 691 F.2d 209, 213 (5th
Cir.1985) (citing 28 U.S.C. § 1915(d) (1976)). The district court should consider
four factors in ruling on a request for appointed counsel: “(1) the type and
complexity of the case; (2) whether [Gilbert] is capable of adequately presenting
[his] case; (3) whether [Gilbert] is in a position to investigate adequately the
case; and (4) whether the evidence will consist in large part of conflicting
testimony so as to require skill in the presentation of evidence and in cross
examination.” Id.
We note that although the district court did not explicitly discuss each of
the four Ulmer factors, the district court’s analysis indicates that these factors
were sufficiently considered. When the district court denied Gilbert’s motion for
appointment of counsel on October 24, 2007, the district court reasoned that:
The primary issue presented in this case, which concerns whether
individual police officers used excessive force to arrest the plaintiff
during the commission of an armed robbery that involved hostages,

15
 Case: 08-20296 Document: 00511018361 Page: 16 Date Filed: 02/02/2010

No. 08-20296

is fairly straight forward. The record reflects that the plaintiff’s
pleadings and motions are lengthy, detailed, articulate, and
adequately researched. At this time, the case does not present
exceptional circumstances showing that appointment of counsel is
necessary.

We have reviewed the Plaintiff-Appellant’s pleadings and submitted
evidence, and concur in the district court’s assessment that given the detailed
arguments and evidence Gilbert has thus far presented, he is capable of
adequately presenting his case. This is not the sort of case that will require
special skill such as is necessary to cross-examine a witness or give a closing
argument in a courtroom. As such, we do not find that the district court abused
its discretion in denying Gilbert’s motion for appointment of counsel on October
24, 2007.6
IV. CONCLUSION
Accordingly, for the aforementioned reasons, we AFFIRM the district
court’s April 15, 2008 entry of judgment in favor of the Defendant-Appellees,
with prejudice, on the Plaintiff-Appellant’s § 1983 claims for excessive force and
failure to intervene.

6
To the extent that Gilbert is asking this Court to review the district court’s denial of
his motion to appoint counsel for representation relating to the remainder of his severed
claims (specifically, the delayed access to medical treatment and failure to train/supervise
Bryan City employees claims), we cannot entertain his request. Because the district court
severed these claims on April 15, 2008, when it entered final judgment on his excessive force
and failure to intervene claims, we do not have jurisdiction to review the district court’s denial
of his motion to appoint counsel for the adjudication of the severed claims.

16