UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6653
WILLIAM EUGENE WEBB,
Plaintiff – Appellant,
v.
JOE DRIVER, Warden; MR. MARTINEZ, Acting Warden; MR.
ORSOLITS, Assoc. Warden, DR. JORGES VAZQUEZ; DR. HERMAN
BRANSON; DR. RICHARD RAMIREZ,
Defendants – Appellees,
and
MR. GREENWALL, Food Service Administrator; MS. DEBRA
BRADLEY, Supervisor of Education; HAROLD BOYLES,
Defendants.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cv-00062-JPB)
Submitted: January 17, 2013 Decided: January 24, 2013
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Eugene Webb, Appellant Pro Se. Alan McGonigal,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
William Eugene Webb appeals from the jury’s verdict
for Defendants in his Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) suit, finding that
Defendants were not deliberately indifferent to Webb’s medical
needs regarding his hernia. Webb also appeals various
preliminary district court orders. We have reviewed the record
and find no reversible error. Accordingly, we affirm
substantially for the reasons stated by the district court.
Webb v. Driver, No. 3:07-cv-00062-JPB (N.D.W. Va. July 8, 2011;
July 29, 2011; Aug. 9, 2011; Jan. 18, 2012). In addition, we
briefly consider certain of Webb’s appellate claims not
addressed in detail by the district court.
Webb challenges the district court’s denial of his
request for an interlocutory appeal regarding the performance of
his appointed attorney. A district court may certify for appeal
an order not otherwise appealable should the court find that
there is a controlling issue of law on which there is a
difference of opinion and that an immediate appeal would
materially advance the ultimate termination of the litigation.
28 U.S.C. § 1292(b) (2006). As an initial matter, Webb provides
no authority supporting the conclusion that the denial of a
request for an interlocutory appeal is itself an appealable
order. Moreover, even if it were, the order at issue does not
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satisfy the requirements of § 1292(b). There is no difference
of opinion on the question of whether an indigent litigant has a
constitutional right to assistance of counsel in a civil suit.
See Sanchez v. United States, 785 F.2d 1236, 1237 (8th Cir.
1986). Further, an immediate appeal would likely not have had
an effect on the timeline of the litigation, as Webb shows no
likelihood that he would have succeeded in an interlocutory
appeal. Accordingly, the district court did not err in denying
Webb’s request for an interlocutory appeal.
Next, Webb challenges the exclusion of certain
documents as irrelevant. While the order Webb cites in his
informal brief does not provide any reasoning or describe the
documents excluded, Webb claims in his informal brief that the
district court erred in excluding evidence of his acid reflux
disease (“GERD”), as well as his “actual hernia and scars.”
However, although Webb contends on appeal that his GERD was
related to his hernia, he failed to provide any evidence
connecting the two conditions in district court. Moreover,
regarding his scars, Webb failed to show any medical evidence of
permanent damage, rendering his present appearance irrelevant.
As such, Webb has failed to show any abuse of discretion by the
district court. See United States v. Johnson, 617 F.3d 286, 292
(4th Cir. 2010) (providing standard of review).
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Without citing any specific motions or orders, Webb
challenges the district court’s failure to investigate his
allegations that Defendants were retaliating against him during
the pendency of his case. In one of his motions, Webb claimed
that prison officials were arranging for prisoners to assault
him and that he had been denied postage and legal resources.
The district court required the United States Attorney’s office
to “make the necessary arrangements to provide the pro se
plaintiff with sufficient postage and photocopy capabilities.”
At trial, Webb complained about his treatment in his
then-current Mississippi prison. The district court informed
Webb that it had no control over prisons located outside the
Northern District of West Virginia. The court noted that it
would entertain motions should Webb need additional time or
assistance with prosecuting his case but that it would not
otherwise get involved. On appeal, Webb presents his claim in a
conclusory manner and does not provide any evidence that the
conditions of which he complained were orchestrated by the
Defendants. Further, he does not aver that Defendants’ alleged
retaliation prejudiced his case.
We conclude that, even assuming for the sake of
argument that the district court was under some sort of duty to
investigate, any failure to do so is irrelevant to the issues in
this case. Webb is free to bring another suit addressing his
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mistreatment during the time of the pendency of this case should
he believe that such treatment violated his rights. However,
absent any allegations that Defendants’ actions impacted his
instant suit, his assertions of retaliation have no bearing on
his appeal.
Finally, Webb challenges the district court’s recess
of ten days in the middle of the trial, its refusal to question
the jury upon their return to ensure that their integrity was
not breached, and the court’s refusal to permit the jury to have
transcripts of Defendant Orsolits’ testimony even though the
jury requested them. Webb provides no details or cites to the
record, he fails to show how the transcripts would have altered
the jury’s verdict, and he fails to make any showing that the
jury was compromised.
Our review of the record shows that the court had to
recess the trial based upon another, previously scheduled trial.
Moreover, it appears that the court believed the trial would be
over in three days, making any recess unnecessary, but that
instead Webb took three days to present his case. Our review of
the transcript reveals that Webb’s pro se case was presented in
a lengthy and repetitive manner. In fact, the jury requested
that the court put a time limit on closing arguments. In
addition, Webb did not object to the recess.
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Based on our review of the record, the district
court’s recess of ten days, while not ideal for the presentation
of Webb’s case, was not intentional and resulted from a
lengthier trial than the parties anticipated. Webb’s
allegations of prejudice are merely speculative, and he provides
no specifics as to items or details that would be hard for the
jury to remember. Likewise, he proffers nothing to support his
assertions that the jury was compromised during the recess.
Finally, Webb failed to object to the court’s refusal to
transcribe Orsolits’ testimony, and he makes no specific
argument as to how this testimony would have altered the jury’s
verdict. Given Webb’s conclusory arguments and his failure to
preserve his claims for appeal, we find that his claims are
without merit.
Based on the foregoing, we affirm the judgment of the
district court. We deny Webb’s motions to compel transcripts as
moot and deny his motion for appointment of counsel. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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