McCabe v. Mach ( 1996 )

USCA1 Opinion

        October 11, 1996        [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 94-1881



                                     JOHN MCCABE,



                                Plaintiff, Appellant,



                                          v.



                             LEONARD MACH, ETC., ET AL.,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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            John McCabe on brief pro se.
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            Scott Harshbarger, Attorney General, Shelley L. Taylor,  Assistant
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        Attorney General,  Nancy  Ankers  White,  Special  Assistant  Attorney
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        General, and William D.  Saltzman, Department of Correction, on  brief
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        for appellees.





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                 Per Curiam.   We have reviewed  carefully the record  in
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            this case, including  the trial transcript and the  briefs of



            the parties.  We  find no reversible error to  have occurred.



            We add only the following.



                 We  find no  abuse of  discretion in  the trial  court's



            denial  of McCabe's request for appointment of counsel.  In a



            civil  case,   counsel  is  required  only   in  "exceptional



            circumstances" where absence of  counsel is "likely to result



            in fundamental  unfairness  impinging on  [a litigant's]  due



            process rights."  DesRosiers  v. Moran, 949 F.2d 15,  23 (1st
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            Cir.  1991).    The  instant  case,  which  did  not  involve



            particularly complex  questions of law or  fact, presented no



            such exceptional circumstances.



                 Nor  did the  court  abuse its  discretion in  admitting



            testimony, pursuant to Fed. R. Evid. 404(b), concerning prior



            acts  of institutional  violence committed  by McCabe.   Such



            evidence  had bearing  on the  correction officers'  state of



            mind while attempting to remove McCabe from his cell and thus



            was relevant to their defense against  McCabe's claim to have



            been  the victim  of constitutionally  excessive force.   See
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            McCrary-El v. Shaw, 992  F.2d 809, 812 (8th Cir.  1993).  The
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            court committed  no error  in determining that  the probative



            value of this testimony  outweighed any prejudicial effect it



            might have had on McCabe.











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                 Finally,  we  find   no  reversible  error  in   defense



            counsel's  appeal to the  jurors to "[p]ut  yourselves in the



            [shift commander's]  position and  ask, as he  stood, whether



            his  decision was  reasonable."   Counsel was  not improperly



            asking the jurors  "to depart from neutrality  and decide the



            case on the basis  of personal interest and bias  rather than



            on the evidence,"  Forrestal v. Magendantz, 848 F.2d 303, 309
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            (1st  Cir. 1988), but  to evaluate the  reasonableness of the



            situation from what was  known to the shift commander.   Such



            an   appeal  to   "collective   common  sense"   is  not   an



            inappropriate invocation of the "golden rule."  United States
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            v. Abreu, 952 F.2d  1458, 1471 (1st Cir.), cert.  denied, 503
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            U.S.  994 (1992).    Moreover, any  possible prejudice  which



            might have  arisen was corrected by  the court's instructions



            to  the  jury that  it determine  the  case "entirely  on the



            evidence as  you have  seen it  and heard  it  right in  this



            courtroom.   Without any  bias, without any  prejudice."  See
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            Forrestal,  848  F.2d  at  309  (no  prejudice  where  proper
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            instruction cured "golden rule" error).



                 Affirmed.
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