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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13355
Non-Argument Calendar
____________________
MITCHELL MARBURY,
Plaintiff-Appellant,
versus
CYNTHIA STEWART,
WARDEN, ST. CLAIR CF,
J. BULLARD,
Correctional Officer,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-13355
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cv-01103-JB-B
____________________
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Mitchell Marbury, an inmate proceeding pro se in this
42
U.S.C. § 1983 case, appeals the district court’s judgments in favor
of Cynthia Stewart, William Streeter, and Jermaine Bullard (the
“Defendants”). He argues that the district court abused its discre-
tion in denying him the opportunity to dismiss court-appointed
counsel for failing to seek a continuance on the last day of trial, that
the district court erred in denying his discovery motions, and that
he was denied material evidence in violation of the Due Process
Clause. He also asks us to reverse a jury verdict in favor of one
defendant. For the following reasons, we affirm.
I.
In response to gang violence at Holman Correctional Facil-
ity (“Holman”), then-correctional warden Cynthia Stewart asked
an Alabama Department of Corrections Emergency Response
Team (“CERT team”) to perform a shakedown of different housing
units on December 3, 2018, and to confiscate any contraband. Mar-
bury, incarcerated at Holman, claimed that William Streeter, a
CERT team commander, struck him in the face during the shake-
down. Marbury said that this resulted in injuries to his face and
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22-13355 Opinion of the Court 3
nose and required multiple trips to the infirmary. He also alleged
that Jermaine Bullard, a CERT team member, was aware of
Streeter’s actions but failed to do anything to stop him. And he
alleged that he informed Stewart about the incident and submitted
complaints to her, but that she refused to investigate or take action
to protect him.
Based on this alleged string of events, Marbury filed a com-
plaint under § 1983 against the Defendants. He claimed that the
Defendants used excessive force against him, failed to protect him,
and exhibited a deliberate indifference to his constitutional right to
be free from excessive force, all in violation of the Eighth Amend-
ment. He sued the Defendants in both their individual and official
capacities1 and sought both monetary damages, and declaratory
and injunctive relief.2
The Defendants filed an answer and a “special report” deny-
ing Marbury’s claims. While not disputing that Marbury was in-
jured at some point in December 2018, 3 the Defendants stated that
1 Marbury, in one part of his complaint, alleged that he was suing only Streeter
in his official capacity, but he later indicated that he was suing all three De-
fendants in their official capacities.
2 In the magistrate judge’s report and recommendation, the magistrate judge
concluded that Marbury’s requests for declaratory and injunctive relief are
moot because he has since been transferred to a new facility. The district court
adopted this conclusion.
3 Medical records from Holman documented that Marbury went to the infir-
mary two days after the CERT team sweep, on December 5, 2018, but
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4 Opinion of the Court 22-13355
Marbury’s injuries were not a result of any anything they had done
or failed to do. In an affidavit, Streeter stated that he never attacked
Marbury, nor did he use abusive or excessive force against him.
Bullard stated in his affidavit that he did not abuse any inmate, nor
did he witness any CERT team member abuse Marbury. And
Stewart stated in her affidavit that Marbury’s files did not docu-
ment any incident involving Marbury, or a trip to the infirmary, on
December 3, 2018. She also said that she did not recall Marbury
submitting a complaint to her.
The magistrate judge assigned to the case converted the spe-
cial report into a motion for summary judgment. Marbury filed a
response, submitted supporting documents, including a sworn af-
fidavit, dated over two years after the alleged incident, from an-
other inmate who said that he witnessed Streeter hit Marbury, and
filed a motion for discovery seeking the production of certain doc-
uments. The magistrate judge granted this motion with respect to
Marbury’s medical file from December 3, 2018, to December 16,
2019, any written complaints the Defendants received from Mar-
bury related to the alleged incident, any investigative files, incident
reports, use of force documents, or disciplinary records related to
Marbury and the CERT team search, and the relevant administra-
tive regulations. The Defendants provided Marbury’s medical file
and the regulations in response but stated that they found no other
responsive documents.
Marbury maintained at trial that he went on December 3. An x-ray performed
on December 12, 2018, revealed that Marbury’s nose had a mild fracture.
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22-13355 Opinion of the Court 5
The magistrate judge, in her report and recommendation,
recommended granting the motion as to Marbury’s official capac-
ity claims against the Defendants on Eleventh Amendment
grounds, but recommended denying the motion as to the individ-
ual capacity claims. 4 The district court adopted the report and rec-
ommendation.
The district court later appointed counsel to represent Mar-
bury. Despite this, Marbury himself filed multiple requests for a
subpoena seeking, among other things, video evidence related to
his claims, and he requested funds to hire a video expert technician
to assist in his case. The magistrate judge struck these motions on
the basis that Marbury’s counsel needed to file them. Counsel did
file a request for, among other things: any video footage of the area
at the time of the alleged incident; Marbury’s medical records; any
complaints or grievances Marbury submitted to the Defendants re-
lated to the CERT team shakedown on December 3, 2018, and in-
juries he allegedly sustained; and reports or other records related
to how Marbury suffered his injuries and the CERT team shake-
down. Notably, the Defendants maintained that they were not
aware of any surveillance video documenting the events 5 and
4 The magistrate judge construed Marbury’s complaint as raising an excessive
force claim against Streeter, an excessive force claim against Stewart based on
supervisor liability, and a failure to protect claim against Bullard. And these
were the claims listed in the joint pretrial report.
5 In their amended responses to Marbury’s discovery requests, the Defendants
“admit[ted] that at the time of the incident, security cameras may have cap-
tured these events, but the video has since been recorded over.” However,
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6 Opinion of the Court 22-13355
argued that they had otherwise already produced the relevant doc-
uments in their possession.
Counsel subsequently filed a motion to compel. The mag-
istrate judge granted in part and denied in part this motion, direct-
ing the Defendants to produce, among other things, documents
that discuss or explain how Marbury sustained the injuries docu-
mented by medical records from December 2018 and all docu-
ments Stewart wrote regarding the CERT team search on Decem-
ber 3, 2018. 6 Counsel also received permission to take the deposi-
tion of another inmate, Anders Washington, who was a possible
witness to what allegedly happened, and subsequently added him
to the pretrial witness list.
The case then proceeded to trial. Marbury testified to his
version of events, and Washington testified that he witnessed
Streeter later testified that while cameras were later installed, there were no
cameras inside the dorms at Holman on December 3, 2018.
6 The magistrate judge also said that Marbury could subpoena the Alabama
Department of Corrections (“ADOC”) for certain pieces of evidence, includ-
ing any video recordings of the CERT team shakedown on December 3, 2018.
Marbury issued a subpoena duces tecum to ADOC for, among other things,
all video from Holman and body cams of CERT team members from Decem-
ber 3, 2018, Marbury’s entire inmate file, and reports and documents related
to the source of Marbury’s injuries. In response, ADOC stated that there was
no surveillance or body cam footage from December 3, 2018, and that there
was no investigation reports related to Marbury from December 2018, but
agreed to provide, among other things, his entire inmate file and other medical
records as long as they existed and Marbury paid the fees required by regula-
tion.
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22-13355 Opinion of the Court 7
Streeter assault Marbury. After Marbury rested, the district court
granted a motion for a judgment as a matter of law in favor of Stew-
art and Bullard. The defense presented the testimony of a nurse
that treated Marbury, who testified based on her records that Mar-
bury came to see her on December 5, 2018, and said he was hit in
the head. However, according to her records, Marbury first men-
tioned an altercation with a correctional officer during a December
11 visit and subsequently, on January 4, 2019, mentioned that he
was hit in the face on December 3. Each Defendant also testified
and again denied Marbury’s claims. A jury verdict and judgment
were subsequently entered in favor of Streeter.
This appeal followed.
II.
We review for abuse of discretion a district court’s decisions
as to court-appointed counsel in a civil case, see Dean v. Barber,
951
F.2d 1210, 1216 (11th Cir. 1992), and a district court’s discovery de-
cisions, Burger King Corp. v. Weaver,
169 F.3d 1310, 1315 (11th Cir.
1999). When a party challenges a jury’s verdict, we will not disturb
it unless “there is no material conflict in the evidence, such that no
reasonable person could agree to the verdict reached.” Bhogaita v.
Altamonte Heights Condo. Ass’n,
765 F.3d 1277, 1285 (11th Cir. 2014)
(citing Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261, 1275 (11th Cir.
2008)).
III.
On appeal, Marbury argues that the district court abused its
discretion in denying him the opportunity to dismiss counsel for
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8 Opinion of the Court 22-13355
failing to seek a continuance on the last day of trial until certain
evidence, such as surveillance footage, could be obtained, and so
Marbury could have another inmate come to testify. Marbury also
argues that ADOC and the Defendants improperly denied him dis-
covery of relevant material and that the magistrate judge should
have granted his motions for a subpoena. He asserts that this re-
sulted in a denial of due process and argues that he was denied the
right to present material evidence at trial, which he claims would
have changed the outcome of the case. Marbury asks us to “con-
sider the motion for discovery and motion to subpoena in the man-
ner the law demands” and seeks reversal of the jury verdict and a
remand for further proceedings. 7
We turn first to Marbury’s arguments with respect to ap-
pointed counsel. Like any civil litigant, a prisoner pursuing a § 1983
action “has no absolute constitutional right to the appointment of
counsel.” Poole v. Lambert,
819 F.2d 1025, 1028 (11th Cir. 1987). In-
stead, appointment of counsel is a privilege that is “justified only
by exceptional circumstances, such as where the facts and legal is-
sues are so novel or complex as to require the assistance of a trained
practitioner.”
Id. Below, the magistrate judge determined that
such circumstances existed in this case and appointed counsel to
7 While the exact contours of most of Marbury’s arguments are unclear, “we
read briefs filed by pro se litigants liberally.” Timson v. Sampson,
518 F.3d 870,
874 (11th Cir. 2008).
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22-13355 Opinion of the Court 9
represent Marbury. Now, Marbury alleges that the district court
erred by failing to allow him to remove appointed counsel.
This argument immediately runs into obstacles, both factual
and legal. As for the facts, our review of the record reveals no in-
dication that Marbury asked the district court to allow him to dis-
miss counsel. And Marbury does not point us to evidence that he
ever made this request. Therefore, Marbury is asking us to reverse
and remand on a basis that he never presented below. But “[a]rgu-
ments raised for the first time on appeal are not properly before
this Court.” Hurley v. Moore,
233 F.3d 1295, 1297 (11th Cir. 2000).
“If we were to regularly address questions—particularly fact-bound
issues—that districts court never had a chance to examine, we
would not only waste our resources, but also deviate from the es-
sential nature, purpose, and competence of an appellate court.” Ac-
cess Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004).
Marbury’s claim also fails on the law. First, he fails to iden-
tify any legal basis for the argument that a district court must sua
sponte provide a civil litigant with the opportunity to dismiss ap-
pointed counsel. And second, because a civil litigant has no consti-
tutional right to counsel, it follows that there is no right to effective
assistance of counsel in a civil case. See Mekdeci ex rel. Mekdeci v.
Merrell Nat’l Lab’ys,
711 F.2d 1510, 1522 (11th Cir. 1983). Therefore,
even if Marbury is right that appointed counsel erred by failing to
seek a continuance, he does not have a right to a new trial on this
basis. See
id. In all, Marbury fails to explain how the district court
abused its discretion with respect to appointed counsel and fails to
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10 Opinion of the Court 22-13355
provide any legal basis for this claim. Thus, he is not entitled to
reversal on this issue.
As for the discovery issues, Marbury has not demonstrated
that the district court’s decisions resulted in “substantial harm to
[his] case,” see Carmical v. Bell Helicopter Textron, Inc.,
117 F.3d 490,
493 (11th Cir. 1997), especially in light of the repeated contentions
of the Defendants and ADOC that they turned over the requested
material in their possession and that no video evidence existed.
Moreover, while Marbury is correct that the district court denied
his motions for a subpoena on the basis that his counsel should file
them, his counsel later sought similar material, and thus there is no
cause for reversal on this basis either.
Marbury’s due process argument is similarly flawed. He
cites Mendoza v. Miller,
779 F.2d 1287 (7th Cir. 1985), and Harris v.
MacDonald,
555 F. Supp. 137 (N.D. Ill. 1982), in support of his argu-
ment. Other than the fact that these cases are not precedent to
which we are bound, they are also irrelevant here. Marbury cites
to portions of those opinions that concern the due process require-
ments in prison discipline hearings. In Mendoza, the Seventh Cir-
cuit applied one of its previous decisions, where the court held
“that the Due Process Clause required disclosure of exculpatory ev-
idence or its substance to the defendant in prison disciplinary hear-
ings.” 779 F.2d at 1296 (citing Chavis v. Rowe,
643 F.2d 1281, 1286
(7th Cir. 1981)). And Harris concerned, among other things, a
§ 1983 action raising due process arguments based on the failure to
turn over favorable evidence to a prisoner during a disciplinary
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22-13355 Opinion of the Court 11
proceeding. 555 F. Supp. 3d at 140. Here, however, Marbury’s
claims do not arise from a prison disciplinary proceeding. Moreo-
ver, as noted with respect to the previous issue, while Marbury ar-
gues that the Defendants and ADOC failed to turn over material
evidence, he fails to rebut their response, i.e., that they turned over
what they possessed and that there was no video recording of the
alleged incident. Therefore, Marbury’s due process argument fails.
Finally, while Marbury points to the evidence he presented
below and asks us to reverse “the trial jury verdict,” he did not seek
this relief below by filing a post-verdict motion under either Rule
50(b) or Rule 59 of the Federal Rules of Civil Procedure. 8 The Su-
preme Court has made clear that “a party is not entitled to pursue
a new trial on appeal unless that party makes an appropriate post-
verdict motion in the district court.” Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc.,
546 U.S. 394, 404 (2006). Therefore, Marbury
has “forfeited [his] right to [seek a new trial] on appeal,” and we are
“powerless” to grant his requested relief.
Id. at 404–05.
For these reasons, we affirm the district court’s judgments.
AFFIRMED.
8 Rule 50(b) “sets forth the procedural requirements for renewing a sufficiency
of the evidence challenge after the jury verdict and entry of judgment.”
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394, 400 (2006). Rule 59
allows a district court, on motion, to grant a new trial “after a jury trial, for
any reason for which a new trial has heretofore been granted in an action at
law in federal court.” Fed R. Civ. P. 59(a)(1)(A).
