Arthur Taylor, Jr. v. Pulliam , 679 F. App'x 264 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6509
ARTHUR TAYLOR, JR.,
Plaintiff – Appellant,
v.
PULLIAM, Correctional Officer; S. FULLER,
Defendants – Appellees,
and
DEPARTMENT OF CORRECTIONS; HENDERSON, Correctional Officer;
DR. WANG; C. MAYES; C. A. MANIS; SPECIAL AGENT CRAIG
O’DER; MAJOR THOMAS MEYER; PATRICIA JONES, R.N.; BARRY
CRANE; JOHN DOE, The Medical Administrator of Green Rock,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (7:14-cv-00641-JLK-RSB)
Submitted: December 2, 2016 Decided: February 10, 2017
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Arthur Taylor, Jr., Appellant Pro Se. Margaret Hoehl O’Shea,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Arthur Taylor, Jr., appeals the district court’s orders
dismissing in part his complaint, granting in part Defendants’
motion for summary judgment, and entering judgment in favor of
Defendants David Pulliam and Stephen Fuller (“Trial Defendants”)
following a jury verdict in their favor. Taylor filed suit
against Trial Defendants and others pursuant to 42 U.S.C. § 1983(2012), alleging excessive use of force, denial of meaningful
medical care, assault and battery, and denial of protections
under the Americans with Disabilities Act and the Rehabilitation
Act. All claims and Defendants were dismissed prior to trial,
with the exception of Taylor’s claim against Trial Defendants
for excessive use of force in violation of the Eighth Amendment.
Giving liberal interpretation to Taylor’s informal brief,
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), Taylor
argues that his civil rights were violated by various
Defendants, and he argues that the jury’s verdict was against
the weight of the evidence. Taylor also argues that his Sixth
Amendment and Due Process Clause rights were violated by the
district court’s refusal to appoint counsel. Finally, Taylor
contends that the district court erred in refusing to allow him
to (1) present photographic evidence of his injuries, and
(2) have witnesses testify at trial.
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As to Taylor’s first argument, he alleges no specific error
in the district court’s determination that several of his claims
were insufficient to survive summary dismissal or a motion for
summary judgment, and that Taylor’s claim against Doctor
Lawrence Wang should be dismissed for failure to prosecute.
Having failed to allege any error in the district court’s
substantive conclusions, Taylor has waived review of those
determinations. See 4th Cir. R. 34(b); Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009).
Furthermore, to the extent that Taylor seeks to challenge the
jury’s verdict as being against the weight of the evidence, he
failed to file a postjudgment motion pursuant to Federal Rule of
Civil Procedure 50 or 59(a) * within 28 days of the judgment.
Accordingly, Taylor’s challenge to the jury’s verdict is
foreclosed. Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146,
153-60 (4th Cir. 2012).
Regarding Taylor’s argument that his Due Process Clause and
Sixth Amendment rights were violated by the district court’s
denial of his motion to appoint counsel, civil litigants have no
constitutional right to counsel, and a district court’s refusal
*
Under Rule 59(a), “the district court must set aside the
verdict and grant a new trial if . . . the verdict is against
the clear weight of the evidence.” Minter v. Wells Fargo Bank,
N.A., 762 F.3d 339, 346 (4th Cir. 2014) (internal quotation
marks and brackets omitted).
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to appoint counsel is reviewed only for abuse of discretion.
See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984),
abrogated on other grounds by Mallard v. U.S. Dist. Court for
the S. Dist. of Iowa, 490 U.S. 296 (1989). A district court
should appoint counsel if “a pro se litigant has a colorable
claim but lacks the capacity to present it.” Id. The record
establishes that Taylor was capable of adequately presenting his
claims, and we therefore conclude that the district court did
not abuse its discretion in denying his motion to appoint
counsel.
Finally, Taylor argues that the district court erred by not
allowing him to present photos or witnesses to the jury. At
trial, Taylor attempted to introduce photos of his injuries to
the jury, but the district court excluded the photos on the
ground that Taylor failed to disclose the evidence prior to
trial. The court likewise informed Taylor that he could not
present witnesses because he failed to present a witness list
prior to trial.
“We review for an abuse of discretion both the district
court’s finding of a disclosure violation and its decision to
exclude evidence as a discovery sanction.” Russell v. Absolute
Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014).
Pursuant to Federal Rule of Civil Procedure 37, a
party who fails to comply with the disclosure
requirements of Rule 26(a) . . . is not allowed to use
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that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.
Id. (internal quotation marks and ellipses omitted). In
determining whether evidence should nevertheless be admitted,
courts consider the following five factors:
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the
evidence
Id. at 396-97.
After thoroughly reviewing the record, we conclude that the
five factors weigh in favor of excluding any witness testimony
that Taylor intended to present.
In contrast, although the five factors may have weighed in
favor of admitting Taylor’s photographic evidence, we find that
the court’s decision to exclude the photographs constitutes
harmless error. See Bank of Montreal v. Signet Bank, 193 F.3d
818, 834 (4th Cir. 1999) (applying harmless error analysis to
decision to exclude evidence in a civil case). To prove the use
of excessive force in violation of the Eighth Amendment, Taylor
was required to demonstrate that “the prison official acted with
a sufficiently culpable state of mind (subjective component) and
. . . the injury inflicted . . . was sufficiently serious
(objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th
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Cir. 2008). The core inquiry rests on “whether force was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992). The extent of injury
suffered may be relevant to whether the force was necessary and
indicative of the amount of force applied. Wilkins v. Gaddy,
559 U.S. 34, 37-38 (2010).
In this case, however, the proffered evidence, photographs
of Taylor’s injuries, was not relevant to whether Trial
Defendants applied force in a good-faith effort to restore
discipline, or maliciously and sadistically to cause harm. The
only evidence introduced on that issue was the testimony of
Taylor, Fuller, and Pulliam, the only individuals present when
force was applied, who all gave the same account: Taylor
suffered an injury to his arm while being handcuffed by the
correction officers. Notably, Taylor never testified that the
extent of his injuries was different from what was described by
the Trial Defendants. Accordingly, photographs of Taylor’s
injuries would have no relevance to the credibility of those
witnesses or whether the Trial Defendants acted maliciously or
sadistically to cause Taylor’s injuries. The exclusion of the
photographs therefore did not affect the outcome of the trial.
Accordingly, we affirm the district court’s orders and
judgment. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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