Calton v. Dallas County , 307 F. App'x 809 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 16, 2009
No. 07-11284
Summary Calendar Charles R. Fulbruge III
Clerk
ALLEN FITZGERALD CALTON
Plaintiff-Appellant
v.
NFN JOHNSON, #6445; OFFICER NFN WILLIAMS, #5112; OFFICER NFN
TERRY; OFFICER NFN WALLS; OFFICER NFN MITCHELL
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-2022
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Allen Fitzgerald Calton, Texas prisoner # 1123880, filed a civil rights
complaint alleging, among other things, that he had been denied access to the
prison law library. After prescreening Calton’s case, the district court dismissed
that claim and the defendants against whom the claim had been brought.
Calton’s complaint also alleged that in April 2005, Officers Johnson and Wilson
were deliberately indifferent to his serious risk of suicide due to his mental
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-11284
illness. The officers had given Calton a shaving razor and, when he was left
unsupervised, Calton used the razor to slice his wrists. Calton alleged the same
claim against Officers Terry, Walls, and Mitchell stemming from an identical
incident in July 2005. The district court considered the merits of Calton’s claims
and granted summary judgment in favor of the defendants and against Calton.
On appeal, Calton argues that, after his case had been prescreened, the
district court should have on its own initiative appointed counsel for him. The
justification would have been Calton’s history of mental illness and the fact that
he was taking medication for that illness. He also argues that the district court
erred in denying his motion, filed after the summary judgment motions had been
submitted to the district court, expressly seeking the appointment of counsel.
In that motion, Calton stated that due to the confusion and inability to
concentrate caused by his medication regimen, he would need counsel to
represent him at the trial of this matter.
Despite Calton’s suicidal history, his mental illness, and the effect of his
medications, Calton consistently filed coherent pleadings that demonstrated his
ability to articulate the factual and legal issues of this case. Accordingly, the
district court did not abuse its discretion in failing to appoint counsel. See Cupit
v. Jones, 835 F.2d 82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 213
(5th Cir. 1982). Calton proved himself capable of litigating his own case, and the
case never proceeded to trial. The record demonstrates the district court’s
reasons for the denial of Calton’s motion for the appointment of counsel. A
remand to have the court explain its reasoning is unnecessary. See Jackson v.
Dallas Police Dep’t, 811 F.2d 260, 262 (5th Cir. 1986).
Calton filed motions pursuant to Federal Rules of Civil Procedure 59(e)
and 60(b) challenging the district court’s judgment. Calton sought to submit
evidence that he considered crucial to the success of his claims and of which he
had always been aware. Calton asserted, however, that he had failed to notice
the omission of that evidence when copying his summary judgment declaration
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No. 07-11284
from a draft prepared for Calton by a fellow inmate. Calton contended that his
fellow inmate’s omission was responsible for his own omission. He now
challenges the district court’s denial of his postjudgment motions. Calton has
not shown the extraordinary circumstances that would warrant relief under Rule
59(e) due to his negligent failure to present all of the available facts crucial to his
case in his summary judgment declaration. See ICEE Distribs., Inc. v. J & J
Snack Foods Corp., 445 F.3d 841, 847-48 (5th Cir. 2006); Templet v. HydroChem,
Inc., 367 F.3d 473, 479 (5th Cir. 2004) (“An unexcused failure to present evidence
available at the time of summary judgment provides a valid basis for denying a
subsequent motion for reconsideration.”). For that same reason, Calton has not
shown that the district court abused its discretion in denying his Rule 60(b)
motion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
Calton has also asked that we appoint counsel for him here. In an appeal
in a civil rights case, “exceptional circumstances” are usually needed for
appointment of counsel. Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994).
The issues presented are “neither peculiar nor complex,” and this “record is
sufficient, without further development or argument of counsel to support our
decision in this matter.” Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998),
abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). There are no
exceptional circumstances justifying the appointment of appellate counsel.
We AFFIRM the judgment of the district court. Calton’s motion for the
appointment of counsel is DENIED.
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