Smith v. Riley ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-60708
Summary Calendar
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CHARLES SMITH,
Plaintiff-Appellant,
versus
TIM RILEY, ET AL.,
Defendants,
WILLIE L. BROWN; JOHN R. HAYWOOD;
ROBERT LAWRENCE; ANTHONY STANLEY;
MARGARET LITTLE; LINDA DORSEY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(4:95-CV-19-S-B)
_________________________________________________________________
October 7, 1999
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Charles Smith, Mississippi prisoner # 91945, appeals pro se and
in forma pauperis a judgment in favor of the Defendants-Appellees
following a two-day jury trial in October 1998 in this 42 U.S.C. §
1983 action, in which Smith claimed that prison guards used excessive
force, conspired against him, and delayed in giving him medical care.
For the six Defendants, the case went to the jury as to three on
the excessive force issue. The jury found against two of the three
1
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opinion should not be published and is not precedent except under the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.
as to liability; but, as to those two, found that Smith should not
recover damages.
The majority of Smith’s contentions, regarding trial proceedings
and the sufficiency of the evidence, are not reviewable, because
Smith did not include the trial transcript in the record on appeal
(appellant’s duty to provide transcript of all relevant evidence to
support his appellate argument). See FED. R. APP. P. 10(b)(2); Powell
v. Estelle, 959 F.2d 22, 26 (5th Cir.), cert. denied, 506 U.S. 1025
(1992); Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.), cert.
denied, 498 U.S. 901 (1990), and 498 U.S. 1069 (1991).2
Smith challenges the district court’s denial of appointed
counsel. That ruling was not an abuse of discretion because Smith
has not shown “exceptional circumstances” warranting such appointment
for a civil rights action. Jackson v. Dallas Police Dep’t, 811 F.2d
260, 261 (5th Cir. 1986) (internal quotation marks and citation
omitted).3
Smith asserts that the district court erred by delaying in
sending him notice that the trial date had been changed by two days.
He has not shown, however, that he was prejudiced by the change or
that it affected his rights in any way. Because Smith has failed to
2
Although Smith has filed a motion in this court requesting a
transcript at government expense, he failed to do so in district
court, as is required under FED. R. APP. P. 10(b)(1). Moreover, he did
not make his request here until after Appellees submitted their
brief. Smith’s transcript motion is DENIED.
3
Smith has also moved for appointment of counsel on appeal.
Because this case does not present exceptional circumstances, and
because Smith has demonstrated that he is capable of presenting the
issues adequately, the motion is DENIED.
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properly brief this issue, it is deemed abandoned. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
Finally, Smith contends that the district court erred by
refusing to enter a default judgment against defendant-appellee
Brown. The district court acknowledged at trial that it had earlier
stated erroneously that Smith had not moved for default judgment; but
it held, again, that, based on the evidence presented at trial, Smith
had not proved that Brown’s actions resulted in damages. Because
Smith has not provided a copy of the trial transcript, this issue is
not reviewable on appeal. Powell, 959 F.2d at 26; Richardson, 902
F.2d at 416.
AFFIRMED; MOTIONS DENIED
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