Trejo v. Compton , 299 F. App'x 405 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 14, 2008
No. 06-10281 Charles R. Fulbruge III
Summary Calendar Clerk
ALFRED TREJO
Plaintiff - Appellant
v.
DONALD L. COMPTON; ET AL
Defendants
DONALD L. COMPTON, Vocational Instructor
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
5:04-CV-80
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Alfred Trejo, a Texas prisoner, appeals the district court’s judgment as a
matter of law1 against his 42 U.S.C. § 1983 claim. Trejo had brought suit
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
FED. R. CIV. P. 50.
No. 06-10281
against Compton, a prison vocational instructor, claiming that a table router
accident in carpentry class that left him with severed fingers was caused by
Compton’s deliberate indifference to his safety.
Trejo first argues that the district court erred in denying his request for
appointment of counsel. A trial court is not required to appoint counsel for an
indigent plaintiff asserting a claim under 42 U.S.C. § 1983 unless the case
presents exceptional circumstances.2 The district court, in a written order,
considered the factors for determining whether to appoint counsel in this case
and its decision was not an abuse of discretion. Accordingly, the district court’s
denial of Trejo’s request for counsel is AFFIRMED.
Regarding Trejo’s appeal from the district court’s judgment as a matter of
law, we cannot conduct the proper de novo review3 without a copy of the
transcript of the trial proceedings. We have held that “[t]he failure of an
appellant to provide a transcript is a proper ground for dismissal of the appeal.”4
However, in that case the court noted that the appellant, after the district court
denied his motion for a transcript, did not reurge the motion with this court.5
Here, in contrast, Trejo did reurge his request for the transcript at the
Government’s expense with this court. We denied his request, finding the trial
transcript was not necessary for Trejo’s preparation of his brief. It is now plain
that the transcript is necessary.
2
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
3
See Price v. Marathon Cheese Corp., 119 F.3d 330, 333 (5th Cir. 1997) (“We review the
district court's decision to grant judgment as a matter of law de novo, applying the same legal
standard as the district court.”).
4
Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990).
5
Id. at 416.
2
No. 06-10281
Accordingly, we ORDER that the transcript be provided to Trejo at the
Government’s expense and allow both Trejo and Compton time to file briefs
prepared with the benefit of the transcript.
3