Steven D. King v. Jennings Powell

USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11952
Non-Argument Calendar
____________________
STEVEN D. KING,
Plaintiff-Appellant,
versus
CITY OF MOBILE, MOBILE POLICE DEPARTMENT, et al.,
Defendants,
JENNINGS POWELL,
JOSEPH GOFF,
JEFFREY HILLBURN,
USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 2 of 8
2 Opinion of the Court 22-11952
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:15-cv-00610-TFM-N
____________________
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Steven King, pro se, appeals the judgment entered on an ad-
verse jury verdict in his 42 U.S.C. § 1983 action alleging excessive
force during an arrest in 2015. He argues that the district court
abused its discretion by denying his motion for continuance of the
trial, and that appointed counsel performed so inadequately that he
was deprived of his Fifth Amendment due-process rights. After
careful review, we affirm.
I.
King filed a § 1983 civil-rights action stemming from his ar-
rest in May 2015. In 2018, the district court granted summary judg-
ment to the defendants on all claims except one: an excessive-force
claim against several officers of the Mobile Police Department.
Soon after, the court granted King’s motion to appoint counsel.
Then, in May 2019, the court granted the parties’ motion to stay
the case pending the resolution of King’s criminal trial.
USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 3 of 8
22-11952 Opinion of the Court 3
The district court lifted its stay in 2021, and King’s civil jury
trial took place in May 2022. At the outset of the trial, King person-
ally told the court he wanted to fire appointed counsel for ineffec-
tiveness, explaining that counsel refused to subpoena medical rec-
ords and witnesses that King believed were vital to his case. The
court explained that King had the right to represent himself, and
after questioning King, it agreed to let King do so at trial with ap-
pointed counsel as standby.
King then requested a continuance to allow him time to ob-
tain a new lawyer who could subpoena the medical records and
witnesses. When asked for their position on a continuance, the de-
fendants objected, noting that the case had been pending since 2015
and that the exhibit list contained several hundred pages of medical
records. In reply, King stated that he had not yet examined the trial
binder and needed more time to subpoena doctors who could tes-
tify to the findings in his medical records.
The district court denied a continuance. The court ex-
plained that the “case ha[d] been pending for a while” and that the
trial binder already contained “numerous,” uncontested medical
records. It also reasoned that the jury would not need expert testi-
mony to understand the medical records because “the facts of this
case [we]re fairly simple.”
After voir dire, the district court excused the jury so the court
could explain to King that, during the trial, he was prohibited from
discussing the denial of his motion for a continuance. King argued
that he was “being forced to represent [him]self” due to the
USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 4 of 8
4 Opinion of the Court 22-11952
ineffectiveness of his counsel and the court’s refusal to appoint a
new attorney. In response, the court explained that it was not re-
quired to appoint counsel in civil matters, that King was “repre-
senting [him]self because [he] [chose] to represent [him]self,” and
that it was his decision whether to use counsel.
After a recess, but before the jury was seated, the district
court brought to King’s attention all the work that his former coun-
sel had done in preparing King’s case for trial. King ultimately
elected to have counsel try the case for him. Counsel made an
opening statement, examined King, cross-examined the defend-
ants’ witnesses, made a closing argument, and proposed jury in-
structions. At no point during the trial did King object to the rep-
resentation provided by his counsel.
The jury returned a verdict in favor of the defendants. The
district court entered judgment on the verdict, and King appealed.
II.
King maintains that his due-process rights were violated at
trial based on the district court’s denial of a continuance and coun-
sel’s failure to procure King’s witnesses and medical records, which
forced him to try his case without critical evidence. The funda-
mental premise of his argument is that he was denied a fair trial, in
violation of his right to due process, because of the alleged inade-
quacy of appointed counsel’s representation.
This premise is misguided. Although due process protects a
civil litigant’s right to obtain counsel, that right “does not require
the government to provide lawyers for litigants in civil matters.”
USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 5 of 8
22-11952 Opinion of the Court 5
Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1522 n.19 (11th Cir.
1983). That’s because, in contrast to criminal cases, “there is no
constitutional or statutory right to effective assistance of counsel
on a civil case.” Id. at 1522. So “[t]he sixth amendment standards
for effective counsel in criminal cases do not apply in the civil con-
text.” Id. at 1523. “For that reason, a party does not have any right
to a new trial in a civil suit because of inadequate counsel, but has
as its remedy a suit against the attorney for malpractice.” Id.(cleaned up).
Here, King is not entitled to relief based on any potential in-
effectiveness by his appointed counsel in failing to obtain witnesses
and evidence for trial. Regardless of whether counsel was ap-
pointed, King had no constitutional right to effective assistance of
counsel for his civil § 1983 case. See id. at 1522–23. According to
Mekdeci, therefore, no relief from the verdict is available in this ap-
peal for counsel’s alleged ineffectiveness. See id. at 1523. Rather,
King “has as [his] remedy a suit against the attorney for malprac-
tice.” Id.
III.
King also faults the district court for denying a continuance.
We review the denial of a continuance for an abuse of discretion.
Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987). We will
not reverse the denial of a continuance unless the court’s ruling
was “arbitrary, unreasonable, and severely prejudicial.” Sec. &
Exch. Comm’n v. Levin, 849 F.3d 995, 1005 (11th Cir. 2017).
USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 6 of 8
6 Opinion of the Court 22-11952
We have identified five factors to consider in determining
whether a trial continuance is warranted. Id. Those factors include
the following: (1) the requesting party’s diligence in trial prepara-
tion; (2) whether the continuance would meet the movant’s needs;
(3) whether denial would prejudice the movant; (4) whether the
continuance would inconvenience the non-movant; and (5)
whether the trial court had already granted a continuance. Id. at
1005–06.
The district court properly denied King’s motion for a con-
tinuance. That King was unhappy with and wanted to discharge
appointed counsel does not mean he had “an absolute right to con-
tinuance.” Mekdeci, 711 F.2d at 1520 n.12 (“In a civil case, a lawyer’s
withdrawal, much less a mere motion to withdraw, does not afford
the party an absolute right to a continuance.”). “Rather, the deci-
sion is still left to the trial court’s discretion.” Id.
And here, the relevant factors support the district court’s de-
cision to deny a continuance. For starters, the record does not re-
flect that King acted with diligence in raising issues related to coun-
sel’s discovery practices and trial preparation, which King was
aware of before trial. Plus, pushing back trial again, in a case that
had been pending since 2015, would have inconvenienced the de-
fendants and the court, which were ready to go forward with trial
after years of delay.
More importantly, the requested continuance was unlikely
to meet King’s needs for the case. King requested a continuance to
obtain medical records and witnesses to testify about those
USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 7 of 8
22-11952 Opinion of the Court 7
records. 1 But as the district court noted, the joint exhibit list in-
cluded hundreds of pages of undisputed medical records, of which
King was seemingly unaware before trial. The court also reasoned
that expert testimony was not necessary for the jury to understand
the medical records as they related to the specific excessive-force
claim at issue. And as the court noted, King was not necessarily
entitled to substitute counsel or to counsel who would comply
with his demands related to trial strategy. We see nothing to sug-
gest that the court misconstrued the record or otherwise made a
clear error of judgment in concluding that King failed to show that
a continuance was warranted.
We reject King’s claim that the district court improperly de-
ferred to the defendants’ position on continuance. King requested
a continuance during an ex parte session with the court about his
appointed counsel. So before ruling on King’s request, which
would have delayed the trial, the court properly gave the defend-
ants notice and an opportunity to respond. There is nothing im-
proper or out of the ordinary about that. The mere fact that the
court agreed with the defendants does not show that the court
failed to act as a neutral decisionmaker.
Finally, we note that the district court, in going forward with
the trial, attempted to mitigate any prejudice to King by requesting
1 On appeal, King maintains that appointed counsel failed to call “three wit-
nesses to his beating by the police,” one of whom was a police officer. He did
not raise these potential witnesses in seeking a continuance below, though, so
we do not consider them on appeal.
USCA11 Case: 22-11952 Document: 30-1 Date Filed: 08/29/2023 Page: 8 of 8
8 Opinion of the Court 22-11952
that appointed counsel remain in the courtroom on standby. And
counsel ultimately represented King during the trial, generally do-
ing all the things that trial attorneys ordinarily do. Apart from the
alleged failure to obtain evidence and witnesses, which do not pro-
vide a basis for a new trial in a civil case, as we’ve explained above,
King does not suggest counsel’s performance deprived him of a fair
trial.
IV.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED.