Davis v. Rollins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERNEST DAVIS,
Plaintiff-Appellant,
v.
No. 96-6135
JAMES N. ROLLINS, Warden;
ELMANUS HERNDON, Acting
Commissioner,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CA-93-1429-AW)
Submitted: May 14, 1996
Decided: June 18, 1996
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Ernest Davis, Appellant Pro Se. John Joseph Curran, Jr., Attorney
General, Glenn William Bell, OFFICE OF THE ATTORNEY GEN-
ERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ernest Davis appeals from a district court judgment denying relief
on his complaint filed under 42 U.S.C. § 1983 (1988). Davis's action
alleges that prison officials confined him to disciplinary segregation
for ninety days to a cell which lacked an operational toilet or any
working plumbing whatsoever. The district court, following a bench
trial, entered judgment in favor of the Defendants based on its deter-
mination that the events Davis complained of never occurred.
The record contains no transcript of the trial, and Davis has been
granted in forma pauperis status. The government may therefore pro-
vide a free transcript if it is determined that the appeal presents a
"substantial question." See 28 U.S.C.§ 753(f) (1988). Appellants gen-
erally bear the burden of demonstrating non-frivolity and substantial-
ity. See Maloney v. E. I. DuPont de Nemours & Co., 396 F.2d 939,
940 (D.C. Cir. 1967), cert. denied, 396 U.S. 1030 (1970). A "substan-
tial question" has been held to be one that is"reasonably debatable,"
Ortiz v. Greyhound Corp., 192 F.Supp. 903, 905 (D.Md. 1959), or
one "where the law appears to be settled, but where the appellant is
able to show that his chances of changing the law on appeal are
strong." Lee v. Habib, 424 F.2d 891, 905 (D.C. Cir. 1970).
In this case, the district court's decision rested in part upon its find-
ing that Davis was an incredible witness. "Absent compelling evi-
dence to the contrary," this Court will not overturn a district court's
factual determinations regarding witness credibility. United States v.
Locklear, 829 F.2d 1314, 1317 (4th Cir. 1987). In this case, both logic
and the evidence of record only further support the district court's
conclusion that Davis's claims are incredible. As the district court
pointed out in its opinion, the unlikelihood that Davis's fellow
inmates would have passively accepted the odor of feces from Davis's
toilet for ninety days, or the duty of collecting Davis's bodily wastes
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through the trash system, as Davis claimed they did, is readily appar-
ent. Davis does not dispute the district court's notation that not even
the inmates he called to testify on his behalf would corroborate his
claims.
Moreover, prison records contradicted Davis's claims. Prison pol-
icy required inspection of all cells for working plumbing prior to
placement of inmates, and prohibited placement if the plumbing was
not in working order. Guards patrolled the South Wing of the prison
where Davis resided each day, yet did not report any odor or other
problems either on their own or at Davis's request. Nor did prison
records reflect that Davis ever complained, as he said he did, to prison
administrators.
Accordingly, we find no find no reasonably debatable issue justify-
ing provision of a transcript at government expense. The order of the
district court entering judgment in favor of the Defendants is therefore
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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