Joe L. Baumgarner v. B.B. Malin

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No. 95-3468EA
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Joe L. Bumgarner, *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
B. B. Malin; David Guntharp, * [UNPUBLISHED]
*
Appellees. *
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Submitted: September 3, 1996
Filed: September 26, 1996
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Joe L. Bumgarner, an inmate at an Arkansas correctional facility,
appeals the dismissal of his 42 U.S.C. § 1983 action. Bumgarner alleged
that correctional officials failed to provide safe and orderly housing, an
adequate exercise program, and an adequate law library. The district court
appointed an expert witness to investigate and report on conditions at the
facility. After two pretrial hearings, the district court concluded there
was no evidence of constitutional violations and dismissed Bumgarner's
action. We affirm.
The district court did not abuse its discretion in choosing not to
appoint counsel for Bumgarner. See Edgington v. Missouri Dep't of
Corrections, 52 F.3d 777, 780 (8th Cir. 1995) (standard of review).
Bumgarner's case was not legally or factually complex, and Bumgarner
presented his arguments intelligibly when he testified at the first
pretrial hearing. See id. (listing factors
bearing on appointment of counsel for indigent civil litigants).
Similarly, the district court did not abuse its discretion by refusing to
call Bumgarner's witnesses at the second pretrial hearing. See Salaam v.
Lockhart, 856 F.2d 1120, 1124 (8th Cir. 1988) (district court may exclude
cumulative testimony). Bumgarner's assertion that the judge had ex parte
communications with opposing counsel is unsubstantiated.
Turning to Bumgarner's substantive claims, we review the district
court's findings of fact for clear error, Choate v. Lockhart, 7 F.3d 1370,
1373 n.1 (8th Cir. 1993), and its legal conclusions de novo, Whitmore v.
Gaines, 24 F.3d 1032, 1033 (8th Cir. 1994). Bumgarner failed to show any
injury from shortcomings in the correctional facility's law library and
thus suffered no inroad on his right of access to the courts. See Lewis
v. Casey, 116 S. Ct. 2174, 2180 (1996). Bumgarner also failed to show that
the correctional officials were deliberately indifferent to his exercise
needs. See Wishon v. Gammon, 978 F.2d 446, 448-49 (8th Cir. 1992). The
district court disbelieved Bumgarner's complaints about barracks
conditions, finding the facility to be one of the safest and most livable
correctional units in Arkansas. The court reasonably based its finding on
the testimony of its appointed expert witness, which the court chose to
credit over Bumgarner's conflicting testimony. We do not second-guess the
district court's credibility assessments on appeal. United States v.
Wilson, 49 F.3d 406, 409 (8th Cir.), cert. denied, 116 S. Ct. 384 (1995).
We reject Bumgarner's remaining challenges to the district court's
ruling because they are either without merit or raised for the first time
on appeal. United States v. Dixon, 51 F.3d 1376, 1383 (8th Cir. 1995).
We thus affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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