USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1799
NORBERTO ANDRADE,
Plaintiff, Appellant,
v.
JOHN J. MORAN, ETC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Norberto Andrade on brief pro se.
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David J. Gentile, Senior Legal Counsel, Department of
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Corrections, on Memorandum in Support of Motion for Summary
Disposition for appellees.
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January 13, 1994
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Per Curiam. Plaintiff Norberto Andrade filed an
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action pursuant to 42 U.S.C. 1983 claiming that Rhode
Island correctional personnel had used excessive force to
restrain him and had provided inadequate medical care in
violation of the Eighth Amendment. Following the dismissal
of three of the five defendants, a jury trial was held
resulting in verdicts in favor of the remaining two
defendants.
1. The district court permitted plaintiff to
proceed in forma pauperis. Plaintiff argues that it also
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should have granted his request for the appointment of
counsel. Counsel in civil cases are appointed only in
"exceptional circumstances." DesRosiers v. Moran, 949 F.2d
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15, 23 (1st Cir. 1991). In determining whether a party has
met this standard, "a court must examine the total situation,
focusing, inter alia, on the merits of the case, the
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complexity of the legal issues, and the litigant's ability to
represent himself." Id. at 24. Further, on our review of
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the record, we will reverse the district court's decision
"only if the record, taken as a whole, reflects a manifest
abuse of the trial court's broad discretion." Id.
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Although there is support for plaintiff's claim
that he is illiterate, this same evidence -- a psychologist's
evaluation -- describes plaintiff as bright, alert and, in
terms of his mental functioning, able to "deliver a
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reasonable stream of clear ideas that were pertinent and well
connected to the subjects being discussed." Thus, we do not
believe that plaintiff's ability to represent himself was
significantly hampered by his illiteracy. Further, his
complaint concerned events that had occurred during a single
day and the applicable Eighth Amendment standards are not
particularly complicated. As a result, we find no abuse of
discretion in the district court's decision not to appoint
counsel to represent plaintiff.
2. As far as we can determine, plaintiff's second
argument on appeal concerns the sufficiency of the evidence
as to exactly how he received a cut on his head during the
incident in question. Specifically, plaintiff refers to the
testimony of one of the defendants at the state trial
(plaintiff was charged with assault upon a correctional
officer on the basis of the events giving rise to this 1983
action). According to plaintiff, this defendant at the state
trial testified that he did not know how plaintiff had
received the laceration on his head. Apparently, the same
defendant at the district court trial gave a conflicting
account of how plaintiff's injury occurred.
Without a transcript of either the state or federal
court trials, it is not possible for us to review this claim.
Fed. R. App. P. 10(b)(2) provides:
If the plaintiff intends to urge on
appeal that a finding or conclusion is
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unsupported by the evidence or is
contrary to the evidence, the plaintiff
shall include in the record a transcript
of all evidence relevant to such finding
or conclusion.
As for the district court proceedings, "[t]he burden is on
the plaintiff to provide this court with an appendix
sufficient to support [his] points on appeal." United States
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v. One Motor Yacht, 527 F.2d 1112, 1113 (1st Cir. 1975)
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(appendix did not include transcript of hearing before
district court). "Where a plaintiff raises issues that are
factually dependant yet fails to provide a transcript of the
pertinent proceedings in the district court, this circuit has
repeatedly held that we will not review the allegations."
Muniz Ramirez v. Puerto Rico Fire Services, 757 F.2d 1357,
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1358 (1st Cir. 1985). See also Fisher v. Krajewski, 873 F.2d
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1057, 1060, 1068 (7th Cir. 1989) (in the absence of the
transcript, it is not possible to review rulings made from
the bench and the court "will not render a judicial decision
founded on speculation"), cert. denied, 493 U.S. 1020 (1990).
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We are aware of plaintiff's indigent status and
that he filed, in the district court, a request for the trial
transcript under 28 U.S.C. 753(f) (A transcript paid for by
government is available only if the trial judge "certifies
that the appeal is not frivolous (but presents a substantial
question)."). The district court denied plaintiff's request,
finding that plaintiff wanted the entire transcript
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essentially for the purpose of having a "retrial" of the
evidence on appeal. Because he had already had a "full and
fair opportunity" to present all of his evidence before the
jury, the court determined that his appeal failed to assert a
substantial question of law.
Indigence, however, does not relieve plaintiff of
the burden to produce the transcript under Rule 10(b)(2).
See Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.) (court
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would dismiss pro se appeal concerning his sufficiency of the
evidence claim despite plaintiff's inability to afford a
transcript), cert. denied, 498 U.S. 901 (1990); Thomas v.
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Computax Corp., 631 F.2d 139, 142-43 (9th Cir. 1980)
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(inability to pay for transcript does make it "unavailable"
within the meaning of Rule 10(c) which allows plaintiff to
prepare a statement of evidence based on his or her
recollection; court dismissed appeal).
Plaintiff has not renewed his request for a
transcript in this court nor has he appealed the district
court's denial under 753(f). In any event, the fact that a
witness gave inconsistent testimony at a prior trial does not
itself raise a substantial question. Credibility
determinations are solely reserved for the jury. See Glasser
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v. United States, 315 U.S. 60, 80 (1942). Thus, even taking
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plaintiff's claim at face value, there is no merit to the
appeal.
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The judgment of the district court is affirmed.
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