Case: 09-10557 Document: 00511414310 Page: 1 Date Filed: 03/17/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 17, 2011
                                     No. 09-10557
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JUAREZ MIGUEL BIBBS,

                                                   Plaintiff-Appellant

v.

LESLIE EARLY; JAMIE BURKHOLDER; RICHARD GIBSON,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 2:05-CV-251


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Juarez Miguel Bibbs, Texas prisoner # 649087, brought an action under
42 U.S.C. § 1983, alleging Texas Department of Criminal Justice (TDCJ) Officers
Leslie Early, Jamie Burkholder, and Richard Gibson retaliated against him for
filing grievances by activating a “purge fan” that caused the temperature in his
cell to drop below freezing for about four hours each time in the early morning
of December 14, 15, and 16, 2004. The jury returned a verdict in favor of the
defendants, and after the denial of his motion for a new trial, Bibbs appealed.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-10557

      Bibbs argues, as he did in his new trial motion, that defense counsel
perpetrated a “fraud upon the court” by concealing a work order on the purge fan
and by falsely stating in response to a pretrial discovery order that TDCJ Major
Fred Early did not personally conduct an investigation into Bibbs’s grievance.
We review the denial of a new trial motion for abuse of discretion. Dresser-Rand
Co. v. Virtual Automation, Inc., 

, 839 (5th Cir. 2004). Attorney
misconduct can warrant a new trial in certain circumstances. Winter v. Brenner
Tank, Inc., 

, 473 (5th Cir. 1991). In addition, federal courts possess
the inherent power to vacate their own judgments on proof that a fraud has been
perpetrated on the court. Fierro v. Johnson, 

, 152 (5th Cir. 1999).
      Bibbs cannot show misconduct by defense counsel, much less fraud on the
court. Bibbs evidently believes that the defendants’ production of documents
pertaining to an independent “air handler” system located below the purge fan
suggests that defense counsel withheld evidence, such as maintenance records,
pertaining to the purge fan. However, nothing in the record suggests that such
records regarding the purge fan existed, and the records custodian testified that
there simply were no work orders for the purge fan. It was reasonable for TDCJ
employees investigating a complaint about the purge fan to compile records
relating to maintenance issues involving the air handler that is installed just
below it. In addition, work order # 05007796, which Bibbs asserts was concealed
by defense counsel, was admitted into evidence at trial, and any error in the
defendants’ failure to produce the document was harmless. See F ED. R. C IV. P.
61. Similarly, Bibbs insists that defense counsel lied when he stated in response
to a pretrial discovery order that Major Fred Early did not personally conduct
an investigation into Bibbs’s grievance. However, a TDCJ grievance investigator
testified that Major Early did not investigate the grievance even though he
received information regarding it.
      Bibbs also appeals numerous evidentiary rulings, which we review for
abuse of discretion. See Abner v. Kan. City So. R.R. Co., 

, 168 (5th

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                                  No. 09-10557

Cir.2008). Relying on Federal Rule of Evidence 402, Bibbs argues that the
district court improperly excluded exhibits showing the temperature when the
purge fan was allegedly activated. However, the district court excluded the
exhibits as unauthenticated, and Bibbs does not show that the documents were
in fact properly authenticated or otherwise explain how the district court abused
its discretion in excluding it. Cf. F ED. R. E VID. 104(b), 901. Also, the district
court correctly excluded another prisoner’s grievance because it was not relevant
to Bibb’s claim that TDCJ officers retaliated against Bibbs.         See Jones v.
Greninger, 

, 324-25 (5th Cir. 1999) (holding that in order to state
a valid claim for retaliation under § 1983, a prisoner must allege, among other
things, “the defendant’s intent to retaliate against the prisoner for his or her
exercise” of a constitutional right (emphasis added)). Bibbs argues that the
district court denied him the opportunity to question Windham regarding TDCJ
grievance procedures and denied him the opportunity to question Calvin Askins
regarding a business records affidavit. In fact, the transcript shows that the
court allowed Bibbs to question both witnesses and simply ruled that Bibbs
should ask questions instead of making statements.
      Although Bibbs argues that the district court erred in denying his motion
for appointment of counsel, a § 1983 plaintiff is not entitled to appointment of
counsel absent exceptional circumstances. See Ulmer v. Chancellor, 

, 212 (5th Cir. 1992). In addition, Bibbs has failed to show any error in the
district court’s denial without prejudice of his pretrial motion to transcribe the
proceedings. See 28 U.S.C. § 753(f).
      For the first time on appeal, Bibbs also argues that defense counsel falsely
stated during a pretrial hearing that work order # 05007796 did not exist, falsely
stated during the trial that he did not know what Bibbs was talking about when
Bibbs objected to defense counsel’s alleged failure to comply with a discovery
order, and failed to produce Officer Burkholder’s disciplinary records despite a
request for production of those documents. In addition, Bibbs argues for the first

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time on appeal that defense counsel violated Bibbs’s constitutional due process
rights, and he complains that the district court failed to determine the
admissibility of his exhibits prior to trial, violated his constitutional right to due
process by refusing to allow him to approach the bench, and demonstrated bias
toward him. We will not consider an issue that a party fails to raise in the
district court absent extraordinary circumstances. AG Acceptance v. Veigel, 

, 700 (5th Cir. 2009). Such extraordinary circumstances exist when the
issue involved is a pure question of law and a miscarriage of justice would result
from the failure to consider it. 

decline to consider these
arguments.
      AFFIRMED; MOTION FOR SANCTIONS AND FOR COSTS DENIED.




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