                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                    File Name: 10a0001p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                 X
                                                  -
 NED MINGUS,
                                                  -
                                Plaintiff-Appellee,
                                                  -
                                                  -
                                                      No. 08-2286
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 SHERILYN BUTLER,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Eastern District of Michigan at Detroit.
              No. 05-73842—Marianne O. Battani, District Judge.
                                Submitted: October 13, 2009
                            Decided and Filed: January 5, 2010
                                              *
 Before: O’CONNOR, Associate Justice; GILMAN and GIBBONS, Circuit Judges.

                                    _________________

                                         COUNSEL
ON BRIEF: John L. Thurber, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Ned Mingus, Jackson, Michigan, pro se.
                                    _________________

                                          OPINION
                                    _________________

        JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Sherilyn Butler
appeals the district court’s interlocutory orders denying her summary judgment on
grounds of qualified immunity from suit under 42 U.S.C. § 1983 and Eleventh
Amendment immunity from suit under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12131 et seq., and denying her summary judgment on plaintiff-appellee Ned


        *
          The Honorable Sandra Day O’Connor, Associate Justice (Ret.) of the Supreme Court of the
United States, sitting by designation.


                                                  1
No. 08-2286        Mingus v. Butler                                                 Page 2


Mingus’s Fourteenth Amendment equal protection claim. For the following reasons,
we AFFIRM in part, REVERSE in part, REMAND for further proceedings, and
DENY Mingus’s motion for appointment of counsel.

                                            I.

       Mingus is a prisoner confined at the G. Robert Cotton Correctional Facility
(“Correctional Facility”) in Jackson, Michigan. Butler, a registered nurse, was the
Health Unit Manager at the Correctional Facility in 2002, the relevant year for the
allegations underlying this case.

       In May 2003, Mingus, who suffers from macular degeneration and other physical
infirmities, filed a civil rights complaint against Butler and eight other defendants,
alleging violations of the Eighth Amendment, the ADA, and state law. The complaint
was based on the defendants’ alleged deliberate indifference to and negligent treatment
of Mingus’s various medical conditions and denial of his requests for a single-occupancy
room with key-operated locks. The district court, adopting the magistrate judge’s Report
and Recommendation, granted in part and denied in part the defendants’ dispositive
motions.   Specifically, it denied Butler qualified immunity on Mingus’s Eighth
Amendment claim and rejected her sovereign immunity defense to an ADA suit in her
official capacity. Report and Recommendation at 23, Mingus v. Antonini, 5:03-cv-
60095-MOB-RSW (E.D. Mich. Feb. 22, 2005). The parties subsequently stipulated to
dismissal without prejudice because the complaint contained unexhausted claims.

       In October 2005, Mingus filed suit against Butler under 42 U.S.C. § 1983 for
violations of the Eighth and Fourteenth Amendments and under the ADA. He sought
declaratory relief, a prospective injunction requiring the Correctional Facility to provide
him with a single-occupancy room, and damages. The exhibits attached to the complaint
document Mingus’s medical history, communications with Butler and her subordinates,
and his appeals through the administrative process. On March 2, 2002, Mingus wrote
to Butler, notifying her that because he could not see his locks, he was unable to protect
his property. In that letter, he remarked, “I am not helpless, and I see the larger world
No. 08-2286         Mingus v. Butler                                                 Page 3


well enough to fend for myself. It’s the little stuff and things a few feet away I can’t
see.” He complained of other inmates, especially able-bodied ones, receiving single-
occupancy rooms when he did not. In her medical notes, one of Butler’s subordinates
wrote that “inmate doesn’t meet criteria for single man cell” and recommended that
Mingus receive key-operated locks. In late March 2002, Mingus again wrote to Butler
regarding his circumstances, indicating his intent to grieve her decision and clarifying
that his “complaint is not just that I can’t see my locks, because I’m vulnerable in many
other ways.” In response, one of Butler’s subordinates again wrote in her medical notes,
“Correspondence from inmate stating he is upset he cannot have single room. . . . Inmate
does not meet criteria for single man room. Discussed this situation with Ms. Butler
. . . .” Throughout the administrative grievance process, Mingus continued to assert that
he feared that he could not protect himself from other inmates and that their “predation
is the direct result of my disability.”

        On February 21, 2008, Butler moved for summary judgment on all counts of the
complaint. She moved on six grounds: (1) Title II of the ADA does not permit suits for
damages against a state official in her individual capacity; (2) Title II of the ADA does
not permit suits for damages against a state official in her official capacity if they are
based on a theory of equal protection; (3) the Eleventh Amendment bars § 1983 suits for
damages against a state official in her official capacity; (4) she was entitled to qualified
immunity on Mingus’s Eighth Amendment theory; (5) Mingus’s Fourteenth Amendment
claims fail under rational basis review; and (6) Mingus could not make a showing of
irreparable harm necessary to warrant injunctive relief because he received his key-
operated locks.

        Butler supplemented the administrative record of Mingus’s grievance with a
Prison Policy Directive and “Guidelines” document. The former directed prison health
personnel to “identify reasonable options available in a corrections setting” to
accommodate a prisoner with a “special medical need.” The latter set forth the criteria
the prison used in assigning single-occupancy rooms. Specifically, it listed certain
medical conditions, such as gender identity disorder, “which may require a single person
No. 08-2286        Mingus v. Butler                                                Page 4


cell.” Although macular degeneration was not listed, the document also allowed that the
“Outpatient Mental Health Team may order a single person cell for reasons other than
those listed above but consistent with their guidelines.”

       The magistrate judge recommended dismissal of Mingus’s individual capacity
ADA claim, official capacity § 1983 claim, and request for injunctive relief regarding
the issuance of key-operated locks. However, he permitted the rest of Mingus’s claims
to proceed. Specifically, he reasoned that Title II of the ADA abrogated state sovereign
immunity in official capacity suits under the Supreme Court’s holding in United States
v. Georgia, 546 U.S. 151, 159 (2006). Relying upon the district court’s orders in the
2003 lawsuit, he held that Butler was not entitled to qualified immunity because there
were disputed issues of material fact regarding the scope of her supervisory authority at
the Correctional Facility, her alleged deliberate indifference to Mingus’s medical
conditions, and her possible awareness of the substantial risks that Mingus’s inability to
see created for him and his property. The magistrate judge then ruled that Mingus’s
Fourteenth Amendment claims could proceed because a jury could find that Butler had
no rational basis for denying Mingus a single-occupancy room when, according to
Mingus’s uncontradicted allegation, other similarly disabled prisoners were given such
rooms. Finally, he allowed Mingus to pursue injunctive relief regarding his request for
a single-occupancy room.

       Butler timely objected to the Report and Recommendation and argued that the
magistrate judge misconstrued the holding of Georgia, incorrectly analyzed qualified
immunity, misapplied Fourteenth Amendment rational-basis analysis, and improperly
second-guessed the discretionary decisions of prison administrators by allowing Mingus
to pursue prospective injunctive relief. On September 19, 2008, the district court
rejected all of Butler’s objections and adopted the Report and Recommendation in full
with emphasis on the importance of Georgia. Butler then timely appealed and, before
us, Mingus moved for appointment of counsel.
No. 08-2286         Mingus v. Butler                                                  Page 5


                                            II.

        We address, in turn, Butler’s assertions of qualified immunity to Mingus’s Eighth
Amendment claim and Eleventh Amendment immunity to the ADA claim, her appeal
of the district court’s denial of summary judgment on the equal protection claim, and
Mingus’s motion for appointment of counsel.

        A. Qualified Immunity

        The district court’s denial of a claim of qualified immunity is immediately
appealable under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). The Supreme Court has “held that 28 U.S.C. § 1291 [cannot] serve as the basis
for appellate jurisdiction for appeals from qualified immunity denials to the extent that
those appeals took issue with the district court’s determination that there existed a
genuine issue of fact for trial.” Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir.
2006) (citing Johnson v. Jones, 515 U.S. 304, 313 (1995)). Although the district court
found that genuine issues of material fact exist, Butler has conceded the facts in the light
most favorable to Mingus and raises a pure issue of law regarding her alleged deliberate
indifference to Mingus’s needs in violation of the Eighth Amendment. See Harrison v.
Ash, 539 F.3d 510, 516-17 (6th Cir. 2008) (requiring that, to appeal a denial of qualified
immunity, “the defendant must be prepared to overlook any factual dispute and to
concede an interpretation of the facts in the light most favorable to the plaintiff’s case”).
We review de novo a district court’s denial of summary judgment on qualified immunity
grounds “because the determination of whether qualified immunity is applicable to an
official’s actions is a question of law.” Farm Labor Org. Comm. v. Ohio State Highway
Patrol, 308 F.3d 523, 531 (6th Cir. 2002) (quotation omitted).

        Qualified immunity is “an affirmative defense that must be pleaded by a
defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Whether a
defendant is entitled to qualified immunity depends upon whether the plaintiff’s
constitutional rights were violated and whether those rights were clearly established.
See, e.g., Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008). This Court may exercise
No. 08-2286         Mingus v. Butler                                                  Page 6


its “sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at
hand.” Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). We conclude that Mingus’s
constitutional rights were not violated.

        In Farmer v. Brennan, the Supreme Court remarked that “having stripped
[inmates] of virtually every means of self-protection and foreclosed their access to
outside aid, the government and its officials are not free to let the state of nature take its
course.” 511 U.S. 825, 833 (1994). The Eighth Amendment protects inmates by
requiring that “prison officials . . . ensure that inmates receive adequate food, clothing,
shelter, and medical care, and . . . ‘take reasonable measures to guarantee the safety of
the inmates.’” Id. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). As
we have explained, the elements of an Eighth Amendment violation have both objective
and subjective components. Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001). “First,
the failure to protect from risk of harm must be objectively sufficiently serious.”
Harrison, 539 F.3d at 518 (internal quotation marks omitted). An inmate must show
“the existence of a sufficiently serious medical need.” Id. (citation and internal
quotations omitted). We evaluate the seriousness of an inmate’s need using an
“obviousness” approach. Blackmore v. Kalamazoo County, 390 F.3d 890, 897 (6th Cir.
2004). Under this approach, the medical needs must be “obvious even to a layperson.”
Id.

        We have applied the first prong of the Eighth Amendment test in varied contexts.
See, e.g., Gibson v. Moskowitz, 523 F.3d 657, 661-62 (6th Cir. 2008) (finding the
dehydration of an inmate who died after being confined in a 90-plus degree observation
room to be an objectively serious medical condition); Blackmore, 390 F.3d at 899-900
(finding that the rapid onset of sharp and severe abdominal pain that was eventually
revealed to be caused by appendicitis evinced an obvious, substantial risk of serious
harm); Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993) (finding an Eighth
Amendment violation where a doctor did not admit a paralyzed inmate to the prison
infirmary); Hamilton v. Eleby, No. 08-4499, 2009 U.S. App. LEXIS 18020, at *7 (6th
No. 08-2286        Mingus v. Butler                                                 Page 7


Cir. Aug. 12, 2009) (holding that an inmate faced an objectively serious risk of harm
when the record showed that he was receiving threatening letters from and had been
previously assaulted by a prison gang).

       Second, the inmate must demonstrate that the official acted with “‘deliberate
indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834. Under this
subjective standard, a prison official cannot be found liable under the Eighth
Amendment “unless the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Id. at 837. Thus, the inmate “must show more than negligence or the
misdiagnosis of an ailment.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
Even though an official need not have acted “for the very purpose of causing harm or
with knowledge that harm will result[,] . . . deliberate indifference to a substantial risk
of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.”
Farmer, 511 U.S. at 835-36; see also Gibson, 523 F.3d at 663 (“The question, however,
is not just whether the state employee has admitted the inmate faced an excessive and
imminent health risk; it is also whether circumstantial evidence, including the very fact
that the risk was obvious, shows the employee must have understood the nature of the
risk.” (citation and internal quotation marks omitted)).

       Butler contends that she is entitled to qualified immunity on Mingus’s Eighth
Amendment claim for two reasons. First, she argues that Mingus’s injury–having his
property stolen by other inmates–is not sufficiently serious to satisfy the first prong of
the Eighth Amendment test. Second, she argues that she was not deliberately indifferent
to the risks Mingus faced from other prisoners because Mingus has, at best, shown only
a difference of opinion over whether he was entitled to a single-occupancy room. The
undisputed facts reveal that Mingus notified Butler of his fear that his ailments made him
“more likely to be preyed upon by other prisoners” because his inability to use his
combination locks forced him to leave his property unlocked and unprotected. He
informed her of the theft of his property and the risks posed to him by other inmates who
No. 08-2286        Mingus v. Butler                                                Page 8


saw him as vulnerable. Thus, as the district court noted, Mingus did not allege that he
was denied medical treatment but, rather, that Butler failed to protect him from the risks
resulting from his deteriorating eyesight and other physical ailments.

       Even if we assume, without deciding, that Mingus faced an objectively serious
risk of harm, Butler was not deliberately indifferent to that risk. In deciding whether to
grant Mingus a single-occupancy room, Butler or her subordinates considered Mingus’s
health care request and the prison’s Guidelines, and concluded that the “inmate does not
meet the criteria for single man cell.” The Guidelines document, which Mingus has not
disputed, lists only two “medical conditions” and a category of “psychological
conditions which may require a single person cell.” The concluding catch-all clause,
providing that the “Outpatient Mental Health Team may order a single person cell for
reasons other than those listed above but consistent with their guidelines,” has no
bearing. While it is possible that Butler did not read this last provision with enough
breadth to cover Mingus’s request, her decision does not evince “deliberate indifference”
to Mingus’s plight. At worst, Butler was negligent and this Court has held that “[w]hen
a prison doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner,
[she] has not displayed a deliberate indifference to the prisoner’s needs, but merely a
degree of incompetence which does not rise to the level of a constitutional violation.”
Comstock, 273 F.3d at 703.

       Butler’s decision was based on her understanding of the prison policies specified
in the Guidelines and did not evince “deliberate indifference” to the risks Mingus faced
from other prisoners. We therefore reverse the district court’s denial of summary
judgment on Mingus’s Eighth Amendment claim.

       B. Eleventh Amendment Immunity

       As with qualified immunity, the district court’s denial of a claim of sovereign
immunity by a state or state entity is immediately appealable under the collateral order
doctrine. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147
(1993). Whether Eleventh Amendment sovereign immunity exists in any particular case
No. 08-2286        Mingus v. Butler                                                 Page 9


is a question of constitutional law that we review de novo. Ernst v. Rising, 427 F.3d 351,
359 (6th Cir. 2005) (en banc).

       The Eleventh Amendment provides: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. In addition to the states themselves,
Eleventh Amendment immunity can also extend to departments and agencies of states.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). To determine
whether a state department or agency can receive Eleventh Amendment immunity, the
primary issue is whether the state itself would be liable for money damages should the
entity be found liable. Brotherton v. Cleveland, 173 F.3d 552, 560-61 (6th Cir. 1999).
Courts also look to other factors such as how state law defines the entity and the degree
of control the state exercises over the entity. Id. at 561 n.5.

       Title II of the ADA provides, in pertinent part, that no qualified individual with
a disability shall, because of that disability, “be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. The ADA applies to both federal and state prisons. Pa.
Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998). It is undisputed that since Butler
has been sued in her official capacity, Mingus’s ADA claim is, for all intents and
purposes, against the state of Michigan as the real party-in-interest.          See, e.g.,
Brotherton, 173 F.3d at 560-61.

       In the district court, Butler argued that the Eleventh Amendment barred Mingus’s
ADA claim because it was based upon a theory of equal protection. To support her
argument, Butler relied on Popovich v. Cuyahoga County Court of Common Pleas, 276
F.3d 808, 811 (6th Cir. 2002) (“[T]he plaintiff’s action is barred by the Eleventh
Amendment in so far as the action relies on congressional enforcement of the Equal
Protection Clause, but it is not barred in so far as it relies on congressional enforcement
of the Due Process Clause.”). The district court held that United States v. Georgia, 546
No. 08-2286        Mingus v. Butler                                               Page 10


U.S. 151 (2006), abrogated Popovich and denied Butler immunity. Mingus v. Butler,
No. 05-73842, 2008 U.S. Dist. LEXIS 73099, at *2-3 (E.D. Mich. Sept. 19, 2008).

       In Georgia, an inmate alleged that certain conduct by prison officials
independently violated his Eighth Amendment rights and Title II of the ADA. 546 U.S.
at 157. Without deciding the accuracy of those allegations, the Court explained that the
inmate’s “claims for money damages against the State under Title II were evidently
based . . . on conduct that independently violated the provisions of § 1 of the Fourteenth
Amendment” because the guarantee against cruel and unusual punishment has been
incorporated into the Due Process Clause of the Fourteenth Amendment. Id. As such,
the plaintiff in Georgia “differ[ed] from the claimants in our other cases addressing
Congress’s ability to abrogate [state] sovereign immunity . . . .” Id. (citing Tennessee
v. Lane, 541 U.S. 509, 543 n.4 (2004) and Bd. of Trustees of Univ. of Ala. v. Garrett, 531
U.S. 356, 362 (2001)). Thus, the Court held that “insofar as Title II creates a private
cause of action for damages against the States for conduct that actually violates the
Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” Id. at 159.

       To guide the lower courts in assessing an Eleventh Amendment defense to a suit
under Title II, the Supreme Court set forth a three-part test:

       [D]etermine . . . on a claim-by-claim basis, (1) which aspects of the
       State’s alleged conduct violated Title II; (2) to what extent such
       misconduct also violated the Fourteenth Amendment; and (3) insofar as
       such misconduct violated Title II but did not violate the Fourteenth
       Amendment, whether Congress’s purported abrogation of sovereign
       immunity as to that class of conduct is nevertheless valid.

Id. In this case, though the district court cited to Georgia, it did not apply the required
three-part test. See Zibbell v. Mich. Dep’t of Human Servs., 313 F. App’x 843, 847 (6th
Cir. 2009) (describing the Georgia procedure as “mandated”).

       For purposes of her motion for summary judgment, Butler has not argued that
Mingus failed to state a claim for relief under Title II. Thus, she has conceded, for the
purposes of this appeal, that the facts would show a violation of Title II of the ADA.
Also, the district court found that there exists a genuine issue of material fact with
No. 08-2286        Mingus v. Butler                                              Page 11


respect to the rational basis for Butler’s actions and, as explained below, we lack
jurisdiction to consider Butler’s appeal of that determination. At this stage in the
litigation, Mingus has alleged misconduct that actually violated the Fourteenth
Amendment–namely, treatment unequal to that received by other disabled inmates.
What remains is the third prong of the Georgia test.

       A review of the complaint reveals that Mingus has alleged that the same
misconduct by Butler violated the Fourteenth Amendment and the ADA independently.
Regarding the former, he alleged that “there is no rational basis for the classification
allowing able bodied prisoners, and those with medical problems less serious than
Plaintiff’s, as qualifying for a single-occupancy room.” As to the ADA, he claimed that
he was being “discriminated against as a result of [his] disability, where other prisoners
with different disabilities, or no disabilities at all, are provided with single-occupancy
rooms.” In both instances, the gravamen of his complaint is that he was treated
differently than similarly situated prisoners or prisoners with fewer, or less serious,
disabilities with no rational basis underlying the disparate treatment. Thus, Mingus has
alleged misconduct that independently violated both Title II of the ADA and the
Fourteenth Amendment. Georgia, 546 U.S. at 159.

       Butler’s reliance upon Popovich is misplaced. In that case, the plaintiff brought
a Title II action against a state court for allegedly failing to provide him with hearing
assistance in his child custody case. Popovich, 276 F.3d at 811. This Court described
the suit as “an equal protection-type claim of discrimination [and] a due process-type
claim of unreasonable exclusion from participation in the custody proceeding.” Id.
Relying upon Garrett, in which the Supreme Court held that the Eleventh Amendment
barred federal employment discrimination suits against a state based on disability under
Title I of the ADA because “disability” is not a “suspect category” that deserves
“heightened scrutiny,” the Popovich court held that the “the plaintiff’s action is barred
by the Eleventh Amendment in so far as the action relies on congressional enforcement
of the Equal Protection Clause.” Id. at 811-12 (citing Garrett, 531 U.S. at 356).
No. 08-2286         Mingus v. Butler                                                Page 12


        In this case, however, Mingus does not claim to deserve heightened scrutiny as
a member of a suspect class but instead challenges the rational basis for Butler’s actions.
Butler has conceded that Mingus has stated a claim for relief under Title II of the ADA
and, in the district court, did not point to facts in the record showing her rational basis
for denying him a single-occupancy room, the conduct underlying both the ADA and
Fourteenth Amendment claims. Thus, he has made a traditional equal protection claim
and not an “equal protection-type claim of discrimination,” Popovich, 276 F.3d at 811.

        Because Mingus has alleged conduct that violates the ADA and the Fourteenth
Amendment independently, the third prong of Georgia requires that we not determine
whether sovereign immunity is at issue. Thus, we have no occasion to elaborate further
on the relationship between Georgia and Popovich, and affirm the district court, albeit
on different grounds.

        C. Fourteenth Amendment

        Finding that Butler had offered no rational explanation for her decision to deny
Mingus a single-occupancy room, the district court denied her summary judgment on
Mingus’s Fourteenth Amendment claim. For the first time on appeal, Butler contends
that she is entitled to qualified immunity. Butler asserted qualified immunity in her
answer to the complaint but did not present it to the district court in seeking summary
judgment. Instead, she merely asserted that she and Mingus had a difference of opinion
on whether he was entitled to a single-occupancy room. Thus, we will adhere “to the
general rule that ‘[i]ssues not presented to the district court but raised for the first time
on appeal are not properly before the court.’” Jones v. Caruso, 569 F.3d 258, 266 (6th
Cir. 2009) (alteration in original, citation omitted). Because qualified immunity is not
properly before us, we lack jurisdiction to consider Butler’s appeal of the district court’s
denial of summary judgment. Floyd v. City of Detroit, 518 F.3d 398, 404 (6th Cir. 2008)
(“The denial of a summary judgment motion usually presents neither a final appealable
order nor an appealable interlocutory order.”). Accordingly, we affirm the district court.
No. 08-2286        Mingus v. Butler                                             Page 13


       D. Appointment of Counsel

       Finally, we deny Mingus’s motion for appointment of counsel pursuant to 6th
Cir. R. 34(j)(2)(C). Although the issues raised by this appeal are complex, we find that
Mingus has more than adequately represented himself.

                                          III.

       For the foregoing reasons, we AFFIRM in part, REVERSE in part, REMAND
for further proceedings, and DENY Mingus’s motion for appointment of counsel.
