                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                    FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                              July 3, 2008
                            No. 07-15101                  THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                  D. C. Docket No. 03-00307-CV-CAR-5

DANNY J. HICKS,


                                                          Plaintiff-Appellant,

                                 versus

JOE FERRERO,
et al.,

                                                                 Defendants,

RALPH BATTLE,
ARTHUR J. GORDON,


                                                       Defendants-Appellees.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                    _________________________

                             (July 3, 2008)
Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Appellant Danny J. Hicks, a state prisoner proceeding pro se, appeals from a

judgment entered on a jury verdict rendered in favor of the defendants, Ralph

Battle, the warden at Bostick State Prison (“BSP”) in Georgia, and Arthur Gordon,

deputy warden at BSP, on Hicks’s First Amendment retaliation claim.

      On appeal, Hicks argues first that the district court abused its discretion in

denying his requests for counsel prior to trial. Second, he argues that the court

erred in finding that he could not recover compensatory damages under 42 U.S.C.

§ 1997e(e) on his retaliation claim. Third, he contends that the court erred in

admitting defense exhibits at trial because the defendants failed to disclose the

exhibits to him and the exhibits were unfairly prejudicial and cumulative. Fourth,

he argues that the court plainly erred in instructing the jury on his burden of

proving his claim by a preponderance of the evidence. Finally, Hicks argues that

he was unfairly prejudiced by his unclean appearance at trial and because the trial

judge yelled at him and limited his questioning of the defendants during their

testimony.

                                           I.

      We review a district court’s decision to deny a plaintiff’s motion for



                                           2
appointment of counsel for an abuse of discretion. Bass v. Perrin, 170 F.3d 1312,

1320 (11th Cir. 1999). Although a court may, pursuant to 28 U.S.C. § 1915(e)(1),

appoint counsel for an indigent plaintiff, it has broad discretion in making the

decision and should only appoint counsel in exceptional circumstances. Id. We

previously have affirmed the district court’s denial of a plaintiff’s motion to

appoint counsel, which required the plaintiff to represent himself pro se at a trial

on his 42 U.S.C. § 1983 suit. Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.

1990). In doing so, we noted that the plaintiff demonstrated that he was “an

accomplished writ writer who was capable of representing himself adequately,”

and his “claims [were] relatively straightforward and involve[d] incidents which

took place in the prison, most of which plaintiff witnessed himself.” Id.

      Here, we conclude from the record that the district court did not abuse its

discretion in denying Hicks’s multiple requests for counsel because exceptional

circumstances did not exist. Because Hicks demonstrated the ability to represent

himself and his retaliation claim against the two defendants was straightforward,

the denial of his requests for counsel was within the district court’s discretion.

                                           II.

      We review questions of law de novo. McCoy v. Webster, 47 F.3d 404, 406

(11th Cir. 1995). A district court’s refusal to give a plaintiff’s requested jury



                                           3
instruction regarding damages is harmless if the jury determined that the

defendants were not liable and therefore never considered the issue of damages.

Jennings v. BIC Corp., 181 F.3d 1250, 1260 (11th Cir. 1999).

      “[C]ompensatory damages under § 1983 may be awarded only based on

actual injuries caused by the defendant and cannot be presumed or based on the

abstract value of the constitutional rights that the defendant violated.” Slicker v.

Jackson, 215 F.3d 1225, 1229 (11th Cir. 2000). Such damages may be based on

monetary loss, physical pain and suffering, mental and emotional distress,

impairment of reputation, or personal humiliation. Id. at 1231. However, pursuant

to 42 U.S.C. § 1997e(e), a prisoner bringing a § 1983 action must demonstrate

more than de minimus physical injury in order to recover for mental or emotional

injury suffered while in custody. Dixon v. Toole, 225 Fed. Appx. 797, 799 (11th

Cir. 2007); Harris v. Garner, 190 F.3d 1279, 1286-87 (11th Cir.), opinion

reinstated in part on reh’g, 216 F.3d 970 (11th Cir. 2000).

      We conclude from the record that the district court did not err in determining

that Hicks could not recover compensatory damages on his First Amendment

retaliation claim. He did not allege any physical injury, monetary loss, or other

actual injury related to the retaliation claim. Even assuming that he suffered some

mental or emotional injury from the alleged retaliation, § 1997e(e) barred him from



                                           4
recovering compensatory damages for such an injury because he did not allege any

physical injury. In any event, any possible error in the court’s damages

instructions was harmless because the jury found that the defendants did not

violate Hicks’s First Amendment rights.

                                          III.

      “We review a district court’s evidentiary rulings for abuse of discretion.”

United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992). If a party fails to

object to evidence introduced at trial, we will review the admission of the evidence

for plain error only. See Wilson v. Attaway, 757 F.2d 1227, 1242 (11th Cir. 1985).

      All relevant evidence, or evidence that makes a fact of consequence more or

less probable, is generally admissible at trial. Fed. R. Evid. 401, 402. Under Rule

403, otherwise relevant evidence may be excluded if “its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Fed. R. Evid. 403. Because Rule

403 allows the exclusion of otherwise probative evidence, it must only be used

sparingly and the district court must strike the balance in favor of admissibility.

Fortenberry, 971 F.2d at 721.

      First, the record does not support Hicks’s claim that the defendants never



                                           5
disclosed to him sentencing reports or any other exhibits that they used at trial.

Second, we conclude that the district court did not abuse its discretion in admitting

evidence of Hicks’s criminal history, escape from prison, and possession of a knife

in prison. This evidence was relevant to the defendants’ argument that they

increased Hicks’s security classification for legitimate reasons, and the record does

not demonstrate that its probative value was substantially outweighed by the

danger of unfair prejudice or that it was needlessly cumulative. Therefore, we

conclude that the district court acted within its discretion in admitting this

evidence.

                                           IV.

      Generally, if a party failed to object to a district court’s jury instructions, we

will review the instructions for plain error only. See Farley v. Nationwide Mut.

Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999) (citing Fed.R.Civ.P. 51). Under the

plain error standard, there must be: (1) error; (2) that was plain; (3) that affected a

party’s substantial rights; and (4) failure to correct the error would “seriously affect

the fairness of the judicial proceeding.” Id.

      If the district court’s instructions accurately reflect the law, then it “is given

wide discretion as to the style and wording employed in its instruction.” Bogle v.

McClure, 332 F.3d 1347, 1356-57 (11th Cir. 2003). According to the conventional



                                            6
rule of civil litigation, a plaintiff must prove his case by a preponderance of the

evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99, 123 S. Ct. 2148, 2154,

156 L. Ed. 2d 84 (2003). Thus, in the § 1983 context, a plaintiff must prove that it

is more likely than not that the defendant violated his constitutional rights. See

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. __, __, 127 S. Ct. 2499,

2513, 168 L. Ed. 2d 179 (2007).

       We conclude from the record that the district court did not plainly err in

instructing the jury on Hicks’s burden of proof. The initial instruction on burden

of proof correctly stated the legal standard, and the court’s reminder to the jury

about the preponderance standard, in response to a jury question, was not

erroneous or prejudicial to Hicks. Thus, the record does not reveal any plain error

in this regard.

                                            V.

       If a party does not timely object to a trial judge’s actions at trial, such as

when the jury is not present, we will review the actions for plain error only.

Watkins v. Bowden, 105 F.3d 1344, 1352 n.16 (11th Cir. 1997).

       A trial judge has the duty to “prevent injustice” and “guard the integrity and

fairness of the proceedings before him.” Christopher v. Florida, 449 F.3d 1360,

1366 n.4 (11th Cir. 2006). “Comments by the trial judge will cause reversal only



                                             7
where the comments excite a prejudice which would preclude a fair and

dispassionate consideration of the evidence.” Brough v. Imperial Sterling Ltd., 297

F.3d 1172, 1180-81 (11th Cir. 2002) (internal quotations and citation omitted). “It

has long been recognized and frequently reaffirmed that a federal trial judge is not

relegated to the position of a mere moderator, but may, by timely interventions,

elicit testimony from witnesses, comment on the evidence to the jury, and limit the

questioning of counsel.” United States v. Cheramie, 520 F.2d 325, 333 (5th Cir.

1975) (citation omitted).1 In exercising these powers, the judge should avoid

assuming the role of an advocate. Watkins, 105 F.3d at 1352 n.16.

       Initially, we note that Hicks never raised any error at trial regarding his

unclean appearance, the judge yelling at him, or the judge limiting his questioning

of the defendants.2 Moreover, review of the record does not reveal that Hicks was,

in fact, “stinky and nasty” at trial or that the judge yelled at him. Even assuming

that those factual allegations are true, the record reveals no prejudice stemming

therefrom. Additionally, the judge acted within his power in limiting Hicks’s


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.

       2
         Although Hicks raised some of these errors in his motion for a new trial, the district
court’s denial of that motion came after he filed the notice of appeal and thus, is not properly
before us on appeal. See Fed. R. App. P. 4(a)(4)(B)(i); Bogle v. Orange County Bd. of County
Comm’rs, 162 F.3d 653, 661 (11th Cir. 1998).

                                                 8
questioning of the defendants, when they were testifying as witnesses. Therefore,

we conclude that none of these alleged sources of prejudice constituted plain error.

      For the above-stated reasons, we affirm the district court’s judgment entered

in favor of the defendants on the jury verdict.

      AFFIRMED.




                                           9
