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

                                                 FILED
                                                                           March 23, 2009
                                     No. 07-11296
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DUNG NGOC HUYNH,

                                                   Plaintiff–Appellant,

v.

JEREMY BAZE; CHRISTOPHER HAM,

                                                   Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:05-CV-28


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Dung Ngoc Huynh, Texas inmate # 1032597, filed a pro se § 1983 civil suit
against correctional officers Jeremy Baze and Christopher Ham, alleging that
they (1) violated the Eighth Amendment by using excessive force against him
during a search of his cell and denying him emergency medical treatment,
(2) committed the tort of assault and battery, and (3) acted negligently. After a
jury trial, the district court granted the defendants’ motion for judgment as a
matter of law. On appeal, Huynh asserts that the district court abused its

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 07-11296

discretion in denying his motions for appointment of counsel and in refusing to
allow him to admit proposed testimony from witnesses not present in court.
      Huynh asserted that he was not able to afford counsel, that he had a very
limited knowledge of the law, that the issues involved in this case were very
complex, that his ability to present his case on his own behalf was limited by his
low I.Q. score, and that it would serve the ends of justice if he were appointed
counsel. The magistrate judge denied Huynh’s requests for appointment of
counsel, stating that Huynh had “not shown any inability to set forth his claims
for relief or shown that any extraordinary circumstances are involved which
would justify the appointment of counsel without charge to plaintiff.”
      Generally, § 1983 plaintiffs have no right to counsel. Jackson v. Cain, 864
F.2d 1235, 1242 (5th Cir. 1989).        Litigants are not entitled to automatic
appointment of counsel, and the district court is not required to appoint counsel
for indigent plaintiffs unless the case presents “exceptional circumstances.” Id.
(citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982)). The district court
can exercise its discretion to appoint counsel where doing so would “advance the
proper administration of justice.” Id. This court reviews the denial of a motion
for the appointment of counsel for abuse of discretion. Castro Romero v. Becken,
256 F.3d 349, 354 (5th Cir. 2001).
      Although there is no comprehensive definition of what constitutes
“exceptional circumstances,” the district court should consider several factors
when determining whether to appoint counsel. Parker v. Carpenter, 978 F.2d
190, 193 (5th Cir. 1992). These factors include (1) the type and complexity of the
case; (2) the plaintiff’s ability to adequately present and investigate the case;
(3) the presence of a majority of evidence consisting of conflicting testimony
which requires skill in the presentation of evidence and in cross- examination;
and (4) the likelihood that the appointment will benefit the plaintiff, the
defendants, and the court by shortening the length of the trial and assisting in
a just determination of the case. Id.

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      There is nothing exceptional about Huynh’s case. Here, the only discrete
legal issue is whether the alleged excessive force and assault, if proven, violated
the Eighth Amendment. There are no unusual evidentiary issues, and the
record reveals that at least until the time of trial, Huynh adequately represented
himself and competently filed numerous motions, pleadings, and responses. At
most, Huynh can make a legitimate argument that an attorney would have been
better suited to question and cross examine witnesses who offered conflicting
testimony. However, this factor alone does not outweigh the others, particularly
because all parties agreed that Baze and Ham did exert physical force in
restraining Huynh and because Huynh was able to provide pertinent evidence
in the form of his medical records. Huynh has not shown that the district court
erred in denying his motions for appointment of counsel. See, e.g., Richardson
v. Henry, 902 F.2d 414, 415, 417 (5th Cir. 1990) (affirming district court’s denial
of motion for appointment of counsel in civil rights action alleging illegal
detention, battery, false arrest, and unconstitutional deprivation of freedom of
speech, assembly, and association).
      Huynh also argues that the district court erred when it refused to grant
his motion to subpoena witnesses or to allow him to submit affidavits containing
potential testimony from the intended witnesses, even after the court learned
that his motion to subpoena witnesses had presumably been lost in the mail.
Huynh asserts that the testimony of his proposed witnesses was crucial to
establishing that Baze and Ham used excessive force. In order to support his
contention that he mailed a motion to subpoena, Huynh attached a notice of
inquiry in which a prison official acknowledged that one letter addressed to the
district court in Amarillo, Texas, and one letter addressed to the Attorney
General of Texas were logged and mailed out on November 11, 2007.
      This court reviews the refusal to issue a subpoena for abuse of discretion.
Gibbs v. King, 779 F.2d 1040, 1047 (5th Cir. 1986). Huynh does not dispute that
he did not timely file a motion to subpoena; in addition, he admits that he did

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not request that the trial be continued until he could subpoena his potential
witnesses. Moreover, Huynh provides no evidence that the legal correspondence
mailed out on November 11, 2007, contained a motion to subpoena witnesses.
Huynh also fails to demonstrate a substantial need for the requested witnesses.
See id. Accordingly, the trial court did not abuse its discretion in refusing to
grant Huynh’s alleged motion for a subpoena.
      Huynh’s assertion that the district court should have entered witness
affidavits into evidence, in lieu of issuing the subpoenas, is equally without
merit. The district court’s admission or exclusion of evidence is reviewed for
abuse of discretion. DeCorte v. Jordan, 497 F.3d 433, 440 (5th Cir. 2007). Even
where error is discovered, it will be considered harmless unless it affects the
appellant’s substantial rights. Id.
      Huynh states that the district court refused to admit his proffered
affidavits because they were not properly presented and because Baze and Ham
would not stipulate as to admissibility. The record contains two affidavits from
proposed inmate witnesses. Neither affidavit is properly notarized but both
contain statements that the declarations were made under the penalty of perjury
and that the statements are true and correct. In his affidavit, inmate Thomas
Mendez asserts that he witnessed the assault by Baze and Ham on Huynh, that
the two slammed Huynh’s head into the wall and then slammed him into the
floor, that they then “consecutively and unnecessarily struck him fast and hard,”
that Baze and Ham held Huynh to the floor with unnecessary force, and that
Huynh was handcuffed the entire time and did not struggle or move. In the
second affidavit, inmate Thomas Meyers simply declares that he would be
willing to testify about the incident in question.
      Although Mendez asserted that Baze and Ham used “unnecessary force,”
his affidavit is conclusory, does not include the date the incident occurred, nor
does he describe where he was located in relation to the action or whether he
heard the verbal exchange between Huynh and the officers. Mendez’s affidavit

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is insufficient to support Huynh’s claims because, as stated previously, Baze and
Ham admit that they used force to subdue Huynh. The only issue is whether the
force was unnecessary and excessive, and Mendez’s affidavit is speculative and
conclusory as to the necessity of force.
      Huynh has not demonstrated that the district court abused its discretion
in refusing to admit the affidavits. Furthermore, Huynh fails to specify how the
affidavits were important to his case. He merely asserts that without witness
testimony or affidavits, he was unable to receive a fair trial. Huynh does not
elaborate on the assertion, which is unsupported by either evidence or legal
authority. Even if the exclusion of the affidavits was error, the error did not
affect Huynh’s substantial rights. The overwhelming medical evidence did not
support Huynh’s claims, and in fact, tended to show that Huynh suffered from
pains many months before the incident in question occurred.
      Although a trial transcript is often necessary for the disposition of an
appeal, Huynh has not demonstrated any particular need for the transcript nor
has he raised a substantial question. See Harvey v. Andrist, 754 F.2d 569, 571
(5th Cir. 1985). The record, including the various filings by both parties, witness
affidavits or declarations, and medical records, is adequate to allow this court to
examine the only issues raised by Huynh. Id. The judgment of the district court
is AFFIRMED.      Huynh’s request for transcripts at government expense is
DENIED.




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