                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-6509


ARTHUR TAYLOR, JR.,

                Plaintiff – Appellant,

          v.

PULLIAM, Correctional Officer; S. FULLER,

                Defendants – Appellees,

          and

DEPARTMENT OF CORRECTIONS; HENDERSON, Correctional Officer;
DR.   WANG; C. MAYES; C. A. MANIS; SPECIAL AGENT CRAIG
O’DER; MAJOR THOMAS MEYER; PATRICIA JONES, R.N.; BARRY
CRANE; JOHN DOE, The Medical Administrator of Green Rock,

                Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     Jackson L. Kiser, Senior
District Judge. (7:14-cv-00641-JLK-RSB)


Submitted:   December 2, 2016               Decided:   February 10, 2017


Before DIAZ, THACKER, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Arthur Taylor, Jr., Appellant Pro Se. Margaret Hoehl O’Shea,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Arthur     Taylor,   Jr.,    appeals   the    district    court’s    orders

dismissing in part his complaint, granting in part Defendants’

motion for summary judgment, and entering judgment in favor of

Defendants David Pulliam and Stephen Fuller (“Trial Defendants”)

following a jury verdict in their favor.                   Taylor filed suit

against Trial Defendants and others pursuant to 42 U.S.C. § 1983

(2012), alleging excessive use of force, denial of meaningful

medical care, assault and battery, and denial of protections

under the Americans with Disabilities Act and the Rehabilitation

Act.     All claims and Defendants were dismissed prior to trial,

with the exception of Taylor’s claim against Trial Defendants

for excessive use of force in violation of the Eighth Amendment.

       Giving liberal interpretation to Taylor’s informal brief,

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), Taylor

argues     that     his     civil   rights    were     violated     by     various

Defendants, and he argues that the jury’s verdict was against

the weight of the evidence.            Taylor also argues that his Sixth

Amendment and Due Process Clause rights were violated by the

district court’s refusal to appoint counsel.                     Finally, Taylor

contends that the district court erred in refusing to allow him

to   (1)   present     photographic     evidence      of   his    injuries,    and

(2) have witnesses testify at trial.



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       As to Taylor’s first argument, he alleges no specific error

in the district court’s determination that several of his claims

were insufficient to survive summary dismissal or a motion for

summary      judgment,       and      that    Taylor’s        claim     against      Doctor

Lawrence      Wang    should    be     dismissed      for     failure    to    prosecute.

Having      failed    to     allege    any    error      in    the    district       court’s

substantive        conclusions,        Taylor      has   waived       review    of    those

determinations.         See 4th Cir. R. 34(b); Wahi v. Charleston Area

Med.       Ctr.,     Inc.,     562     F.3d       599,    607    (4th     Cir.        2009).

Furthermore, to the extent that Taylor seeks to challenge the

jury’s verdict as being against the weight of the evidence, he

failed to file a postjudgment motion pursuant to Federal Rule of

Civil Procedure 50 or 59(a) * within 28 days of the judgment.

Accordingly,         Taylor’s      challenge        to   the     jury’s       verdict    is

foreclosed.          Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146,

153-60 (4th Cir. 2012).

       Regarding Taylor’s argument that his Due Process Clause and

Sixth Amendment rights were violated by the district court’s

denial of his motion to appoint counsel, civil litigants have no

constitutional right to counsel, and a district court’s refusal

       *
       Under Rule 59(a), “the district court must set aside the
verdict and grant a new trial if . . . the verdict is against
the clear weight of the evidence.” Minter v. Wells Fargo Bank,
N.A., 762 F.3d 339, 346 (4th Cir. 2014) (internal quotation
marks and brackets omitted).



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to appoint counsel is reviewed only for abuse of discretion.

See   Whisenant       v.   Yuam,   739    F.2d   160,    163    (4th    Cir.    1984),

abrogated on other grounds by Mallard v. U.S. Dist. Court for

the S. Dist. of Iowa, 490 U.S. 296 (1989).                      A district court

should appoint counsel if “a pro se litigant has a colorable

claim but lacks the capacity to present it.”                     Id.      The record

establishes that Taylor was capable of adequately presenting his

claims, and we therefore conclude that the district court did

not   abuse     its    discretion    in    denying      his    motion   to     appoint

counsel.

      Finally, Taylor argues that the district court erred by not

allowing him to present photos or witnesses to the jury.                             At

trial, Taylor attempted to introduce photos of his injuries to

the jury, but the district court excluded the photos on the

ground   that    Taylor     failed   to    disclose     the    evidence      prior   to

trial.     The court likewise informed Taylor that he could not

present witnesses because he failed to present a witness list

prior to trial.

      “We review for an abuse of discretion both the district

court’s finding of a disclosure violation and its decision to

exclude evidence as a discovery sanction.”                    Russell v. Absolute

Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014).

      Pursuant to Federal Rule of Civil Procedure 37, a
      party who fails to comply with the disclosure
      requirements of Rule 26(a) . . . is not allowed to use

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        that information or witness to supply evidence on a
        motion, at a hearing, or at a trial, unless the
        failure was substantially justified or is harmless.

Id.     (internal    quotation      marks     and      ellipses   omitted).      In

determining       whether   evidence    should       nevertheless     be   admitted,

courts consider the following five factors:

        (1) the surprise to the party against whom the
        evidence would be offered; (2) the ability of that
        party to cure the surprise; (3) the extent to which
        allowing the evidence would disrupt the trial; (4) the
        importance of the evidence; and (5) the nondisclosing
        party’s explanation for its failure to disclose the
        evidence

Id. at 396-97.

        After thoroughly reviewing the record, we conclude that the

five factors weigh in favor of excluding any witness testimony

that Taylor intended to present.

        In contrast, although the five factors may have weighed in

favor of admitting Taylor’s photographic evidence, we find that

the     court’s    decision   to    exclude      the    photographs    constitutes

harmless error.        See Bank of Montreal v. Signet Bank, 193 F.3d

818, 834 (4th Cir. 1999) (applying harmless error analysis to

decision to exclude evidence in a civil case).                    To prove the use

of excessive force in violation of the Eighth Amendment, Taylor

was required to demonstrate that “the prison official acted with

a sufficiently culpable state of mind (subjective component) and

.   .   .   the   injury    inflicted   .    .   .     was   sufficiently    serious

(objective component).”            Iko v. Shreve, 535 F.3d 225, 238 (4th

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Cir.    2008).         The    core      inquiry       rests    on    “whether       force   was

applied     in     a     good-faith           effort     to     maintain        or     restore

discipline,       or    maliciously           and    sadistically       to    cause     harm.”

Hudson v. McMillian, 503 U.S. 1, 7 (1992).                          The extent of injury

suffered may be relevant to whether the force was necessary and

indicative of the amount of force applied.                             Wilkins v. Gaddy,

559 U.S. 34, 37-38 (2010).

       In this case, however, the proffered evidence, photographs

of     Taylor’s    injuries,            was    not     relevant       to     whether     Trial

Defendants       applied      force      in    a     good-faith       effort    to     restore

discipline, or maliciously and sadistically to cause harm.                                  The

only    evidence       introduced        on    that    issue    was    the     testimony     of

Taylor, Fuller, and Pulliam, the only individuals present when

force    was     applied,         who   all    gave    the     same    account:         Taylor

suffered an injury to his arm while being handcuffed by the

correction officers.               Notably, Taylor never testified that the

extent of his injuries was different from what was described by

the    Trial     Defendants.            Accordingly,          photographs      of    Taylor’s

injuries would have no relevance to the credibility of those

witnesses or whether the Trial Defendants acted maliciously or

sadistically to cause Taylor’s injuries.                            The exclusion of the

photographs therefore did not affect the outcome of the trial.

       Accordingly,          we    affirm     the     district       court’s    orders      and

judgment.      We dispense with oral argument because the facts and

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legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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