                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              FEB 5 2001
                             FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    MICHAEL RAY HUDELSON,

                Plaintiff-Appellant,

    v.                                                      No. 00-5017
                                                      (D.C. No. 98-CV-867-B)
    ANNA MARIE COWDRY, in her                               (N.D. Okla.)
    individual capacity; RICK PHILLIPS,
    in his individual capacity,

                Defendants-Appellees.


                              ORDER AND JUDGMENT            *




Before EBEL, KELLY, and LUCERO , Circuit Judges.




         Following his acquittal on charges of sexual battery and resisting arrest,

plaintiff Michael Ray Hudelson brought this action under 42 U.S.C. § 1983

alleging wrongful arrest and use of excessive force against several of the City of

Tulsa police officers involved in his arrest and against the City itself. Defendant



*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Anna Marie Cowdry, the victim of the alleged sexual battery who also happened to

be a Tulsa police officer, counterclaimed for assault and battery and intentional

infliction of emotional distress. The case proceeded to trial against only defendants

Rick Phillips and Cowdry. The jury found in favor of Hudelson on his claim

against Phillips for excessive force, and awarded $1,792.75 in damages. The jury

found Cowdry not liable on Hudelson’s claims and Hudelson not liable on

Cowdry’s counterclaims. Hudelson, who was represented by counsel at trial,

appeals pro se.

       Hudelson first argues that the district court erred by not granting his motion

to continue the trial until his doctor was available to testify. We review the district

court’s denial of a motion for continuance for abuse of discretion.    Gust v. Jones ,

162 F.3d 587, 598 (10th Cir. 1998). The district court had granted Hudelson’s first

two motions to continue, and had set trial to begin December 20, 1999. A week

before trial, Hudelson filed his third motion for a continuance arguing three

grounds for delaying the trial, one of which vaguely asserted that “several of

Plaintiff’s material witnesses will be unavailable due to the Christmas holidays.”

R. Vol. 2, Doc. 76. Without addressing the reasons for the requested continuance,

the district court denied it for failure to comply with a local rule requiring that

“[t]he first page of any nondispositive motion shall state whether or not any

opposing counsel objects to the motion.” N.D. Okla. L.R. 7.1 E. This rule further

states that “[t]he motion shall not be considered without this statement, unless the

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court excuses this requirement in the interest of justice.”       Id. Hudelson presents no

explanation why he did not or could not comply with this requirement, and we find

no abuse of discretion in the district court’s denial of the motion to continue.

        Hudelson’s second argument is that Cowdry gave false testimony at trial, that

this testimony was inconsistent with the testimony she gave at his criminal trial and

at her deposition in this case, and that the jury was prejudiced by her false and

inconsistent testimony. At trial, his counsel was able to use her prior testimony to

impeach her and challenge her credibility on the particular points on which he

contends she was untruthful and inconsistent. The jury was instructed regarding

the consideration of prior inconsistent statements in determining the credibility of

witnesses, and Hudelson does not object to this instruction. “[T]he jury has the

exclusive function of appraising credibility [and] determining the weight to be

given to the testimony.”     United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd.      ,

210 F.3d 1207, 1227 (10th Cir.) (quotation omitted),          cert. granted , 121 S. Ct. 425

(2000). The jury assessed Cowdry’s truthfulness, and its evaluation of her

credibility is inherent in its verdict. We reject this claim of error.

        Hudelson next complains of the performance of his counsel at trial, arguing

that counsel should have deposed Hudelson’s doctor and that counsel was

“ineffective and selfish.” To the extent Hudelson claims he was denied his

constitutional right to effective assistance of counsel at trial, this right does not

apply to civil trials.   See MacCuish v. United States , 844 F.2d 733, 735 (10th Cir.

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1988). Hudelson’s remedy for any alleged incompetence by his counsel is through

a malpractice action against counsel, not through any relief from the judgment in

this case. Id. at 735-36.

      Finally, apparently as a separate argument, Hudelson contends that all

evidence of medical damages should have been allowed. He fails to explain what

this evidence was, why the district court excluded it (assuming the court did), and

what effect the exclusion had on the trial. This claim is thus too vague for us to

consider.

      AFFIRMED.




                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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