1                     IN THE UNITED STATES COURT OF APPEALS

2                             FOR THE FIFTH CIRCUIT

3                                ______________

4                                 No. 97-40845
5                                ______________

6                          RAYMOND EARNEST CHRISTOPH,

7                                          Plaintiff-Appellant,

8                                    versus

 9             JIMBO RAINS, Sheriff; CLAUDIE KENDRICK, Ex-Sheriff;
10                 COMMISSIONERS COURT OF HOUSTON COUNTY, TEXAS,

11                                         Defendants-Appellees.

12       _________________________________________________________

13              Appeal from the United States District Court
14                    for the Eastern District of Texas
15                               (9:94-CV-47)
16       _________________________________________________________

17                             September 15, 1999

18   Before EMILIO M. GARZA, Circuit Judge, and FITZWATER, District
19   Judge.*

20   PER CURIAM:**

21        A county prisoner who alleged that he had been assaulted by

22   another inmate in an overcrowded cell block and subjected to other

23   unconstitutional jail conditions brought this civil rights action

24   alleging violations of the Eighth and Fourteenth Amendments and of

25   state law.      He appeals an adverse judgment following a trial,


          *
          District Judge of the Northern District of Texas, sitting by
     designation. Judge Parker was originally a member of the panel but
     determined that he is recused. This appeal is being decided by a
     quorum. See 28 U.S.C. § 46(d).
          **
           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     this opinion should not be published and is not precedent except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.
26   contending the district court erred by denying his discovery

27   motions (particularly a motion for disclosure) and motion for

28   appointment of counsel, and that the jury verdict must be reversed

29   because two witnesses gave perjured trial testimony.   Although we

30   do not find that the district court abused its discretion by

31   refusing to appoint counsel or that plaintiff’s claim of perjured

32   witness testimony presents plain error, we hold that the district

33   court abused its discretion and acted unreasonably by denying

34   plaintiff’s motion for disclosure.     Because we conclude after

35   studying the trial record that plaintiff likely incurred prejudice

36   to a substantial right, we VACATE and REMAND.

37                                   I

38        Plaintiff-appellant Raymond Earnest Christoph (“Christoph”),

39   who was detained in the Houston County, Texas jail while awaiting

40   transfer to the Texas Department of Criminal Justice (“TDCJ”),

41   brought this pro se civil rights action against defendants Houston

42   County Sheriff Jimbo Raines (“Sheriff Raines”),1 former Sheriff

43   Claudie Kendrick (“Sheriff Kendrick”), and the Houston County

44   Commissioners Court.   Christoph complained of jail overcrowding,

45   unsanitary conditions, denial of recreation and exercise, improper

46   diet, placement of pretrial detainees with convicted felons, and

          1
           Christoph originally sued Sheriff Raines under the surname
     “Rains,” but corrected the spelling in his amended complaint. We
     will refer to Sheriff Raines by the proper spelling of his name.
          The record reflects that the claims against Sheriff Raines
     were dismissed without objection because he was not the Sheriff at
     the relevant time.   The district court did not charge the jury
     concerning Christoph’s claims against Sheriff Raines and Christoph
     does not appeal the dismissal of these claims. We do not disturb
     this dismissal.

                                   - 2 -
47   detention in a racially imbalanced cell.2    He alleged that jail

48   overcrowding resulted in his being attacked on May 9, 1992 by

49   another prisoner, resulting in 25 stitches to his face, injury to

50   his neck, and mental, physical, and emotional pain.

51        Under the Civil Justice Expense and Delay Reduction Plan

52   (“Plan”) adopted by the Eastern District of Texas, the case was

53   placed on Track 2 for case management purposes, meaning that the

54   parties were obligated to make initial disclosures but were not

55   permitted to conduct discovery.   The Plan requires that each party

56   disclose to the opposing party “[a] copy of all documents, data

57   compilations, and tangible things in the possession, custody, or

58   control of the party that are likely to bear significantly on any

59   claim or defense[.]”   E. D. Tex. R. CV-26(b)(1)(B).3    Under the

60   Plan, “bears significantly on” includes “information that is likely

61   to have an influence on or affect the outcome of a claim or

62   defense,” E. D. Tex. R. CV-26(b)(3)(C), and “information that

63   deserves to be considered in the preparation, evaluation or trial

64   of a claim or defense,” E. D. Tex. R. CV-26(b)(3)(D).

65        The magistrate judge conducted the initial in forma pauperis

66   screening and recommended that the case be dismissed as frivolous.


         2
          Christoph complained that he was the only Caucasian among 18
     prisoners, the remainder of whom were African-American.          He
     asserted that he did not seek segregation of prisoners by race, but
     instead sought a more “balanced” assignment of persons of different
     races to the same cell block.
             3
             The Eastern District of Texas has since integrated the
     initial disclosure provisions of the Plan into its Local Rules.
     For clarity we will cite the Plan provisions as they are now
     codified in the Local Rules.

                                   - 3 -
67   He also denied Christoph’s motion for appointment of counsel.                  The

68   district judge concluded, however, that Christoph had stated a 42

69   U.S.C. § 1983 claim and granted him leave to proceed in forma

70   pauperis.       After defendants were served and answered, they made

71   their initial disclosures to Christoph and on February 25, 1997

72   filed with the clerk of court the notice of disclosure required by

73   the Plan.

74         While the case was pending before the magistrate judge, and

75   later       before   the    district   judge,     Christoph    submitted   several

76   discovery motions.            On March 13, 1997 he filed a motion for

77   disclosure, in which he complained that trial was upcoming on June

78   23, 1997 but that defendants had not disclosed inter alia (1)

79   Houston County jail records that would show how many persons were

80   detained in cell block 2 on March 27, 1992 (the day he was

81   arrested), May 9, 1992 (the day he was assaulted), and May 11, 1992

82   (the day he contends Sheriff Kendrick drastically reduced the

83   population of the cell block following the assault);4 and (2) the

84   jail recreation logs or records for the period March through July

85   1992.        The district court denied the motion by March 20, 1997

86   written order.        It noted that the case had been assigned to Track

87   2, that Christoph was not entitled to conduct discovery, and that

88   the parties must comply with the Plan’s disclosure rules.                    Under

89   the   Plan,      only      notices   of    disclosure,   not    the   disclosures

90   themselves, are to be filed with the court.              See E. D. Tex. R. CV-

             4
           The motion for disclosure refers to May 12 rather than May
     11, 1992, but Christoph refers in other pleadings and testimony to
     May 11 as the correct date.

                                               - 4 -
91    26(e).    The district court found that defendants had complied with

92    the Plan’s requirement that they give notice of disclosure.               The

93    court also held that Christoph was “not entitled to obtain any and

94    all documents that he desires that do not bear significantly on a

95    claim or defense.”

96         On June 23, 1997, as scheduled, the parties tried the case to

97    a jury.    Roy H. House (“House”), the Jailer for Houston County in

98    1992, testified that the jail passed state inspection in 1991 and

99    1992.     Christoph attempted to impeach House on cross-examination

100   with Texas Commission on Jail Standards (“TCJS”) inspection reports

101   for 1989-1991 that Christoph maintained showed that the jail had

102   not passed inspection.        Christoph asserts that House committed

103   perjury.     Sheriff Raines testified that a county sheriff is not

104   allowed    by   law   to   address   prison    overcrowding    by   releasing

105   prisoners on his own authority.            Christoph maintains that he has

106   discovered new evidence that demonstrates that Sheriff Kendrick in

107   fact released prisoners in 1992 without proper authorization.

108        The jury returned a verdict in favor of defendants and the

109   district judgment entered a take nothing judgment dismissing the

110   case.    Christoph appeals.

111                                         II

112        We review for abuse of discretion the district court’s order

113   denying Christoph’s motion for appointment of counsel.              See Norton

114   v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997).               The magistrate

115   judge explicitly noted the relevant factors and analyzed why

116   counsel should not be appointed.        We are satisfied from our review


                                           - 5 -
117   of   the   record,    including    our     assessment        of   the   caliber    of

118   Christoph’s appellate briefs, that this case does not present

119   exceptional circumstances and that the magistrate judge did not

120   abuse his discretion in denying Christoph’s motion for appointed

121   counsel.

122         Christoph contends the judgment must be reversed because House

123   gave perjured testimony that the jail had passed state inspection.

124   He raises this issue for the first time on appeal.                      “It is the

125   unwavering rule in this Circuit that issues raised for the first

126   time on appeal are reviewed only for plain error.”                 McCann v. Texas

127   City Refining, Inc., 984 F.2d 667, 673 (5th Cir.1993) (per curiam).

128   No plain error has been presented here.               Christoph is asserting in

129   this civil case a witness impeachment issue that was properly

130   within     the   province   of    the     jury   as    the    judge     of    witness

131   credibility.5

132         Sheriff Raines was asked, in the context of relieving jail

133   overcrowding, whether a sheriff “was allowed by law just to start

134   releasing people,” and responded that he could not.                          Christoph

135   maintains that he has discovered new evidence that demonstrates

136   that Sheriff Kendrick released prisoners in 1992 without proper

137   authorization.       Because Christoph also raises this claim for the

138   first time on appeal, we review for plain error.                    We find none,

139   particularly since Sheriff Raines was asked what a sheriff could

           5
            We also note that the trial record is unclear on this point,
      because there is a suggestion in the testimony (and Christoph
      concedes to some extent in his reply brief) that TCJS granted the
      jail a variance before passing it, rather than that the jail failed
      inspection.

                                              - 6 -
140   legally do, and Christoph proffers evidence that purports to show

141   what Sheriff Kendrick was doing illegally.

142                                         III

143          We review for abuse of discretion the district court’s order

144   denying Christoph’s motion for disclosure.          See Atkinson v. Denton

145   Publ’g Co., 84 F.3d 144, 148 (5th Cir. 1996) (holding in review of

146   Eastern District of Texas Track 3 case that district court did not

147   abuse its discretion by denying plaintiff’s motion to expand number

148   of allowed interrogatories). “Control of discovery is committed to

149   the sound discretion of the trial court and its discovery rulings

150   will   be   reversed   only   where    they   are   arbitrary    or   clearly

151   unreasonable.”    Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012

152   (5th Cir. 1986).

153                                          A

154          Christoph sought disclosure of Houston County jail records

155   that would have shown how many persons were detained in cell block

156   2 on March 27, 1992, May 9, 1992, and May 11, 1992.             He requested

157   these records to prove that the jail was overcrowded and that

158   Sheriff Kendrick had attempted to cure or cover up the overcrowding

159   by drastically reducing the population of the cell block following

160   the assault.    Christoph pursued disclosure of the jail recreation

161   logs or records for the period March through July 1992 to establish

162   that Houston County did not permit inmates to engage in recreation.

163   The district court denied Christoph’s motion, concluding that he

164   was not entitled to discovery and that defendants had complied with

165   the Plan’s notice of disclosure requirement.


                                        - 7 -
166                                              B

167        We hold that these records clearly met the Plan’s definition

168   of documents that are likely to bear significantly on any claim.

169   Christoph complained of jail overcrowding.                   Information concerning

170   the daily operation logs for cell block 2 would likely have an

171   influence on or affect the outcome of his claim that the jail was

172   unconstitutionally overcrowded, see E. D. Tex. R. CV-26(b)(3)(C),

173   and deserved to be considered in the preparation, evaluation, or

174   trial of that claim, see E. D. Tex. R. CV-26(b)(3)(D).                      It would

175   also bear significantly on his assertion that Sheriff Kendrick

176   released    all   but    four    inmates       from    the   cell   block   two   days

177   following the assault of Christoph because he knew the cell was

178   illegally overcrowded and was attempting to cover up or cure the

179   problem. Information regarding the jail recreation logs or records

180   would    likely   have    an    influence       on    or   affect   the   outcome   of

181   Christoph’s claim that he was denied recreation, and it deserved to

182   be considered in the preparation, evaluation, or trial of that

183   claim.     Defendants were therefore obligated under the Plan to

184   disclose these records.

185        Defendants do not contend that these documents were not in

186   their possession, custody, or control.                 They do not cite any place

187   in the record that establishes that they disclosed the documents to

188   Christoph, nor have we found from our review of the record that the

189   required disclosures were made.6               Defendants principally focus on

          6
           As we have noted, under the Plan, only notices of disclosure,
      not the disclosures themselves, are to be filed with the court.
      See E. D. Tex. R. CV-26(e).

                                            - 8 -
190   other discovery requests that Christoph submitted.         Concerning the

191   documents at issue, they assert summarily that “[o]nce Defendants’

192   initial disclosure was filed, Plaintiff simply re-urged all of the

193   improper motions.”       They contend that the district court applied

194   the Plan as written and did not clearly abuse its discretion.             In

195   view of the absence of any indication that defendants disclosed the

196   documents that Christoph seeks, we hold that the district court

197   abused its discretion and made an unreasonable discovery ruling

198   when it held in its order that defendants had complied with the

199   notice of disclosure requirement of the Plan but did not address

200   whether they had in fact made the required disclosures.            We also

201   hold that the district court’s denial of Christoph’s motion for

202   disclosure was unreasonable and an abuse of discretion, because

203   these records were plainly within the scope of documents that

204   defendants were obligated to disclose automatically in a Track 2

205   case.

206                                          C

207        We next decide whether defendants’ failure to disclose these

208   documents,   and   the    district    court’s   failure   to   order   their

209   disclosure, require that the judgment be vacated.

210        In the context of district court evidentiary rulings that are

211   reviewed for abuse of discretion, we have held that the abuse of

212   discretion must create the likelihood of prejudice.             See United

213   States v. Tansley, 986 F.2d 880, 887 (5th Cir. 1993).           Even if the

214   district court errs in an evidentiary ruling, the error can be

215   excused if it was harmless.          United States v. Capote-Capote, 946


                                           - 9 -
216   F.2d 1100, 1105 (5th Cir. 1991).                Because we hold that this

217   standard of review also applies to the discovery ruling at issue,

218   we will determine whether it is likely that Christoph incurred

219   prejudice that affected his substantial rights.

220        We have carefully considered the trial record to assess

221   whether Christoph was prejudiced by the non-disclosure, and we

222   conclude   that     he    was.    Christoph     sought   in   his   motion   for

223   disclosure to obtain documents that would enable him to prove that

224   his cell block was overcrowded on the days he entered the jail and

225   was assaulted.       He also attempted to obtain records that would

226   permit him to demonstrate that two days following the assault,

227   Sheriff Kendrick significantly reduced the number of prisoners in

228   the cell block (from approximately 18 to four) in an attempt to

229   cure or cover up the overcrowding.             Christoph introduced his own

230   testimony, and that of another inmate, to establish these facts.

231   He also attempted unsuccessfully to elicit favorable testimony

232   concerning    the    jail     population   from    witnesses    aligned      with

233   defendants.

234        Defendants          vigorously   impeached     Christoph’s      evidence,

235   establishing through cross-examination that the witnesses could not

236   recall accurately the number of prisoners held at the relevant

237   times.   In part using Christoph’s exhibits concerning inspections

238   by the TCJS for the period 1989-1991, defendants attempted to show

239   that the number of prisoners was decreasing over time, was far

240   below what Christoph contended, and did not exceed the rated jail




                                            - 10 -
241   capacity to an unconstitutional extent.7         They offered detailed

242   evidence concerning the configuration of the jail, its rated

243   capacity and average daily population, and approximate prisoner

244   population.    When Christoph sought to prove through House, the

245   Jailer, that the cell block population was significantly reduced

246   within days of the assault, House testified that he could not

247   recall whether the number of prisoners was reduced to four on May

248   11, 1992.     Christoph, who lacked the documents that defendants

249   should have disclosed, was forced to rely solely on the testimony

250   of convicted felons (including himself)8 to establish the jail

251   population in 1992, and was unable to impeach defendants’ evidence.

252   In opening statement, defendants’ counsel accused Christoph of

253   exaggerating his overcrowding claim and emphasized during opening

254   statement   and   closing   argument   that   Christoph   had   increased

255   dramatically the number of prisoners that he alleged were detained

256   with him in the same cell block.       Defendants’ counsel also relied

257   on plaintiff’s TCJS records for 1991 to suggest that the jail was

258   not overcrowded in 1992.     Christoph likely suffered prejudice due

259   to defendants’ failure to disclose the daily operation logs for the

260   relevant periods.

           7
            Defendants conceded that the jail housed more inmates than
      were permitted under the facility’s rated capacity. They pointed
      out, however, that because of state prison overcrowding, many Texas
      counties were unable to transfer convicted felons from their jails
      to the TDCJ for service of sentence. They maintained that, despite
      these adverse circumstances, the number of prisoners in the Houston
      County jail never exceeded what was constitutionally permissible.
           8
            The district court orally instructed the jury during trial
      that it could consider the fact that a witness had been convicted
      of a felony in assessing his credibility.

                                       - 11 -
261        Concerning Christoph’s recreation claim, defendants introduced

262   evidence explaining how Houston County had converted the Sally Port

263   at the jail into a recreation area when the recreation yard was

264   eliminated to permit construction, then in progress, of a new jail.

265   They offered testimony that this area was available for and used by

266   prisoners for exercise and recreation.             Defendants also adduced

267   evidence that prisoners were permitted to do push ups and similar

268   exercises indoors when space was available, and that the jail

269   provided prisoners with dominos, cards, newspapers, books, access

270   to television, and tobacco products.          Defendants produced expert

271   testimony that the facilities and recreation options at the jail

272   complied with TCJS standards. Christoph and another inmate witness

273   testified   that     jail   officials     denied   outside   recreation   to

274   prisoners, but Christoph lacked jail recreation records that might

275   corroborate   this     evidence.        Defendants’   failure   to   produce

276   recreation logs or records likely prejudiced Christoph.9

277                                  *     *       *

278        Accordingly, we VACATE the judgment of the district court and

279   REMAND this case for further proceedings consistent with this

280   opinion.

281        VACATED and REMANDED.




            9
             House testified that he was not sure whether there was a
      recreation log that showed outside recreation. We have assumed,
      absent defendants’ denial, that there is such a record, but we do
      not preclude defendants on remand from establishing that a
      recreation log was not maintained during the relevant period.

                                         - 12 -
