     09-0348-pr
     Crenshaw v. Herbert
 1                             UNITED STATES COURT OF APPEALS
 2                                 FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS B Y SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 2 nd day of February, two thousand eleven.
17
18   PRESENT:          GUIDO CALABRESI,
19                     GERARD E. LYNCH,
20                                   Circuit Judges,
21                     J. GARVAN MURTHA,
22                                   District Judge.*
23
24   ------------------------------------------------------------------
25
26   WILLIAM CRENSHAW,
27                                            Plaintiff-Appellant,
28
29                            v.                                              No. 09-0348-pr
30
31   VICTOR HERBERT, RANDY JAMES, SERGEANT K. ARNONE,
32   DICK TRYKOJSKI, JENNIFER H. ROBBINO,
33                             Defendants,
34
35   C.O. BARTKOWIAK,
36                                            Defendant-Appellee.**
37
38   --------------------------------------------------------------------


              *
           Honorable J. Garvan Murtha of the United States District Court for the District of
     Vermont, sitting by designation.
              **
              The Clerk of Court is directed to amend the official caption to conform to the listing
     of the parties above.
 1   FOR APPELLANT:               William Crenshaw, pro se, Malone, New York.
 2
 3   FOR APPELLEE:                Andrew Cuomo, Attorney General of the State of New York;
 4                                Barbara D. Underwood Solicitor General; Nancy A. Spiegel,
 5                                Senior Assistant Solicitor General; Frank Brady, Assistant
 6                                Solicitor General of Counsel, New York, New York.
 7
 8          Appeal from the United States District Court for the Western District of New York

 9   (David G. Larimer, Judge).

10          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

11   DECREED that the judgment of the district court is AFFIRMED.

12          In this pro se prisoner action alleging First Amendment retaliation and excessive

13   force, appellant William Crenshaw appeals the judgment of the district court for appellee

14   Thomas Bartkowiak, a New York state corrections officer, entered following a jury trial and

15   verdict in favor of Bartkowiak. We assume the parties’ familiarity with the underlying facts

16   and the procedural history of this case, which we detail only as necessary to explain our

17   decision.

18                                         DISCUSSION

19   I. Discovery

20          In May 2005, Crenshaw moved to compel production of Bartkowiak’s disciplinary

21   record and any investigative files created by the Department of Correctional Services in

22   response to previous allegations of wrongdoing made against Bartkowiak. Crenshaw filed

23   similar motions throughout the discovery period and right up to the beginning of trial. Most

24   of these motions were denied, though at least one, which appears to have been untimely, went

25   undecided. For the purposes of this appeal, we assume the timeliness of these motions and

                                                  2
 1   treat any failure to rule as a denial.

 2          We review discovery rulings for abuse of discretion and will reverse only if “the

 3   action taken was improvident and affected the substantial rights of the parties.” Goetz v.

 4   Crosson, 41 F.3d 800, 805 (2d Cir. 1994) (internal quotation marks omitted).        Here, the

 5   district court did not abuse its discretion by denying Crenshaw’s motion to compel

 6   production of Bartkowiak’s personnel file. The district court properly relied on defense

 7   counsel’s affirmation that Bartkowiak’s file contained no relevant disciplinary records.

 8   Contrary to Crenshaw’s argument, nothing in Bartkowiak’s July 2007 declaration

 9   contradicted defense counsel’s affirmation. In fact, Bartkowiak asserted that he had “never

10   been disciplined for excessive use of force” and there is no evidence to the contrary. It is

11   therefore highly unlikely that Bartkowiak’s personnel file contained any relevant documents

12   and, even if evidence of a prior substantiated excessive force investigation existed, on the

13   facts of the particular case before us such evidence would be inadmissible to show that

14   Bartkowiak acted violently in this instance. See Fed. R. Evid. 404(b).

15   II. Motion to Appoint Counsel

16          The district court “may request an attorney to represent any person unable to afford

17   counsel.” 28 U.S.C. § 1915(e)(1). In determining whether to appoint counsel in a particular

18   case, the district court

19                  should first determine whether the indigent’s position seems
20                  likely to be of substance. If the claim meets this threshold
21                  requirement, the court should then consider the indigent’s ability
22                  to investigate the crucial facts, whether conflicting evidence
23                  implicating the need for cross-examination will be the major


                                                    3
 1                 proof presented to the fact finder, the indigent’s ability to
 2                 present the case, the complexity of the legal issues and any
 3                 special reason in that case why appointment of counsel would be
 4                 more likely to lead to a just determination.

 5   Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). We review a refusal to appoint

 6   counsel for abuse of discretion. Id. at 60.

 7          We are unpersuaded by Crenshaw’s argument that, because he “survived” summary

 8   judgment, the district court was obligated to appoint counsel. First, Bartkowiak never moved

 9   for summary judgment and the district court granted summary judgment in favor of those

10   defendants who so moved. Second, withstanding a motion for summary judgment is not

11   always enough. “If mere bald assertions by an indigent, which technically put a fact in issue

12   and suffice to avert summary judgment, required appointment of [counsel], the demand for

13   such representation could be overwhelming.” Id.

14          In this case, the district court reasonably found appointed counsel unnecessary.

15   Crenshaw’s motion was made more than three years after filing his complaint. By then it was

16   clear that his claims lacked procedural, technical, or legal complexity, required little or no

17   factual investigation, and ultimately rested on a pure credibility determination. That made

18   Crenshaw’s claims suitable for pro se litigation. See Cooper v. A. Sargenti Co., 877 F.2d

19   170, 174 (2d Cir. 1989). Furthermore, the district court had ample time to assess Crenshaw’s

20   competency during conferences and through his written submissions to the court. Based on

21   Crenshaw’s performance in those settings, the district court concluded that he had

22   “demonstrated [the] ability to pursue and present his claims” necessary to litigate this case



                                                   4
 1   pro se. Given the straightforward nature of this action and Crenshaw’s demonstrated

 2   competence – corroborated by his highly proficient presentation of the issues on appeal – the

 3   district court did not abuse its discretion by refusing to appoint counsel.

 4   III. Batson Challenge

 5          Defense counsel used a peremptory challenge to remove Tynise Edwards, the panel’s

 6   only African-American, from the jury. When Crenshaw objected on equal protection

 7   grounds, see Batson v. Kentucky, 476 U.S. 79, 89 (1986), defense counsel justified the

 8   challenge by noting that Edwards had previously filed a civil lawsuit and that she was

 9   currently employed as a family court attorney, a job that frequently required her to advocate

10   on behalf of prisoners. The district court accepted that race-neutral explanation and found

11   no discriminatory intent in defense counsel’s actions. We review that factual finding for

12   clear error. United States v. Taylor, 92 F.3d 1313, 1326 (2d Cir. 1996).

13          That defense counsel challenged the only African-American juror does not

14   automatically support an inference of discriminatory intent. Cousin v. Bennett, 511 F.3d 334,

15   338 (2d Cir. 2008). Here, the juror’s background supports a logical race-neutral motivation

16   for the challenge. It is entirely plausible that a lawyer defending a corrections officer from

17   a prisoner’s lawsuit would be reluctant to seat a juror, of any race, who had herself been a

18   plaintiff and who was employed in a role involving advocacy on behalf of prisoners.

19          Crenshaw’s claim that two similarly-situated white jurors were not struck is

20   unavailing. Although the jury forewoman visited her son while he served a jail sentence for

21   DWI, she never served as an advocate on behalf of incarcerated clients. Similarly, the


                                                   5
 1   second juror’s experience on a previous civil jury in which a judgment for the defense was

 2   issued does not give rise to an inference of possible bias in favor of plaintiffs that might

 3   motivate the use of a peremptory challenge by defense counsel.

 4            Given the plausible race-neutral explanation for the challenge, which the district court

 5   reasonably accepted, and Crenshaw’s inability to demonstrate discriminatory intent, we find

 6   no error in the district court’s determination that defense counsel challenged Edwards for

 7   race-neutral reasons.

 8   IV. Evidentiary Rulings

 9            Crenshaw alleges that the district court made two erroneous evidentiary rulings. We

10   review those rulings for abuse of discretion. Silverstein v. Chase, 260 F.3d 142, 145 (2d Cir.

11   2001).

12            First, Crenshaw argues that the district court erred by permitting defense counsel to

13   use Crenshaw’s 1997 robbery conviction for impeachment purposes. However, under Rule

14   609(a)(1), “evidence that a witness . . . has been convicted of a [felony] shall be admitted,”

15   unless its “probative value is substantially outweighed by the danger of unfair

16   prejudice . . . .” 1 See Fed. R. Evid. 609(a)(1) & 403. Evidence of Crenshaw’s prior robbery

17   was probative of his veracity, see United States v. Washington, 746 F.2d 104, 105-06 (2d Cir.



              1
             Crenshaw incorrectly asserts that the more restrictive standard found in Rule 609(b)
     applies. That standard only applies when ten or more years have passed “since the date of
     conviction or of the release of the witness from confinement imposed for that conviction,
     whichever is the later date,” and is therefore inapplicable in this case, which was tried while
     Crenshaw was still incarcerated for the robbery conviction with which he was impeached.
     See Fed. R. Evid. 609(b) (emphasis added).

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 1   1984), a central issue in this case because the jury was required to choose between two

 2   contradictory versions of the underlying incident. Furthermore, the jury was well aware that

 3   Crenshaw was incarcerated at the time of the incident and remained incarcerated through

 4   trial. It is unlikely that additional unfair prejudice resulted from informing the jury that

 5   Crenshaw was serving a sentence for robbery. Accordingly, the district court did not abuse

 6   its discretion in determining that the probative value of Crenshaw’s prior robbery conviction

 7   was not substantially outweighed by the danger of unfair prejudice.

 8          Second, Crenshaw argues that the district court erred by preventing him from

 9   introducing into evidence a copy of New York Corrections Law § 138.2 Crenshaw was

10   permitted to question the defendant about the statute and, during this exchange, he read aloud

11   the operative text. We can see no additional probative value in submitting a printed copy of

12   the statutory text into evidence and the district court properly excluded the evidence on those

13   grounds. In any event, it was for the district court to instruct the jury on the law governing

14   the case, not for the jury to infer legal conclusions from legal materials introduced into

15   evidence.




            2
             The portion of the statute at issue reads: “[i]nmates shall not be disciplined for
     making written or oral statements, demands, or requests involving a change of institutional
     conditions, policies, rules, regulations, or laws affecting an institution.” N.Y. Correct. Law
     § 138(4).

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 1   V. Motion for a New Trial

 2          Crenshaw’s argument that he should receive a new trial on the ground that the verdict

 3   was against the weight of the evidence is without merit. “[T]he weight of the evidence is

 4   itself a jury argument, not a ground for reversal on appeal.” Robinson v. Cattaraugus

 5   County, 147 F.3d 153, 160 (2d Cir. 1998).

 6   VI. Motion for Leave to File an Exhibit

 7          Crenshaw has moved to file an exhibit in support of his appeal. The exhibit, which

 8   was neither filed with the district court nor made part of the record on appeal, documents the

 9   denial of an internal complaint that Crenshaw filed more than five years after bringing this

10   action. “Ordinarily, material not included in the record on appeal will not be considered,”

11   Loria v. Gorman, 306 F.3d 1271, 1280 n.2 (2d Cir. 2002), and we will typically review only

12   that evidence presented below, Leibowitz v. Cornell Univ., 445 F.3d 586, 592 n.4 (2d Cir.

13   2006). In any event, even if the exhibit were received and considered, it sheds no light on

14   the issues addressed on appeal and would not affect the resolution of any of those issues.

15                                         CONCLUSION

16          For the foregoing reasons, Crenshaw’s motion to file an exhibit in support of his

17   appeal is DENIED and the judgment of district court is AFFIRMED.

18
19                                                     FOR THE COURT:
20                                                     Catherine O’Hagan Wolfe, Clerk of Court
21
22



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