
USCA1 Opinion

	




        October 11, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1881                                     JOHN MCCABE,                                Plaintiff, Appellant,                                          v.                             LEONARD MACH, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            John McCabe on brief pro se.            ___________            Scott Harshbarger, Attorney General, Shelley L. Taylor,  Assistant            _________________                    _________________        Attorney General,  Nancy  Ankers  White,  Special  Assistant  Attorney                           ____________________        General, and William D.  Saltzman, Department of Correction, on  brief                     ____________________        for appellees.                                 ____________________                                 ____________________                 Per Curiam.   We have reviewed  carefully the record  in                 __________            this case, including  the trial transcript and the  briefs of            the parties.  We  find no reversible error to  have occurred.            We add only the following.                 We  find no  abuse of  discretion in  the trial  court's            denial  of McCabe's request for appointment of counsel.  In a            civil  case,   counsel  is  required  only   in  "exceptional            circumstances" where absence of  counsel is "likely to result            in fundamental  unfairness  impinging on  [a litigant's]  due            process rights."  DesRosiers  v. Moran, 949 F.2d 15,  23 (1st                              __________     _____            Cir.  1991).    The  instant  case,  which  did  not  involve            particularly complex  questions of law or  fact, presented no            such exceptional circumstances.                   Nor  did the  court  abuse its  discretion in  admitting            testimony, pursuant to Fed. R. Evid. 404(b), concerning prior            acts  of institutional  violence committed  by McCabe.   Such            evidence  had bearing  on the  correction officers'  state of            mind while attempting to remove McCabe from his cell and thus            was relevant to their defense against  McCabe's claim to have            been  the victim  of constitutionally  excessive force.   See                                                                      ___            McCrary-El v. Shaw, 992  F.2d 809, 812 (8th Cir.  1993).  The            __________    ____            court committed  no error  in determining that  the probative            value of this testimony  outweighed any prejudicial effect it            might have had on McCabe.                                         -2-                 Finally,  we  find   no  reversible  error  in   defense            counsel's  appeal to the  jurors to "[p]ut  yourselves in the            [shift commander's]  position and  ask, as he  stood, whether            his  decision was  reasonable."   Counsel was  not improperly            asking the jurors  "to depart from neutrality  and decide the            case on the basis  of personal interest and bias  rather than            on the evidence,"  Forrestal v. Magendantz, 848 F.2d 303, 309                               _________    __________            (1st  Cir. 1988), but  to evaluate the  reasonableness of the            situation from what was  known to the shift commander.   Such            an   appeal  to   "collective   common  sense"   is  not   an            inappropriate invocation of the "golden rule."  United States                                                            _____________            v. Abreu, 952 F.2d  1458, 1471 (1st Cir.), cert.  denied, 503               _____                                   _____  ______            U.S.  994 (1992).    Moreover, any  possible prejudice  which            might have  arisen was corrected by  the court's instructions            to  the  jury that  it determine  the  case "entirely  on the            evidence as  you have  seen it  and heard  it  right in  this            courtroom.   Without any  bias, without any  prejudice."  See                                                                      ___            Forrestal,  848  F.2d  at  309  (no  prejudice  where  proper            _________            instruction cured "golden rule" error).                 Affirmed.                 ________                                         -3-
