                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 20 2004
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

    JEFFREY LYNN SCOTT,

                Plaintiff-Appellant,

    v.                                                 No. 03-3285
                                               (D.C. No. 00-CV-3212-MLB)
    CITY OF WICHITA; WICHITA                             (D. Kan.)
    POLICE DEPARTMENT; NORMAN
    WILLIAMS, Chief of Police, Wichita
    Police Department; WILLIAM C.
    WATSON, past Chief of Police,
    Wichita Police Department; EDWYN
    DIAZ, Officer of the City of Wichita
    Police Department; GARY
    KNOWLES, Officer, City of Wichita
    Police Department,

                Defendants-Appellees.


                            ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, MURPHY , Circuit Judge, and       CAUTHRON , **
Chief District Judge.




*
      This order and judgment is not binding precedent, except under the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.
**
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Jeffrey Lynn Scott, proceeding pro se, brought this civil rights

case under 41 U.S.C. § 1983, alleging that defendants should be held liable for

unlawful arrest, excessive force, and malicious prosecution. Scott now appeals

the district court’s grant of partial summary judgment and the judgment entered

upon a jury verdict against Scott on his excessive force claim. We affirm.


                                 BACKGROUND

      Scott claims that the defendant police officers Edwyn Diaz and Gary

Knowles entered his apartment, attacked him without provocation, assaulted his

then-wife Natalie (who was pregnant at the time), and arrested the couple without

probable cause. The officers’ version of the incident is quite different. They

deny using excessive force, stating that they came to the Scotts’ apartment on a

disturbance call and entered it through an open door. The officers state that they

only used physical force against the Scotts after the Scotts became physically

combative.

      Scott was charged with aggravated battery of a law enforcement officer and

with aiding and abetting the crime of aggravated assault on a law enforcement

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officer; Mrs. Scott was charged with aggravated assault and aiding and abetting

an aggravated battery. Although the Scotts were bound over after a preliminary

hearing, the charges were eventually dismissed. Scott was convicted of murder

before the assault charges went to trial and is presently serving a life sentence in

Kansas state prison for a murder conviction. The Scotts’ marriage ended in

divorce.

      Scott filed suit against the individual officers, William Watson and Norman

Williams (who both served as chief of police for the City of Wichita), and the

City of Wichita. He claimed arrest without probable cause; malicious

prosecution; excessive force on the part of the officers; failure to properly train or

discipline on the part of the police chiefs; authorization of excessive force by the

City; and conspiracy.   1
                            The district court dismissed or entered summary judgment

on all of Mr. Scott’s claims except his Fourth Amendment claim of excessive

force against the individual officers. That claim proceeded to a jury trial, during

which his ex-wife testified–apparently to the detriment of Scott’s position. The

jury entered a verdict for defendants and the district court denied Scott’s motion

for a new trial.


1
       Scott also attempted to name his ex-wife and infant son (who was born
almost six months after the incident) as plaintiffs. After the ex-wife filed an
affidavit stating that she had sole custody of the child, that she was not interested
in pursuing the lawsuit, and that she had not personally signed the pleadings, the
district court dismissed all claims by these two individuals.

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       On appeal, Scott asserts the district court erred in: (1) entering a protective

order and stay of discovery; (2) granting summary judgment based on allegedly

inadmissible affidavits; (3) denying Scott’s motion to strike defendant Diaz’s

affidavit, based on allegations of perjury; (4) denying Scott’s repeated requests

for appointment of counsel; (5) denying Scott’s request to interview his ex-wife

before she testified; (6) refusing to admit evidence of dismissal of the criminal

charges that arose from Scott’s arrest; (7) informing the jury, through a jury

instruction, that Scott was incarcerated; and (8) denying Scott’s motion for a new

trial based on allegations of juror and judicial misconduct. Scott also renews his

request, denied by the district court, to proceed on appeal      in forma pauperis , with

a transcript of the jury trial furnished at government expense.


                                      DISCUSSION

       We address all of Scott’s substantive appellate issues under the abuse of

discretion standard.   See Johnson v. Unified Gov’t of Wyandotte County        , 371

F.3d 723, 730 (10th Cir. 2004) (reviewing jury instructions);        United States v.

Austin , 231 F.3d 1278, 1281 (10th Cir. 2000) (reviewing the denial of a motion

for new trial); United States v. Youts , 229 F.3d 1312, 1320 (10th Cir. 2000)

(reviewing a trial court’s decision as to how to proceed in response to allegations

of juror misconduct or bias);    Gust v. Jones , 162 F.3d 587, 597 (10th Cir. 1998)

(reviewing district court decisions regarding the conduct of a trial);      Kidd v. Taos

                                             -4-
Ski Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996) (reviewing the decision of a

district court limiting or barring discovery);         Cartier v. Jackson , 59 F.3d 1046,

1048 (10th Cir. 1995) (reviewing a district court’s evidentiary rulings);         Rucks v.

Boergermann , 57 F.3d 978, 979 (10th Cir. 1995) (reviewing a district court’s

denial of a motion for appointment of counsel). “Under this standard, we will not

disturb a trial court’s decision absent a definite and firm conviction that the lower

court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.”     Kidd , 88 F.3d at 853 (quotations omitted).

       With the abuse of discretion standard in mind, we turn to Scott’s first two

issues. These issues require little discussion, in that they both relate to the

district court’s summary judgment ruling in favor of the City and police chiefs.

Because a jury later determined that the individual officers did not use excessive

force, there is no need to parse Scott’s arguments about summary-judgment

procedure. The jury verdict forecloses Scott’s excessive force claim against the

municipality or supervisory defendants.          See Myers v. Okla. County Bd. of County

Comm’rs , 151 F.3d 1313, 1316 (10th Cir. 1998) (stating that “[i]t is well

established . . . that a municipality cannot be held liable under section 1983 for

the acts of an employee if a jury finds that the municipal employee committed no

constitutional violation”);   Winters v. Bd. of County Comm’rs         , 4 F.3d 848, 855




                                                 -5-
(10th Cir. 1993) (stating that supervisors may be liable only for participating or

acquiescing in a constitutional violation committed by subordinates).

       Our analysis of Scott’s third claim is similar. Scott asserts that Diaz’s

affidavit, submitted in support of a summary judgment motion, was not made in

good faith and that the district court erred in considering it. There is no

indication that the district court abused its discretion in denying Scott’s motion to

strike. Further, the district court denied Diaz’s request for summary judgment, as

a consequence, the admission of the affidavit in no way prejudicially affected

Scott’s substantial rights.   See Coletti v. Cudd Pressure Control   , 165 F.3d 767,

773, 776 (10th Cir. 1999).

       Next, Scott argues that the district court improperly denied him

appointment of counsel. “There is no constitutional right to appointed counsel in

a civil case.” Durre v. Dempsey , 869 F.2d 543, 547 (10th Cir. 1989). Under

28 U.S.C. § 1915(e)(1), a district court is permitted to appoint counsel after

considering, “the merits of the litigant’s claims, the nature of the factual issues

raised in the claims, the litigant’s ability to present his claims, and the complexity

of the legal issues raised by the claims.”    Rucks , 57 F.3d at 979 (quotation marks

and citation omitted). In this case, the district court considered these factors, and

found appointment of counsel unnecessary. We conclude the district court did not

abuse its discretion in denying Scott’s requests for appointment of counsel.


                                             -6-
       In another argument, Scott asserts that his due-process rights were violated

when the district court refused his request to interview his ex-wife prior to her

testimony. The record shows that the ex-wife was subpoenaed by Scott and that

the district court observed that “[s]he was obviously terrified of plaintiff, and for

good reason.” R., vol. 8, doc. 281, at 1. Even in a criminal case, a witness may

“refuse to be interviewed” without violating a defendant’s rights.     United States v.

Troutman , 814 F.2d 1428, 1453 (10th Cir. 1987). The court did not abuse its

discretion in deciding to comply with the ex-wife’s wishes.

       Scott also argues error in the trial court’s decision to exclude as irrelevant

evidence of dismissal of the assault charges that arose from the incident. The

determination is supportable and is not indicative of an abuse of discretion.

Moreover, the ruling actually protected Scott from prejudice arising from

defendants’ proffered evidence that the assault charges were dismissed only

because Scott had been previously convicted of first-degree murder.

       In a related issue, Scott asserts that the jury should not have been informed

that he is incarcerated. However, jury instructions on Scott’s incarceration were

relevant to the damage calculation for lost income. We see no abuse of discretion

in the giving of the challenged instructions.

       Scott’s last claim on appeal is that he is entitled to a new trial, based on his

allegation that, when retiring to deliberate, a juror smiled and winked at the judge


                                            -7-
when retiring to deliberate. In light of the amorphous and speculative nature of

Scott’s allegation, the district court did not abuse its discretion in denying a

motion for new trial based on the alleged interaction.

      As a final matter, we address Scott’s renewed request for a transcript at

government expense. The relevant statute, 28 U.S.C. § 753(f), provides: “Fees

for transcripts furnished in [noncriminal, nonhabeas corpus] proceedings to

persons permitted to appeal in forma pauperis shall . . . be paid by the United

States if the trial judge or a circuit judge certifies that the appeal is not frivolous

(but presents a substantial question).” In its order denying § 753(f) request, the

district court determined that Scott’s trial statement that he could pay a $2,500

expert-witness fee was inconsistent with indigency. Further, the court determined

that the case failed to present a substantial question for appeal. R., vol. 8, doc.

286, at 1-2. We agree with the district court’s denial of the motion for a free

transcript and we, in turn, deny the motion filed in this court.




                                           -8-
      AFFIRMED . Scott’s motion for leave to proceed in forma pauperis on

appeal and for a government-paid transcript is   DENIED . His motion for

submission of addendum attachments and motion to supplement the record are

GRANTED to the extent that the attachments are copies of documents contained

in the district court record.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




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