

October 11, 1996        [NOT FOR PUBLICATION]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.

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     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.                         

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