                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 14, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41335
                         Summary Calendar


STEVEN GILBERT,

                                    Plaintiff-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; UNIDENTIFIED STACKS, Warden;
NANCY HICKS, Correctional Officer 5,

                                    Defendants-Appellees.

                       --------------------
          Appeals from the United States District Court
                for the Eastern District of Texas
                      USDC No. 9:03-CV-167
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Steven Gilbert, Texas prisoner # 423646, appeals from a jury

verdict in favor of the defendant Nancy Hicks in his 42 U.S.C. §

1983 civil rights complaint.   Gilbert argues that the trial court

abused its discretion in denying his motion for new trial based

upon newly discovered evidence, in denying his request for

appointment of counsel at trial, and in excluding witness

testimony.



     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-41335
                                 -2-

     Gilbert has filed a motion for remand to the district court

for the taking of additional testimony.    This motion is DENIED.

     Gilbert argues that the trial court abused its discretion in

failing to grant a motion for new trial.   He contends that

testimony from corrections Officer Phillips would reveal that

Hicks committed perjury at trial.

     “To prevail on a Rule 59(a) claim based on newly discovered

evidence, the movant must have been excusably ignorant of the

facts at the time of the trial despite due diligence to learn

about them.”    Government Fin. Servs. One Ltd. P’ship v. Peyton

Place, Inc., 62 F.3d 767, 775 (5th Cir. 1995).   This court

reviews the denial of a motion for a new trial for abuse of

discretion.    Lincoln v. Case, 340 F.3d 283, 290 (5th Cir. 2003).

     The record reflects through the testimony of Hicks that

Gilbert was aware of the existence of Officer Phillips.    Hicks

testified that she directed Officer Phillips to conduct a strip

search of Gilbert.   Accordingly, this evidence is not newly

discovered after trial and Gilbert had the opportunity to request

Officer Phillips to testify.   The trial court did not abuse its

discretion in denying Gilbert’s motion for new trial.     See

Lincoln, 340 F.3d at 290.

     Gilbert next argues that the trial court abused its

discretion in denying his two requests for appointment of trial

counsel.   A district court’s decision regarding appointment of
                           No. 04-41335
                                -3-

counsel will be overturned only if a clear abuse of discretion is

shown.   Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).

     The record indicates that Gilbert was able to file a cogent

petition, that he was able to effectively argue his case at

trial, that the issues were not complex, and that the trial court

assisted him in the procedural aspects of the trial.   Because

Gilbert’s claim of a civil rights violation did not present

exceptional circumstances warranting appointment of counsel, the

trial court did not abuse its discretion by denying his motion

for appointment of counsel.   See Jackson v. Cain, 864 F.2d 1235,

1242 (5th Cir. 1989).

     Finally, Gilbert argues that the trial court abused its

discretion in excluding the testimony of another inmate who had

filed a grievance against Hicks for similar conduct.   The record

reflects that Gilbert questioned Hicks about the grievance and

introduced the inmate’s affidavit at trial.   Hicks recalled the

grievance but denied any wrongdoing.   Any error was thus

harmless.   See United States v. Ragsdale, 426 F.3d 765, 774-75

(5th Cir. 2005), cert. denied, 126 S. Ct. 1405 (2006).

Accordingly, the judgment of the district court is AFFIRMED.
