
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1799                                  NORBERTO ANDRADE,                                Plaintiff, Appellant,                                          v.                             JOHN J. MORAN, ETC., ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Norberto Andrade on brief pro se.               ________________               David  J.  Gentile,  Senior  Legal  Counsel,  Department  of               __________________          Corrections,  on  Memorandum  in Support  of  Motion  for Summary          Disposition for appellees.                                  __________________                                   January 13, 1994                                  __________________                      Per Curiam.    Plaintiff Norberto Andrade  filed an                      __________            action  pursuant to  42  U.S.C.    1983  claiming that  Rhode            Island correctional  personnel  had used  excessive force  to            restrain  him and  had provided  inadequate  medical care  in            violation of the  Eighth Amendment.  Following  the dismissal            of  three of  the  five  defendants, a  jury  trial was  held            resulting  in  verdicts   in  favor  of  the   remaining  two            defendants.                      1.    The  district  court permitted  plaintiff  to            proceed in  forma pauperis.   Plaintiff argues  that it  also                    __________________            should  have granted  his  request  for  the  appointment  of            counsel.   Counsel  in  civil  cases  are appointed  only  in            "exceptional circumstances."  DesRosiers  v. Moran, 949  F.2d                                          __________     _____            15, 23 (1st Cir. 1991).   In determining whether a party  has            met this standard, "a court must examine the total situation,            focusing,  inter  alia,  on  the  merits  of  the  case,  the                       ___________            complexity of the legal issues, and the litigant's ability to            represent himself."   Id. at 24.   Further, on  our review of                                  __            the record,  we will  reverse the  district court's  decision            "only if  the record, taken  as a whole, reflects  a manifest            abuse of the trial court's broad discretion."  Id.                                                           __                      Although  there is  support  for plaintiff's  claim            that he is illiterate, this same evidence -- a psychologist's            evaluation  -- describes plaintiff  as bright, alert  and, in            terms  of  his   mental  functioning,  able  to   "deliver  a                                         -2-            reasonable stream of clear ideas that were pertinent and well            connected to the subjects being  discussed."  Thus, we do not            believe that  plaintiff's  ability to  represent himself  was            significantly  hampered  by  his  illiteracy.    Further, his            complaint  concerned events that had occurred during a single            day and  the applicable  Eighth Amendment  standards are  not            particularly complicated.   As a result, we find  no abuse of            discretion  in the district  court's decision not  to appoint            counsel to represent plaintiff.                      2.   As far as we can determine, plaintiff's second            argument on appeal  concerns the sufficiency of  the evidence            as to exactly  how he received a  cut on his head  during the            incident  in question.  Specifically, plaintiff refers to the            testimony  of  one  of  the  defendants  at  the state  trial            (plaintiff  was  charged  with assault  upon  a  correctional            officer on the basis of the events giving rise to this   1983            action).  According to plaintiff, this defendant at the state            trial  testified  that  he did  not  know  how plaintiff  had            received  the laceration on  his head.   Apparently, the same            defendant  at the  district court  trial  gave a  conflicting            account of how plaintiff's injury occurred.                      Without a transcript of either the state or federal            court trials, it is not possible for us to review this claim.            Fed. R. App. P. 10(b)(2) provides:                           If the plaintiff  intends to urge on                      appeal that  a finding  or conclusion  is                                         -3-                      unsupported   by  the   evidence  or   is                      contrary to  the evidence,  the plaintiff                      shall include in the record a  transcript                      of all evidence  relevant to such finding                      or conclusion.            As for  the district court  proceedings, "[t]he burden  is on            the   plaintiff  to  provide  this  court  with  an  appendix            sufficient to support [his] points on appeal."  United States                                                            _____________            v.  One Motor  Yacht, 527  F.2d  1112, 1113  (1st Cir.  1975)                ________________            (appendix  did  not  include  transcript  of  hearing  before            district court).  "Where  a plaintiff raises issues  that are            factually  dependant yet fails to provide a transcript of the            pertinent proceedings in the district court, this circuit has            repeatedly held  that we  will not  review the  allegations."            Muniz Ramirez  v. Puerto Rico  Fire Services, 757  F.2d 1357,            _____________     __________________________            1358 (1st Cir. 1985).  See also Fisher v. Krajewski, 873 F.2d                                   ________ ______    _________            1057,  1060, 1068  (7th Cir.  1989)  (in the  absence of  the            transcript,  it is not  possible to review  rulings made from            the bench and the court  "will not render a judicial decision            founded on speculation"), cert. denied, 493 U.S. 1020 (1990).                                      ____________                      We are  aware of  plaintiff's  indigent status  and            that he filed, in the district court, a request for the trial            transcript under 28 U.S.C.   753(f) (A transcript paid for by            government  is available only  if the trial  judge "certifies            that the appeal is not frivolous (but presents  a substantial            question).").  The district court denied plaintiff's request,            finding   that  plaintiff   wanted   the  entire   transcript                                         -4-            essentially  for the  purpose of  having  a "retrial"  of the            evidence  on appeal.  Because he had  already had a "full and            fair opportunity"  to present all of his  evidence before the            jury, the court determined that his appeal failed to assert a            substantial question of law.                      Indigence, however, does  not relieve plaintiff  of            the burden  to produce  the transcript  under Rule  10(b)(2).            See Richardson v. Henry, 902  F.2d 414, 416 (5th Cir.) (court            ___ __________    _____            would dismiss pro se appeal concerning his sufficiency of the            evidence claim  despite  plaintiff's inability  to  afford  a            transcript), cert.  denied, 498  U.S. 901  (1990); Thomas  v.                         _____________                         ______            Computax   Corp.,  631  F.2d  139,  142-43  (9th  Cir.  1980)            ________________            (inability to pay  for transcript does make  it "unavailable"            within the  meaning of Rule  10(c) which allows  plaintiff to            prepare  a  statement   of  evidence  based  on  his  or  her            recollection; court dismissed appeal).                      Plaintiff  has  not  renewed  his  request   for  a            transcript in this  court nor  has he  appealed the  district            court's denial under   753(f).  In any event, the fact that a            witness gave inconsistent testimony at a prior trial does not            itself   raise   a   substantial   question.      Credibility            determinations are solely reserved for the jury.  See Glasser                                                              ___ _______            v. United States, 315 U.S. 60, 80 (1942).  Thus, even  taking               _____________            plaintiff's claim  at face  value, there is  no merit  to the            appeal.                                         -5-                      The judgment of the district court is affirmed.                                                            ________                                         -6-
