                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


LAMONT O. DOUGLAS,                    
               Plaintiff-Appellant,
                v.
J. MCCARTY,
                Defendant-Appellee,              No. 03-6776
G. MEADE; R. FLEMING; SERGEANT
HILLYER; SERGEANT WOOD; M.
HARRISON; D. P. KING;
CORRECTIONAL OFFICER JORDAN,
                       Defendants.
                                      
            Appeal from the United States District Court
      for the Western District of Virginia, at Big Stone Gap.
                  James P. Jones, District Judge.
                         (CA-01-70327-2)

                     Submitted: October 3, 2003

                     Decided: November 19, 2003

  Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Lamont O. Douglas, Appellant Pro Se. Mark Ralph Davis, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lee.
2                       DOUGLAS v. MCCARTY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Lamont O. Douglas, a state prisoner, appeals from the district
court’s orders granting remittitur on the award of damages on defen-
dant McCarty’s counterclaim and denying Douglas’s Fed. R. Civ. P.
Rule 59(a) motion for a new trial. This case arose out of an altercation
between Douglas and McCarty, a correctional officer, in which both
Douglas and McCarty sustained injuries. After independently review-
ing the record, we affirm the district court’s orders.

   Douglas makes the following arguments: (1) the district court
abused its discretion by conferring jurisdiction over McCarty’s coun-
terclaim; (2) the district court erred by dismissing the claims against
defendant Meade in his 42 U.S.C. § 1983 (2000) action; (3) the mag-
istrate judge erred by finding that Douglas had to prepay the applica-
ble fees for non-inmate witnesses; (4) the magistrate judge erred by
failing to impose discovery sanctions or conduct a hearing thereon;
(5) the district court improperly awarded damages in excess of the
amount contained in the ad damnum clause of McCarty’s counter-
claim; and (6) the district court abused its discretion by denying his
Fed. R. Civ. P. 59(a) motion for a new trial.

   We find that Douglas’s argument that the district court did not
properly have jurisdiction over McCarty’s counterclaim is without
merit. In particular, we find that McCarty had standing to bring the
counterclaim. Douglas contends that the Virginia Attorney General
("AG"), which represented McCarty on the counterclaim, did not have
the authority to represent McCarty because he was not employed by
the Virginia Department of Corrections ("VDOC") at the time the
counterclaim was filed. We first note that the statute upon which
Douglas relies, Va. Code Ann. § 2.1-121, was repealed effective
October 1, 2001. The state statutes regarding the function of the AG’s
office are now found at § 2.2-500 through § 2.2-518. According to
                         DOUGLAS v. MCCARTY                            3
Va. Code Ann. § 2.2-507(B), "[t]he Attorney General may represent
. . . any of the following persons who are made defendant in any civil
action for damages arising out of any matter connected with their offi-
cial duties: . . . [m]embers, agents or employees of the . . . Department
of Corrections. . . ." Contrary to Douglas’s contention, the statute
does not require that an individual be a member, agent, or employee
of the relevant department at the time the counterclaim is filed. All
that is required is that the civil litigation for which damages are
sought arise from the individual’s official duties. McCarty’s injuries
clearly arose from his duties as a correctional officer with the VDOC.
Thus, Douglas’s argument fails.

   We next find that McCarty’s counterclaim was filed within the
applicable statute of limitations period. According to Va. Code Ann.
§ 8.01-243, the statute of limitations for a personal injury claim is two
years after accrual of the cause of action. A cause of action accrues
on the date the injury is sustained. See Va. Code Ann. § 8.01-230
(Michie 2000). Here, McCarty’s cause of action accrued on August
22, 1999, the date the altercation occurred resulting in his injuries.
Thus, the limitations period normally would have expired on August
22, 2001. However, Va. Code Ann. § 8.01-233(B) provides that if the
subject matter of a counterclaim arises out of the same transaction or
occurrence upon which the plaintiff’s claim is based, as here, the stat-
ute of limitations with respect to the counterclaim is tolled by the
commencement of the plaintiff’s action. Douglas filed his § 1983
complaint on May 4, 2001. Thus, McCarty’s counterclaim, filed on
September 17, 2001, was timely filed.

   Douglas further argues that the magistrate judge abused her discre-
tion by failing to dispose of this matter prior to the commencement
of trial under Fed. R. Civ. P. 72. While it is true that Douglas’s
motion to dismiss McCarty’s counterclaim for lack of standing was
not addressed, the magistrate judge’s failure to act on the motion was
harmless, even if assumed to be erroneous, because, for the reasons
already discussed, his motion lacked merit. Thus, this argument fails.

   Next, Douglas argues that the district court erred by dismissing his
§ 1983 claims against defendant Meade, a prison nurse who treated
him following the altercation. We disagree. The magistrate judge dis-
missed such claims pursuant to 28 U.S.C. § 1915A(b)(1) (2000) for
4                        DOUGLAS v. MCCARTY
failure to state a claim upon which relief may be granted. We review
such a dismissal de novo. See Veney v. Wyche, 293 F.3d 726, 730 (4th
Cir. 2002). To the extent that Douglas’s claims against Meade allege
inadequate medical care, he fails to state a constitutional violation. In
particular, Douglas’s allegations that Meade failed to accurately
record his medical condition following the altercation and that she
exhibited a hostile attitude toward him, do not demonstrate the requi-
site deliberate indifference to a serious medical need to state a cogni-
zable Eighth Amendment claim for denial of medical care. See Estelle
v. Gamble, 429 U.S. 97, 106 (1976).

   Moreover, to the extent that Douglas’s complaint states a discrimi-
nation claim under the Equal Protection Clause of the Fourteenth
Amendment against Meade, it also fails because his allegation is
merely conjectural and speculative. See Williams v. Hansen, 326 F.3d
569, 584 (4th Cir. 2003) (holding that claim alleging violation of
equal protection based on discrimination must allege discriminatory
intent with more than mere conclusory assertions), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Sept. 10, 2003) (No. 03-381).

   Additionally, Douglas argues that the magistrate judge erred by
finding that he was required to pay the applicable fees for non-inmate
witnesses. We find this argument baseless. We agree with the several
circuits that have addressed the issue that federal courts are not autho-
rized to waive or pay witness fees on behalf of an in forma pauperis
civil litigant. See Malik v. Lavalley, 994 F.2d 90 (2d Cir. 1993); Ted-
der v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989); Boring v. Koza-
kiewicz, 833 F.2d 468, 474 (3d Cir. 1987); McNeil v. Lowney, 831
F.2d 1368, 1373 (7th Cir. 1987); U.S. Marshals Serv. v. Means, 741
F.2d 1053, 1057 (8th Cir. 1984). Thus, we find no abuse of discretion
in this respect.

   Douglas next argues that the magistrate judge erroneously denied
his motion for discovery sanctions against defense counsel and erred
by failing to conduct a hearing thereon. We will reverse a district
court’s sanction decision only for an abuse of discretion. See Nat’l
Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642
(1976); see also Southern States Rack & Fixture, Inc. v. Sherwin-
Williams Co., 318 F.3d 592, 595 (4th Cir. 2003). Douglas’s reliance
on Gonsalves v. City of New Bedford, 168 F.R.D. 102 (D. Mass.
                         DOUGLAS v. MCCARTY                            5
1996) is misplaced. First, Gonsalves involved particularly egregious
conduct on behalf of counsel, which is not present here. Furthermore,
the portion of the holding in Gonsalves regarding mandatory sanc-
tions was for counsel’s failure to comply with Fed. R. Civ. P.
26(g)(2), which requires at least one attorney of record to sign the
various discovery pleadings. Douglas makes no such allegation. Thus,
this argument fails.

   Douglas also argues that the district court erred by allowing a jury
award on McCarty’s counterclaim in an amount in excess of that
specified in the ad damnum clause of the counterclaim. Douglas cites
Powell v. Sears, Roebuck & Co., 344 S.E.2d 916 (Va. 1986), for the
proposition that a plaintiff cannot recover more than the amount for
which he or she sues. While this is true under Virginia law, this issue
in this case is governed by federal, not state, procedural rules. See
Dotson v. Ford Motor Co., 218 F. Supp. 2d 815, 816 (W.D. Va. 2002)
(citing Smith v. Brady, 390 F.2d 176, 177 (4th Cir. 1968)). In Smith,
we stated that "[t]he propriety of the verdict is tested by the evidence,
not the ad damnum clause." 390 F.2d at 177 (emphasis in original).
Thus, the district court did not err by awarding damages in an amount
in excess of that specified in McCarty’s ad damnum clause. We fur-
ther find that an award of $250,000 is not excessive given the life-
threatening injuries sustained by McCarty and the unprovoked nature
of the attack.

   Lastly, Douglas argues that the district court erred by denying his
Rule 59(a) motion for a new trial. We review such a denial for abuse
of discretion. See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301
(4th Cir. 1998). A new trial will be granted under the following cir-
cumstances: (1) intervening changes in the law; (2) new evidence not
available at trial; and (3) to correct a clear error of law or prevent a
miscarriage of justice. See EEOC v. Lockheed Martin Corp., Aero &
Naval Sys., 116 F.3d 110, 112 (4th Cir. 1997).

   Contrary to Douglas’s argument, the district court did not err by
failing to assess the credibility of the witnesses at trial. See Aba-
siekong v. City of Shelby, 744 F.2d 1055, 1059 (4th Cir. 1984) (hold-
ing that trial judge should not substitute own judgment of facts and
witness credibility, particularly where the subject matter of trial is
easily comprehended by a lay jury). We also reject Douglas’s argu-
6                       DOUGLAS v. MCCARTY
ment that he should have been granted a new trial based on the defen-
dants’ failure to produce McCarty’s medical records. First, as the
district court found, Douglas did not request such records during dis-
covery. Moreover, the district court liberally construed this portion of
Douglas’s motion as being based on newly discovered evidence.
However, because these records would have been cumulative of
McCarty’s testimony and records already in evidence, and because
Douglas would have used them only to impeach McCarty’s testimony
regarding McCarty’s injuries, he fails to meet the standard set forth
in Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989), for the
grant of a new trial based on newly discovered evidence.

   Accordingly, we affirm the district court’s orders granting remitti-
tur in the amount of $250,000 and denying Douglas’s Rule 59(a)
motion for a new trial. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

                                                           AFFIRMED
