     Case: 17-30569      Document: 00514511558         Page: 1    Date Filed: 06/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 17-30569                            June 13, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
BOBBY CHARLES BYRD,

                                                 Plaintiff - Appellant
v.

W. W. LINDSEY, individually and in his official capacity; R. GORDON,
individually and in his official capacity; ROY SHORT, individually and in his
official capacity, also known as Officer Short,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CV-1956


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Bobby Byrd sued the City of Bossier, the City of
Shreveport, and four law enforcement officers—Officer Roy Short, Officer
Chris Yarborough, Sergeant W. W. Lindsey, and Detective Robert Gordon—for
the use of excessive force in the course of arresting Byrd on suspicion of
burglary, seeking relief under 42 U.S.C. § 1983 and the Louisiana


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Constitution. The City of Bossier, along with Officer Short of the Bossier Police
Department, filed a motion for summary judgment. The City of Shreveport,
along with Officer Yarborough, Sergeant Lindsey, and Detective Gordon, also
filed a motion for summary judgment. The district court granted both motions
and dismissed all of Byrd’s claims with prejudice. On appeal, we affirmed the
judgment for Officer Yarborough, the City of Bossier, and the City of
Shreveport. Byrd v. City of Bossier, 624 F. App’x 899, 905 (5th Cir. 2015) (per
curiam). We reversed the judgment of the district court as to Officer Short,
Detective Gordon, and Sergeant Lindsey, concluding that Byrd had raised a
genuine issue of material fact with respect to the conduct of these officers. Id.
On remand, the jury returned a verdict in favor of these officers, and the
district court dismissed Byrd’s claims against them with prejudice. We
AFFIRM.
      Byrd was represented by counsel from the beginning of this suit in July
2012 until late October 2015, a few weeks after our mandate issued in Byrd,
624 F. App’x 899. After his counsel withdrew, Byrd proceeded pro se. In
January 2016, he filed a motion to appoint counsel. He argued that exceptional
circumstances warranted the appointment of counsel pursuant to 28 U.S.C.
§ 1915(e)(1) and that the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act required the appointment because he had several mental
illnesses. The district court denied the motion, finding that the case did not
present exceptional circumstances and that the ADA did not obligate the court
to appoint counsel. In July 2016, he filed a motion for reconsideration of the
decision not to appoint counsel, which the district court denied. In the pretrial
conference on April 26, 2017, Byrd participated via video conference. He
requested that an inmate counsel substitute, who was a trained paralegal, be
allowed to assist Byrd during trial. The district court stated that it would allow
the inmate counsel substitute to assist Byrd during trial but not to act as an
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                                  No. 17-30569
attorney and address the court or the jury. After a four-day trial, the jury found
in favor of Officer Short, Detective Gordon, and Sergeant Lindsey. The district
court entered a final judgment dismissing all of Byrd’s claims against these
officers. Byrd filed a motion for new trial and for appointment of counsel,
arguing that the court’s failure to appoint counsel warranted a new trial with
appointed counsel. The district court denied this motion. Byrd appealed.
      We review the denial of a motion for a new trial for an abuse of discretion.
See Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999). “Courts do not grant
new trials unless it is reasonably clear that prejudicial error has crept into the
record or that substantial justice has not been done, and the burden of showing
harmful error rests on the party seeking the new trial.” Id. (quoting Del Rio
Distrib., Inc. v. Adolph Coors Co., 589 F.2d 176, 179 n.3 (5th Cir. 1979)). We
also review the denial of a motion for appointment of counsel for an abuse of
discretion. See Naranjo v. Thompson, 809 F.3d 793, 799 (5th Cir. 2015).
      “A § 1983 plaintiff, even if demonstrably indigent, is not entitled to
appointed counsel as a matter of right.” Id. (citing Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982)). Under 28 U.S.C. § 1915(e)(1), a trial court is
permitted to appoint counsel in in forma pauperis proceedings. See id. at 801.
But “[t]he trial court is not required to appoint counsel for an indigent plaintiff
asserting a claim under [§ 1983] unless the case presents exceptional
circumstances.” Ulmer, 691 F.2d at 212 (citing Branch v. Cole, 686 F.2d 264,
266 (5th Cir. 1982) (per curiam)). We have articulated factors that the trial
court should consider in deciding whether such circumstances exist:
      1. the type and complexity of the case; 2. the petitioner’s ability to
      present and investigate his case; 3. the presence of evidence which
      largely consists of conflicting testimony so as to require skill in
      presentation of evidence and in cross-examination; and 4. the
      likelihood that appointment will benefit the petitioner, the court,
      and the defendants by shortening the trial and assisting in just
      determination.
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Naranjo, 809 F.3d at 799 (quoting Parker v. Carpenter, 978 F.2d 190, 193 (5th
Cir. 1992)). The court “may also consider the extent of [the] plaintiff’s attempts
to secure private counsel independently.” Id. (citing Jackson v. Cain, 864 F.2d
1235, 1242 (5th Cir. 1989)).
      Byrd argues that his case presents exceptional circumstances. He states
that the district court did in fact find that there were exceptional
circumstances because it sought an attorney for him. He asserts that his
mental illness creates circumstances that are exceptional. He also cites
Naranjo, contending that the district court failed to recognize its inherent
ability to appoint an attorney for him. Byrd’s argument fails. He is mistaken
that the district court found exceptional circumstances existed. The district
court stated in denying his first motion to appoint counsel that “[t]his case does
not present . . . exceptional circumstances” and that despite Byrd “not [being]
entitled to counsel,” the court tried (unsuccessfully) to secure representation
“through local pro bono programs.” The district court also explained in denying
Byrd’s motion for reconsideration of the decision not to appoint counsel that he
“failed to persuade” the court that his “condition [gave] rise to exceptional
circumstances.” Further, when denying his motion for a new trial, the district
court acknowledged that it had previously concluded that “Byrd’s case does not
present exceptional circumstances to warrant appointment of counsel.”
      After reviewing the record, we hold that the district court did not abuse
its discretion in denying Byrd’s motions to appoint counsel. Byrd’s claim was
“neither unusual nor especially complex.” See Garner v. United States, 45
F. App’x 326, 2002 WL 1899597, at *8 (5th Cir. 2002) (per curiam); see also
Kiser v. Dearing, 442 F. App’x 132, 135 (5th Cir. 2011) (per curiam) (“[T]he
legal contours of excessive force claims are well-established and not
particularly complex.”). “[C]onflicting testimony” is a “common element[] in
civil rights cases” and does not “in this case rise to the level of exceptional
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circumstances.” See James v. Gonzalez, 348 F. App’x 957, 958 (5th Cir. 2009)
(per curiam). Despite his alleged mental illness, Byrd “demonstrated [an]
ability to investigate and present the case.” See Castro Romero v. Becken, 256
F.3d 349, 354 (5th Cir. 2001). As the district court found, “Byrd did, in fact,
present and cross-examine witnesses, introduce evidence, lodge objections, and
conduct opening statements and closing arguments.”
      We held in Naranjo that federal courts have inherent authority to order
attorneys to represent litigants without pay. See 809 F.3d at 802. But we
concluded that the district court abused its discretion by not using this
authority because it had found that the case had presented exceptional
circumstances. See id. at 801–02. Here, the district court did not find that such
circumstances existed. Thus, it did not abuse its discretion by declining to
appoint counsel.
      Finally, Byrd argues that the district court was obligated under the ADA
and the Rehabilitation Act to appoint an attorney to represent him because he
suffered from mental illness. He has not shown that the district court has a
duty to appoint counsel as a reasonable accommodation for his alleged
disability pursuant to these two statutes. Thus, his contention is unavailing.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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