                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                 No. 09-13744               ELEVENTH CIRCUIT
                                                              OCTOBER 22, 2010
                             Non-Argument Calendar
                           ________________________              JOHN LEY
                                                                  CLERK

                         D. C. Docket No. 07-00177-CV-4

CLARENCE R. SANKS,


                                                             Plaintiff-Appellant,

                                       versus

MICHAEL WILLIAMS,
Correctional Officer II, Coastal State Prison,

                                                            Defendant-Appellee.


                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________

                                (October 22, 2010)

Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Appellant Clarence Sanks, pro se, appeals the district court’s grant of

summary judgment in favor of Michael Williams, a correctional facility officer, in

Sanks’s civil rights suit brought pursuant to 42 U.S.C. § 1983. Sanks’s § 1983

complaint arose from an excessive force claim against Williams as a result of an

altercation at Coastal State Prison. On appeal, Sanks argues that he was entitled to

the appointment of both district court and appellate counsel. Sanks also argues

that Williams used excessive force during the altercation, subjecting him to cruel

and unusual punishment in violation of his Eighth Amendment rights.

Additionally, Sanks contends that he was denied his Fourteenth Amendment rights

because the prison authorities did not conduct a disciplinary hearing regarding the

incident. Lastly, Sanks argues that Williams acted in bad faith by not sending

discovery documents to Sanks, who had lost pertinent documents related to his

litigation.

       As an initial matter, Sanks claims that his Fourteenth Amendment due

process rights were violated when authorities put him in isolation without a

hearing. Because Sanks raises this issue for the first time on appeal, we will not

address this claim. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d

1324, 1330 (11th Cir. 2004).

                                         I.

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      A district court’s appointment of counsel in civil cases is warranted only in

exceptional circumstances. Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996).

The district court has broad discretion in making the determination and we review

a denial of appointment of counsel for abuse of discretion. Bass v. Perrin, 170

F.3d 1312, 1320 (11th Cir. 1999). Exceptional circumstances justifying court

appointment of counsel exist if the facts and legal issues in the plaintiff’s case are

so novel or complex that assistance of a trained practitioner is required. Kilgo v.

Ricks, 983 F.2d 189, 193 (11th Cir. 1993).

      A notice of appeal does not constitute an intent to appeal from an order that

has not yet been entered when the notice of appeal is filed. McDougald v. Jenson,

786 F.2d 1465, 1474 (11th Cir. 1986). Because the intent to appeal a subsequent

order is not apparent, review on the merits would prejudice the other party. Id.

Federal Rule of Appellate Procedure 3(c) “requires that a notice of appeal

designate an existent judgment or order, not one that is merely expected or that is,

or should be, within the appellant’s contemplation when the notice of appeal is

filed.” Bogle v. Orange County Bd. Of County Comm’rs, 162 F.3d 653, 661 (11th

Cir. 1998).

      We conclude from the record that the magistrate judge properly denied

Sanks’s first motion for appointment of counsel as the issues in Sanks’s case are

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neither novel nor complex. The district courts have broad discretion in

determining whether to appoint counsel, and the magistrate judge correctly

concluded that Sanks’s case did not invoke exceptional circumstances warranting

appointment of counsel. Thus, we conclude that the magistrate judge did not

abuse his discretion in denying Sanks’s motion to appoint counsel.

      With respect to Sanks’s motion to appoint appellate counsel, we lack

jurisdiction to consider this motion as Sanks filed his second motion after his

notice of appeal and it did not designate an existent order as required by Fed. R.

App. P. 3(c). Moreover, we cannot find that Sanks’s notice of appeal constituted

an intent to appeal from an order denying appointment of appellate counsel

because that order had not yet been entered when Sanks filed his notice of appeal.

                                         II.

      “We review de novo a district court’s grant of summary judgment and apply

the same legal standards that governed the district court’s analysis.” Penley v.

Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (citing Capone v. Aetna Life Ins. Co.,

592 F.3d 1189, 1194 (11th Cir. 2010)). In determining the relevant set of facts at

the summary judgment stage, we must view all evidence and make any reasonable

inferences that might be drawn therefrom in the light most favorable to the non-

moving party. Penlay v. Eslinger, 605 F.3d at 848 (internal quotation marks and

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citation omitted). “Thus, the requirement to view the facts in the non-moving

party’s favor extends to genuine disputes over material facts and not where all that

exists is ‘some metaphysical doubt as to the material facts.’” Id. (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 106 S. Ct.

1348, 1356, 89 L. Ed. 2d 538 (1986)). A dispute over a fact will only preclude

summary judgment if the dispute “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510, 91 L. Ed. 2d 202 (1986).

      “The Eighth Amendment’s proscription of cruel and unusual punishments . .

. governs prison officials’ use of force against convicted inmates.” Campbell v.

Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). “[I]n making and carrying out

decisions involving the use of force to restore order in the face of a prison

disturbance, prison officials undoubtedly must take into account the very real

threats the unrest presents to inmates and prison officials alike, in addition to the

possible harms to inmates against whom force might be used.” Whitley v. Albers,

475 U.S. 312, 320, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251 (1986). Thus,

“[w]here a prison security measure is undertaken to resolve a disturbance, . . . that

indisputably poses significant risks to the safety of inmates and prison staff, . . .

the question whether the measure taken inflicted unnecessary and wanton pain and

                                           5
suffering ultimately turns on whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically for the very purpose

of causing harm.” Id. at 320-21, 106 S. Ct. at 1085 (internal quotation marks

omitted).

      In ruling on a judgment as a matter of law on an excessive use of force

claim, the Supreme Court has held:

      [C]ourts must determine whether the evidence goes beyond a mere
      dispute over the reasonableness of a particular use of force or the
      existence of arguably superior alternatives. Unless it appears that the
      evidence, viewed in the light most favorable to the plaintiff, will
      support a reliable inference of wantonness in the infliction of pain
      under the standard we have described, the case should not go to the
      jury.

Id. at 322, 106 S. Ct. at 1085. The Supreme Court outlined five distinct factors

relevant to ascertaining whether force was used “maliciously and sadistically for

the very purpose of causing harm”: (1) the extent of the injury; (2) the need for

application of force; (3) the relationship between that need and the amount of

force used; (4) any efforts made to temper the severity of a forceful response; and

(5) the extent of the threat to the safety of staff and inmates, as reasonably

perceived by the responsible officials on the basis of facts known to them.

Campbell, 169 F.3d at 1375 (citing Whitley, 475 U.S. at 321, 106 S. Ct. at 1085);

see also Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 117 L. Ed. 2d 156

                                           6
(1992) (applying the same five factor test set forth in Whitley).

      We conclude from the record that the district court did not err in granting

Williams’s motion for summary judgment as there was no genuine issue of

material fact. There was a need for Williams to use limited force in order to

subdue Sanks and his aggressive actions and to regain control of a threatening

situation. He ceased to use force when Sanks stopped resisting, demonstrating not

that he was acting maliciously intending to cause harm, but rather acting in good

faith to restore order. Williams was in a threatened position as he was the sole

officer in Sanks’s cell, whose exit was blocked by a crowd of inmates. Moreover,

Sanks’s injuries reflect a limited amount of force as he suffered no broken bones

and only mild swelling and redness. Williams acted with the appropriate amount

of force to insure his safety and maintain order, and ceased using force when it

was no longer necessary to control Sanks. Therefore, we conclude that the district

court did not err in granting summary judgment.

                                         III.

      As discussed above, we cannot find that a notice of appeal constituted an

intent to appeal from an order the district court had not entered when the notice of

appeal was filed. McDougald, 786 F.2d at 1474. Additionally, Fed. R. App.

P. 3(c) requires that a notice of appeal designate an existent judgment or order, not

                                          7
one that is merely expected. Bogle, 162 F.3d at 661.

      We do not have jurisdiction over either of the post-judgment discovery

motions filed by Sanks. Both of Sanks’s motions were filed either before or on the

day that he filed his notice of appeal. Therefore, his notice of appeal would have

been in anticipation of an expected order, not an order in existence at the time the

notice of appeal was filed. McDougald, 786 F.2d at 1474; Bogle, 162 F.3d at 661.

We also conclude that the district court did not err in granting summary judgment

in favor of Williams and denying Sanks’s motions for both appointment of counsel

and post-judgment discovery.

      AFFIRMED.




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