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                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT


                             No. 16-15443


               D.C. Docket No. 7:14-cv-00172-HL-TQL


ALEAKEEM PETERSEN,

                                                          Plaintiff-Appellant,

                                versus

WAYNE SMITH,
FRANK BLANTON,
RANDY CHILDERS,
CHRISTOPHER HOOPIIAINA,
CLIFTON OUZTS,

                                                       Defendants-Appellees.



              Appeal from the United States District Court
                  for the Middle District of Georgia


                          (February 13, 2019)
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Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, * District Judge.

PER CURIAM:

       Plaintiff-Appellant, Aleakeem Petersen, requests that this Court grant him a

new trial on his 42 U.S.C. § 1983 civil rights action, through which he alleges

Defendants-Appellees, Wayne Smith, Frank Blanton, Randy Childers, Christopher

Hoopiiaina, and Clifton Ouzts (collectively, “Defendants”), subjected him to

excessive force in violation of his Eighth Amendment rights. After a two-day trial

a jury returned a verdict for Defendants. After consideration of the record and oral

argument, we affirm.

                I.      FACTS AND PROCEDURAL BACKGROUND

       On November 13, 2012, Petersen was housed at the Valdosta State Prison

when his right arm was broken during an encounter with Defendants, who were, at

the time, correctional officers stationed at the prison. After exhausting his available

prison remedies, Petersen filed a pro se 42 U.S.C. § 1983 civil rights action against

Defendants in the United States District Court for the Middle District of Georgia,

alleging excessive use of force in violation of his Eighth Amendment rights. A jury

trial was held July 20–21, 2016.




*
  Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.

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       Petersen alleges that the beating which constituted the encounter was

excessive and without cause. For their part, Defendants argue that Petersen initiated

the encounter by running at Sergeant Smith with a knife, and that they used no more

force than was necessary to gain “positive control” of Petersen. While Defendants

concede that Petersen’s arm was broken during the encounter, they argue that this

was the result of the application of lawful force.

       After close of evidence, the verdict for Defendants was returned, and

judgment was entered. This appeal followed. Petersen’s appeal challenges two of

the district court’s evidentiary rulings, its jury instructions, and its decision not to

appoint counsel for him.

                           II.   STANDARD OF REVIEW

       Generally, “[r]ulings on the admissibility of evidence are reviewed for abuse

of discretion.” City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 556

(11th Cir. 1998). However, a claim of evidentiary error that has not been properly

preserved is reviewed for plain error. Fed. R. Evid. 103(d) (“A court may take notice

of a plain error affecting a substantial right, even if the claim of error was not

properly preserved.”); see also ML Healthcare Servs., LLC v. Publix Super Markets,

Inc., 881 F.3d 1293, 1305 (11th Cir. 2018) (reviewing the district court’s admission

of evidence for plain error where plaintiff failed to object when the evidence was

admitted at trial).


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      “We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the objecting party.” United States v.

Myers, 972 F.2d 1566, 1572 (11th Cir. 1992). However, plain error review is

appropriate where the appellant failed to raise an objection to jury instructions at

trial. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999)

(specifying that this is the case where objection at trial would not have been futile).

      Finally, we review a district court’s decision to deny appointment of counsel

for abuse of discretion. Killian v. Holt, 166 F.3d 1156, 1157 (11th Cir. 1999).

                                 III.   DISCUSSION
   A. Evidentiary Rulings

      1. Disciplinary reports

      At an April 15, 2016 pretrial conference, Defendants moved, pursuant to Fed.

R. Evid. 404(b), for permission to admit into evidence three disciplinary reports that

documented three separate instances (apart from the encounter at issue) in which

Petersen possessed a knife in prison. Defendants argued these past reports of knife

possession were probative of Petersen’s intent to possess a knife during the

encounter. During the pretrial conference, and over Petersen’s objection, the district

court initially determined that the evidence was proper Rule 404(b) evidence and

would be admissible at trial.




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      At trial, during their case in chief, Defendants attempted to introduce into

evidence the disciplinary reports. In response, the court excused the jury and

reversed its earlier determination, ruling that the disciplinary reports could not be

submitted to the jury for Rule 404(b) purposes. The court further informed the

parties, however, that Defendants could still use the contents of the disciplinary

reports solely to impeach Petersen’s testimony.

      In accordance with this ruling, Defendants called Petersen as a party opponent

and, in a purported attempt to impeach Petersen, briefly questioned him regarding

whether he had ever received disciplinary reports for weapon possession. Petersen

did not object and answered affirmatively.

      Petersen argues the district court erred by permitting Defendants to question

him regarding the disciplinary reports to “impeach” his credibility.

             i. Petersen did not preserve for appeal his objection to the use of
                the disciplinary reports at trial

      To successfully challenge a verdict on the basis of a district court’s incorrect

evidentiary ruling, an appellant must “demonstrate either that his claim was

adequately preserved or that the ruling constituted plain error.” United States v.

Stephens, 365 F.3d 967, 974 (11th Cir. 2004).

      Further, “[A]n objection on specific grounds does not preserve the error for

purposes of appeal on other grounds.” Judd v. Rodman, 105 F.3d 1339, 1342 (11th


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Cir. 1997) (holding plaintiff’s decision to object to admitted evidence solely on the

basis of relevancy, both before and during trial, precluded her from raising on appeal

a different Rule 412 objection to admissibility); see also Goulah v. Ford Motor Co.,

118 F.3d 1478, 1483 (11th Cir. 1997) (holding plaintiffs failed to preserve their

hearsay and Rule 403 objections on appeal by virtue of their trial objections that

were either based on relevance or did not specify the grounds for objection).

      Here, during the pretrial conference, Petersen objected to the use of the

disciplinary reports to show intent pursuant to Rule 404(b). This ground for

objection, and even Petersen’s broader statement at the conference that the

disciplinary reports should not “even be brought up in this case,” are different from,

and therefore do not preserve, his current objection based on improper impeachment.

             ii. The district court did not commit plain error by permitting
                 Defendants to question Petersen regarding the disciplinary
                 reports

      When an evidentiary issue is not preserved on appeal, a court of appeals may

take notice of plain error. Fed. R. Evid. 103(d). To constitute plain error, the district

court’s decision to permit Defendants to question Petersen regarding the disciplinary

reports must have been: (1) an error; (2) that was plain; (3) that affected Petersen’s

substantial rights; and (4) the error must have seriously affected the fairness,

integrity, or public reputation of the judicial proceedings. E.g., United States v.

Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014).


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       Though the district court erred in permitting Defendants to question Petersen

regarding the disciplinary reports, Petersen was not thereby unduly prejudiced, and

the district court therefore did not commit plain error. See id. at 592 (explaining an

error affects a party’s substantial rights if it is prejudicial).

       Regarding error, and as indicated by Petersen, no evidentiary rule permits this

type of evidence to be introduced for general impeachment purposes. Contrary to

Defendants’ assertion, Rule 608(b) is inapplicable, as the disciplinary reports are not

probative of Petersen’s character for truthfulness. See Ad-Vantage Tel. Directory

Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1464 (11th Cir. 1994)

(“Acts probative of untruthfulness under Rule 608(b) include such acts as forgery,

perjury, and fraud.”).       Impeachment by contradiction, the other method of

impeachment asserted by Defendants, is also inapposite, as Petersen did not testify

that he has never possessed a knife or that he has never had access to a knife.

       Serving no impeachment purpose, questioning Petersen regarding the

disciplinary reports was improper character evidence, prohibited by Rule 404; and

the district court’s decision to allow these questions was error. Fed. R. Evid. 404

(“Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in

accordance with the character.”). Nonetheless, this error did not impair Petersen’s




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substantial rights or unduly prejudice him. Thus, the standard for plain error review

is not satisfied.

       To show impairment of substantial rights and prejudice, Petersen has the

burden of demonstrating that the error “affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993); United States v.

O’Keefe, 461 F.3d 1338, 1348 n.10 (11th Cir. 2006) (same). It is here where

Petersen falls short.

       Defendants’ questions to Petersen regarding the disciplinary reports were

brief—spanning less than one page of the trial transcript. Besides the questions

themselves, Defendants mentioned the disciplinary reports only one other time—

during closing, and this was, again, done briefly.

       In contrast to the brevity in which Defendants dealt with the disciplinary

reports, they spent substantial time developing other evidence.          This includes

evidence that Petersen was charged, through prison processes, with possession of a

weapon and assaulting a correctional officer for his actions during the encounter;

that he was found guilty of those charges after a hearing; and that he did not appeal

this verdict, though he had the right to do so. Additionally, Defendants presented

testimony from Officers Blanton, Smith, Hoopiiaina, and Ouzts that no Defendant

hit or kicked Petersen while Petersen was being subdued, and testimony from Smith




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and Hoopiiaina that Petersen charged at Smith with a weapon. 1 Thus, comparing

the properly admitted evidence to that concerning the disciplinary reports, the Court

concludes that Petersen has not met his burden of establishing that the outcome of

the trial was affected.

       Moreover, this conclusion of nonreversible error is appropriate even if

Petersen had properly preserved his objection. See United States v. Hawkins, 905

F.2d 1489, 1493 (11th Cir. 1990) (“[E]videntiary and other nonconstitutional errors

do not constitute grounds for reversal unless there is a reasonable likelihood that

they affected the defendant’s substantial rights; where an error had no substantial

influence on the outcome . . . reversal is not warranted.”).

       2. Petersen’s questions to his witnesses regarding whether they heard
          any mention of Petersen having a knife before, during, or after the
          encounter

       Petersen called five witnesses at trial—Robbie Brower, Lorenzo Mitchell,

Clemmiet Carter, Harry Newkirk, and Erick Bowen. Each was an inmate at the

Valdosta State Prison during the encounter, and each testified to having witnessed

the encounter. On direct examination of his first witness, Brower, Petersen asked,

“During the time of the incident or after the incident, did you hear any mention of

me having a knife or a knife being involved in this incident?” Brower answered in


1
  Defendant Childers also read into evidence his sworn witness statement written after the
encounter in which he states that Petersen possessed a weapon during the encounter and that the
minimum force necessary to restrain Petersen was used.
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the negative. Petersen posed nearly the identical question to his next witness,

Mitchell—“During the incident or any time after the incident did you hear about me

having a knife or any mention of a knife being involved in this altercation?” Mitchell

also responded, “no.”

      During the testimony of the third witness, Carter, Petersen asked a similar

question—“[B]efore, during or after this incident, do you ever recall hearing about

me being in possession of a knife?” After Petersen posed this question to Carter, the

court interrupted, instructing Petersen that it was “an improper question,” as it would

elicit hearsay and was not probative of whether Petersen had possessed a knife. The

court further instructed the jury “to disregard the prior testimony from the other

witnesses in response to that question.” Petersen asked no further questions of

Carter.

      On appeal, Petersen argues the jury should have been permitted to consider

the testimony of Brower, Mitchell, and Carter regarding whether they heard any

mention of a knife before, during, or after the encounter.

      The Court agrees with the district court’s determination that these witnesses’

statements have little, if any, probative value and are irrelevant to the issue of

whether Petersen possessed a knife. Simply put, that a witness did not hear anyone

mention before, during, or after the encounter that Petersen had a knife does not have

the tendency to prove the fact which Petersen intended to prove: that he did not have


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a knife. Thus, the district court did not abuse its discretion in excluding this

testimony due to the lack of probative value. See Fed. R. Evid. 401, 403.

      Further, even if the district court erred in excluding this testimony, such an

error would not be reversible error. After Carter’s testimony, Petersen called his

fourth prisoner-witness, Harry Newkirk, and altered his questions in light of the

district court’s evidentiary ruling and instruction to Petersen that he could ask

questions probative of his witnesses’ personal knowledge of the absence of a knife.

Petersen asked Newkirk “To the best of your knowledge, do you recall me having a

knife that day?” Newkirk replied “no.” Petersen followed up with, “Do you recall a

knife being involved in that incident in any shape, size or form?” To which Newkirk

also replied “no.”

      Similarly, Petersen called Erick Bowen to the stand and asked, “Do you recall

me having a knife during this incident?” Bowen replied, “no.” Petersen did not

recall his prior witnesses to ask them about their personal knowledge of the absence

of a knife.

      Thus, given that Petersen was able to elicit from his two remaining witnesses

the testimony he desired, any error would not be reversible. See Hawkins, 905 F.2d

at 1493; Hearn v. McKay, 603 F.3d 897, 904 (11th Cir. 2010) (holding it was

harmless error to exclude testimony that was cumulative and corroborative of

evidence presented by another witness).


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   B. Jury Instruction and Verdict Forms

      After closing arguments the court charged the jury, which included the

instruction:

      Without some degree of personal participation in the alleged
      constitutional deprivation of a plaintiff’s rights by a defendant, no
      liability exists. Each defendant is only liable for his own misconduct.
      In other words, liability cannot be imposed upon a defendant whose
      actions were not the proximate cause of any alleged injury.

      Additionally, the court gave the jury five separate verdict forms, one for each

Defendant, which asked whether each Defendant “used physical force maliciously

and sadistically for the purpose of causing harm to [Petersen].” A determination of

liability as to each Defendant required that this question be answered “yes” for that

Defendant. After the jury was charged, the court asked the parties whether there

were objections to the jury instructions, to which Petersen responded, “No.”

      After deliberation, the jury rendered its verdict, finding that none of the

Defendants had “intentionally used physical force maliciously and sadistically for

the purpose of causing harm to [Petersen].” Judgment was entered for Defendants.

      On appeal, Petersen argues the jury instruction and verdict forms were

erroneous for: (1) creating for Petersen an impossible standard of proof due to his




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inability to observe which Defendants beat him, 2 and (2) eliminating the possibility

of finding that Defendants breached their duty to intervene.

       1. Petersen preserved this issue for appeal

       As an initial matter, this issue is properly before the Court on appeal. While

generally a party may not assign error to a jury instruction “unless he objects thereto

before the jury retires to consider its verdict, stating distinctly the matter objected to

and the grounds of the objection,” Farley v. Nationwide Mut. Ins. Co., 197 F.3d

1322, 1329 (11th Cir. 1999) (citing Fed. R. Civ. P. 51), “[t]he failure to object (to

jury instructions) may be disregarded if the party’s position has previously been

clearly made to the court and it is plain that a further objection would be unavailing.”

Indus. Dev. Bd. of Town of Section v. Fuqua Indus., Inc., 523 F.2d 1226, 1237 (5th

Cir. 1975) (quoting 9C Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 2553 (3d ed.)) (internal quotation marks omitted); see also Cohen

v. Franchard Corp., 478 F.2d 115, 122 (2d Cir. 1973) (explaining that the purpose

of Rule 51 is to “prevent unnecessary new trials because of errors the judge might

have corrected if they had been brought to his attention at the proper time”); Williams

v. Hennessey, 328 F.2d 490, 491 (5th Cir. 1964) (“Rule 51 does not require formality

in making the objection, and the form of the objection is not important as long as it


2
  During his testimony, Petersen stated that though he knew the Defendants were present during
the encounter, he did not know which officers among them struck him—his explanation being that
he was covering himself for protection against the blows, thus obscuring his vision.

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is clear that the trial judge was informed as to the possible errors and was given an

opportunity to correct them.”).

      Here, though Petersen did not formally object to the jury instruction or verdict

forms, the district court raised with Defendants, during trial, the same objection that

Petersen now argues on appeal: that they set an impossible standard of proof due to

the nature of the alleged act. This is sufficient to preserve this issue for appeal,

though admittedly it is a close call. See Chess v. Dovey, 790 F.3d 961, 971 (9th Cir.

2015) (reviewing jury instructions de novo because, even though the instructions

were not formally objected to by plaintiff, the district court had expressed misgivings

about them before they were presented to the jury).

      2. The jury instruction and verdict forms did not erroneously set for
         Petersen an impossible standard of proof for recovery

      To establish a claim for excessive force, a plaintiff must show that the

defendants acted with a malicious and sadistic purpose to inflict harm. Johnson v.

Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002). Additionally, to hold a defendant

liable for excessive force, a plaintiff must prove causation. See Reimer v. Smith, 663

F.2d 1316, 1322 n.4 (5th Cir. 1981) (“It is axiomatic that a plaintiff cannot succeed

in a s 1983 action if he fails to demonstrate a causal connection between the state

official’s alleged wrongful action and his deprivation of life, liberty, or property.”);

Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982) (explaining that § 1983


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“plainly requires proof of an affirmative causal connection between the actions taken

by a particular person ‘under color of state law’ and the constitutional deprivation”);

Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986) (“Causation is an essential

element of a section 1983 cause of action.”); Deaton v. Montgomery Cty., 989 F.2d

885, 889 (6th Cir. 1993) (“Congress did not intend § 1983 liability to attach where

causation is absent.”). This causal element is what the jury instruction and verdict

forms relay.

      Next, Petersen presented evidence such that the jury could have found that

each Defendant “intentionally used force maliciously and sadistically for the purpose

of causing harm to [Petersen].”       For example, Petersen testified that all five

Defendants were present during the encounter and that he “could see at least four to

five pairs of feet stomping on [him].” In addition, Petersen had five eyewitnesses

describe the encounter in detail, including three who identified individual

Defendants. From such testimony, and as permitted by the jury instruction and

verdict forms, the jury could have found each Defendant liable. Thus, Petersen was

able to present a case in which a jury could have held the Defendants responsible for

using excessive force—contrary to his contention otherwise.




      3. Petersen waived his new argument that the jury should have been
         charged on the duty to intervene
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      Petersen also argues that the jury instruction was erroneous because it is

“irreconcilable” with the Court’s “long line” of cases that impose liability on

correctional officers for failing to intervene when they witness another officer using

excessive force. However, to the extent Petersen argues a new trial should be given

due to the district court’s failure to charge the jury on the duty to intervene, his

argument is waived.

      “This Court has repeatedly held that an issue not raised in the district court

and raised for the first time in an appeal will not be considered by this court.” Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quoting Walker

v. Jones, 10 F.3d 1569, 1572 (11th Cir.1994)) (internal quotation marks omitted);

see also Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000) (“Arguments raised

for the first time on appeal are not properly before this Court.”). Thus, even if

Petersen had objected to the jury instruction on the basis that it did not take into

account a duty to intervene claim, Petersen’s objection would have been to no avail,

because he never alleged such a claim. Instead, Petersen only pleaded the claims of

“excessive use of force, malicious intent and denial to my right of Due Process”—

claims involving affirmative abusive acts by Defendants.

      Though Petersen may argue on appeal that his broad pleading implies that

each Defendant breached his duty to intervene—by virtue of the presence of multiple

defendants alleged to have used excessive force against him—the language
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employed in the Complaint was not sufficient to put the Defendants or the district

court on notice of such a theory. Further, Petersen did not mention, much less assert,

the claim of failure to intervene during the two pretrial conferences or trial.

Ultimately, while courts show leniency to pro se litigants not enjoyed by those with

the benefit of a legal education, this leniency does not give a court license to serve

as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order

to sustain an action. GJR Investments, Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369

(11th Cir. 1998), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662

(2009).

      Finally, the district court did not commit plain error by not instructing the jury

on the duty to intervene. Farley, 197 F.3d at 1329 (dictating that plain error review

is appropriate where a party fails to raise an objection to a jury instruction and

objection would not have been futile). Put simply, the district court could not have

committed plain error by failing to instruct the jury on a theory that had not been

raised by Petersen.




   C. Petersen’s Request for Appointment of Counsel

      Prior to trial, Petersen moved the district court to appoint counsel on his

behalf. The court addressed and denied Petersen’s motion during the April 2016

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pretrial conference but continued the trial in order to give Petersen additional time

to obtain counsel. Petersen did not obtain counsel on his own behalf, and none was

appointed.

      Petersen argues the district court abused its discretion in declining to appoint

him counsel; but his argument fails. As this court has explained:

      A civil litigant, including a prisoner pursuing a section 1983 action, has
      no absolute constitutional right to the appointment of counsel. The
      appointment of counsel is instead a privilege that is justified only by
      exceptional circumstances, such as where the facts and legal issues are
      so novel or complex as to require the assistance of a trained practitioner.

Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (internal citations omitted);

see also Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982) (“The trial court is

not required to appoint counsel for an indigent plaintiff asserting a claim under 42

U.S.C. s 1983 (Supp. III 1979) unless the case presents exceptional circumstances.”).

      Moreover, the district court has “broad discretion” in deciding whether to

appoint counsel. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999); see also

Killian v. Holt, 166 F.3d 1156, 1157 (11th Cir. 1999) (same).

      Here, the Court does not conclude that this case is “so novel or complex” such

that the district court exceeded its discretion in declining to appoint Petersen counsel.

At bottom, this is a straightforward excessive force case involving a single incident,

and the trial court was in the best position to determine whether Petersen was capable

of adequately investigating or presenting his case to the jury. See Ulmer, 691 F.2d

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at 213. As stated by this court, the “key” in determining whether to appoint counsel

“is whether the pro se litigant needs help in presenting the essential merits of his or

her position to the court. Where the facts and issues are simple, he or she usually

will not need such help.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). The

trial court did not abuse its discretion in determining that Petersen did not need

counsel to assist him.

                                IV.    CONCLUSION

      The district court did not commit reversible error. Therefore, we affirm.




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JORDAN, Circuit Judge, concurring.

      Given the applicable standards of review that govern Mr. Petersen’s claims,

most of which are deferential, I agree that no reversible error has been shown.

Nevertheless, as the Court’s opinion explains, there were some errors and mistakes

in the district court (e.g., the use of the disciplinary reports), including some by Mr.

Petersen himself (e.g., his failure to object to the jury instructions), that may have

been avoided if Mr. Petersen had counsel. Because federal courts do not pay lawyers

who accept appointments to represent pro se litigants—the lawyers take the cases

pro bono or with the hope of obtaining statutory fees if they prevail—I believe

district courts should be appointing counsel more in pro se cases like this one that

go to trial. This case would have benefitted from such an appointment.




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