     Case: 11-50746     Document: 00511866219         Page: 1     Date Filed: 05/24/2012




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

                                                                            FILED
                                                                           May 24, 2012
                                     No. 11-50746
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

GEORGE JONES,

                                                  Plaintiff-Appellant

v.

SERGEANT RUIZ; SHANE BENNETT; VIVIANA MARTINEZ; WILLIAM
HUGHS; ANGELICA DUMARAN; ROBERT D. PITTMON,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:08-CV-788


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        George Jones, Texas prisoner # 1436799, appeals the denial of his motion
for new trial following a jury verdict in favor of the defendants in a 42 U.S.C.
§ 1983 action alleging claims of excessive use of force and deliberate indifference
to safety. In his motion for new trial, Jones contended that he was denied a fair
trial because prison officials deliberately deprived him of his legal materials in
the months leading up to trial and because he was not appointed counsel.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50746    Document: 00511866219      Page: 2    Date Filed: 05/24/2012

                                  No. 11-50746

      A district court has discretion to grant a new trial under Rule 59(a) of the
Federal Rules of Civil Procedure when it is necessary to do so “to prevent an
injustice.” United States v. Flores, 981 F.2d 231, 237 (5th Cir. 1993) (quoting
Delta Eng’g Corp. v. Scott, 322 F.2d 11, 15-16 (5th Cir. 1963). “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.” Sibley v.
Lemaire, 184 F.3d 481, 487 (5th Cir. 1999). The district court’s decision to grant
or deny a Rule 59(a) motion will be reversed only for an abuse of discretion.
Flores, 981 F.2d at 237; Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d
161, 164 (5th Cir. 1990).
      With regard to the deprivation of legal materials, Jones does not
specifically explain how his lack of access to the materials prejudiced his
presentation of his case. His conclusional allegations are insufficient to warrant
relief. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Nor does Jones
dispute the district court’s finding that he had access to, and made use of, a
substantial amount of legal material during trial and that he referred to the
materials throughout the trial and used them to assist in cross-examining
witnesses.
      A court is not required to appoint counsel for an indigent plaintiff
asserting a claim under § 1983 absent exceptional circumstances. Cupit v.
Jones, 835 F.2d 82, 86 (5th Cir. 1987). Courts consider several factors in this
determination, Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982), and we
will overturn a decision denying appointment of counsel only if there is a clear
abuse of discretion, Cupit, 835 F.2d at 86.
      Jones has demonstrated an ability to adequately investigate his case and
present coherent factual and legal arguments; he cross-examined numerous
witnesses at trial; the facts surrounding the single incident in question are
relatively straightforward; and the legal contours of excessive force and

                                         2
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                                 No. 11-50746

deliberate indifference claims are well-established and not particularly complex.
See Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992).
      Given the foregoing, Jones has not shown that the district court erred in
finding that Jones had not met his burden of demonstrating harmful error
regarding the deprivation of his legal materials and lack of appointed counsel or
that the district court abused its discretion in denying his motion for new trial
on that basis. See Sibley, 184 F.3d at 487; Flores, 981 F.2d at 237. The
judgment of the district court is AFFIRMED.




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