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

                                                FILED
                                                                 October 8, 2009
                               No. 08-41221
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

OTHA JAMES

                                           Plaintiff-Appellant
v.


DR WILLIAM GONZALEZ; DR MAXWELL; DR KEARNEY; DR HILTON

                                           Defendant-Appellees


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 3:06-CV-418


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      Otha James brought this pro se and in forma pauperis 42 U.S.C. § 1983
claim against Dr. William Gonzalez, Dr. Maxwell, Dr. Kearney, and Dr. Hilton
(Appellees), all of whom are employed by the University of Texas Medical
Branch (“UTMB”) hospital in Galveston, alleging that Appellees were negligent
and committed malpractice in connection with surgical procedures on his hand.
He asks for compensatory and punitive damages from Appellees in an amount



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
totaling more than one million dollars. The district court dismissed Appellant’s
civil rights complaint with prejudice and dismissed Appellant’s state law claims
of negligence without prejudice.
      There are four issues on appeal: (I) whether the district court abused its
discretion by denying Appellant’s motion for appointment of counsel; (II)
whether the district court abused its discretion by denying Appellant’s motion
for appointment of a medical expert; (III) whether the district court erred by
finding that Appellees were entitled to qualified immunity for Appellant’s § 1983
claims; and (IV) whether the district court abused its discretion by not retaining
jurisdiction over Appellant’s pendent state law claims.
I. Appointment of Counsel
      Appellant first appeals the district court’s denial of his motion to appoint
counsel. The denial of a motion to appoint counsel for an indigent plaintiff
asserting a § 1983 claim is reviewed for abuse of discretion. Cupit v. Jones, 835
F.2d 82, 86 (5 th Cir. 1987). It is well-settled that a civil rights complainant has
no right to the automatic appointment of counsel unless the case represents
exceptional circumstances. Branch v. Cole, 686 F.2d 264, 265 (5 th Cir. 1982).
Although we have said that no comprehensive set of factors can be fully
identified, in making this determination we consider:
     (1) the type and complexity of the case; (2) whether the indigent is
     capable of adequately presenting his case; (3) whether the indigent
     is in a position to investigate adequately the case; and (4) whether
     the evidence will consist in large part of conflicting testimony so as
     to require skill in the presentation of evidence and in cross
     examination.
Ulmer v. Chancellor, 691 F.2d 209, 213 (5 th Cir. 1982) (internal citations
omitted).   Appellant has not demonstrated that any of these exceptional
circumstances apply. He asserts that he is an indigent prisoner, that the case
involves conflicting testimony because Appellees deny his allegations, and that
the case is complex because it involves medical doctors and their supervisors.
These are common elements in civil rights cases and do not in this case rise to

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the level of exceptional circumstances; the district court did not err in declining
to appoint counsel.
II. Appointment of Medical Expert
      Appellant next appeals the district court’s denial of his motion to appoint
an expert witness on his behalf. In Pedraza v. Jones, we confronted an almost
identical case in which a plaintiff proceeding in forma pauperis requested that
a medical expert be appointed to testify on his behalf; we held that the “district
court has no authority to appoint an expert witness under [28 U.S.C. § 1915, the
in forma pauperis statute].” 71 F.3d 194, 196 (5 th Cir 1995). The district court
thus did not err by refusing to do so here.
III. Immunity for 42 U.S.C. § 1983 claim
      The standard of review for grant of summary judgment under Rule 56 is
de novo. FDIC v. Ernst & Young, 967 F.2d 166, 169 (5 th Cir. 1992). Appellant
brought a medical deliberate indifference claim under 42 U.S.C. § 1983, seeking
damages from Appellees in both their official and individual capacities. The
district court found that Appellees were immune from liability in all respects;
Appellant challenges that determination.
      Appellees first argue that they are immune from liability in their official
capacities under the Eleventh Amendment, which bars an action in federal court
by a citizen of a state against his or her own state, including a state agency,
unless such immunity is expressly waived. Martinez v. Texas Dep’t of Criminal
Justice, 300 F.3d 567, 573 (5 th Cir. 2002). It is undisputed that Appellant sued
Appellees for actions taken during their course of employment at UTMB, a state
agency. Thus, the district court correctly determined that Appellees are entitled
to immunity under the Eleventh Amendment for the claim against them in their
official capacities.
      Similarly, the district court did not err when it determined that Appellees
were entitled to qualified immunity for claims brought against them in their
individual capacities. “The doctrine of qualified immunity serves to shield a

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government official from civil liability for damages based upon the performance
of discretionary functions.” Cozzo v. Tangipahoa Parish Council - President
Gov’t, 279 F.3d 273, 284 (5 th Cir. 2002) (internal citations omitted). To overcome
the affirmative defense of qualified immunity, “a plaintiff must satisfy a
two-prong test.     First, he must claim that the defendants committed a
constitutional violation under current law. Second, he must claim that the
defendants' actions were objectively unreasonable in light of the law that was
clearly established at the time of the actions complained of.” Club Retro L.L.C.
v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (internal quotation marks and
citations omitted). To show the constitutional injury alleged here, Appellant
must show, at a minimum, that Appellees exhibited deliberate indifference to his
serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). The medical
records indicate that Appellant received extensive care for his right hand,
including two surgeries, administration of pain medication, and several physical
therapy visits. The district court correctly found that Appellant has therefore
failed to establish a violation of his constitutional rights and has not overcome
Appellees’ qualified immunity defense.
IV. Pendent state law claims
      A district court’s determination of whether to retain jurisdiction over state
law claims is reviewed for abuse of discretion. Priester v. Londes County, 354
F.3d 414, 425 (5 th Cir. 2004). Appellant argues that the district court erred by not
retaining jurisdiction over his pendent state law claims for malpractice and
negligence. Generally, when all federal claims have been dismissed, a district
court should dismiss any pendent state law claims without prejudice so that the
Plaintiff may re-file his claims in the appropriate state court. Wong v. Stripling,
881 F.2d 200, 204 (5 th Cir. 1989). Here, the complaint has failed to state a federal
claim, and the district court did not abuse its discretion in dismissing Appellant’s
state law claims without prejudice.
      For the foregoing reasons, the district court’s judgment is AFFIRMED.

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