William Webb v. Mr. Orsolit

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999004254-2]; denying Motion to compel [998906191-2], denying Motion to compel [998877305-2] Originating case number: 3:07-cv-00062-JPB. Copies to all parties and the district court/agency. [999028826]. Mailed to: William Webb. [12-6653]

Appeal: 12-6653

Doc: 37

Filed: 01/24/2013

Pg: 1 of 7

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6653

WILLIAM EUGENE WEBB,
Plaintiff – Appellant,
v.
JOE DRIVER, Warden; MR. MARTINEZ,
ORSOLITS, Assoc. Warden, DR. JORGES
BRANSON; DR. RICHARD RAMIREZ,

Acting Warden; MR.
VAZQUEZ; DR. HERMAN

Defendants – Appellees,
and
MR. GREENWALL, Food Service Administrator;
BRADLEY, Supervisor of Education; HAROLD BOYLES,

MS.

DEBRA

Defendants.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cv-00062-JPB)

Submitted:

January 17, 2013

Decided:

January 24, 2013

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William Eugene Webb, Appellant Pro Se.
Alan McGonigal,
Assistant United States Attorney, Wheeling, West Virginia, for

Appeal: 12-6653

Doc: 37

Filed: 01/24/2013

Pg: 2 of 7

Appellees.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 12-6653

Doc: 37

Filed: 01/24/2013

Pg: 3 of 7

PER CURIAM:
William Eugene Webb appeals from the jury’s verdict
for Defendants in his Bivens v. Six Unknown Named Agents of Fed.
Bureau

of

Narcotics,

403

U.S.

388

(1971)

suit,

finding

that

Defendants were not deliberately indifferent to Webb’s medical
needs

regarding

his

hernia.

Webb

preliminary district court orders.
and

find

no

substantially

reversible
for

the

appeals

various

We have reviewed the record

error.

reasons

also

Accordingly,

stated

by

the

we

affirm

district

court.

Webb v. Driver, No. 3:07-cv-00062-JPB (N.D.W. Va. July 8, 2011;
July 29, 2011; Aug. 9, 2011; Jan. 18, 2012).
briefly

consider

certain

of

Webb’s

In addition, we

appellate

claims

not

addressed in detail by the district court.
Webb

challenges

the

district

court’s

denial

of

his

request for an interlocutory appeal regarding the performance of
his appointed attorney.

A district court may certify for appeal

an order not otherwise appealable should the court find that
there

is

a

difference

controlling
of

opinion

issue
and

of

that

law
an

on

which

immediate

there
appeal

is

a

would

materially advance the ultimate termination of the litigation.
28 U.S.C. § 1292(b) (2006).
no

authority

supporting
an

As an initial matter, Webb provides

the

interlocutory

conclusion
appeal

the

itself

denial
an

of

a

request

for

order.

Moreover, even if it were, the order at issue does not
3

is

that

appealable

Appeal: 12-6653

Doc: 37

Filed: 01/24/2013

Pg: 4 of 7

satisfy the requirements of § 1292(b).

There is no difference

of opinion on the question of whether an indigent litigant has a
constitutional right to assistance of counsel in a civil suit.
See Sanchez v. United States, 785 F.2d 1236, 1237 (8th Cir.
1986).

Further, an immediate appeal would likely not have had

an effect on the timeline of the litigation, as Webb shows no
likelihood
appeal.

that

he

would

have

succeeded

in

an

interlocutory

Accordingly, the district court did not err in denying

Webb’s request for an interlocutory appeal.
Next,

Webb

challenges

documents as irrelevant.

the

exclusion

of

certain

While the order Webb cites in his

informal brief does not provide any reasoning or describe the
documents excluded, Webb claims in his informal brief that the
district court erred in excluding evidence of his acid reflux
disease

(“GERD”),

However,

although

related

to

connecting

his
the

as

well

Webb

his

contends

hernia,
two

as

he

“actual

on

appeal

failed

conditions

in

to

hernia

and

that

his

provide

any

district

court.

scars.”
GERD

was

evidence
Moreover,

regarding his scars, Webb failed to show any medical evidence of
permanent damage, rendering his present appearance irrelevant.
As such, Webb has failed to show any abuse of discretion by the
district court.

See United States v. Johnson, 617 F.3d 286, 292

(4th Cir. 2010) (providing standard of review).

4

Appeal: 12-6653

Doc: 37

Filed: 01/24/2013

Pg: 5 of 7

Without citing any specific motions or orders, Webb
challenges

the

district

court’s

failure

to

investigate

his

allegations that Defendants were retaliating against him during
the pendency of his case.

In one of his motions, Webb claimed

that prison officials were arranging for prisoners to assault
him and that he had been denied postage and legal resources.
The district court required the United States Attorney’s office
to

“make

the

necessary

arrangements

to

provide

the

pro

se

plaintiff with sufficient postage and photocopy capabilities.”
At trial, Webb complained about his treatment in his
then-current Mississippi prison.

The district court informed

Webb that it had no control over prisons located outside the
Northern District of West Virginia.

The court noted that it

would

need

entertain

assistance

with

motions

should

prosecuting

otherwise get involved.

Webb

his

case

additional

but

that

it

time

would

or
not

On appeal, Webb presents his claim in a

conclusory manner and does not provide any evidence that the
conditions

of

Defendants.

which

he

complained

were

orchestrated

by

the

Further, he does not aver that Defendants’ alleged

retaliation prejudiced his case.
We

conclude

that,

even

assuming

for

the

sake

of

argument that the district court was under some sort of duty to
investigate, any failure to do so is irrelevant to the issues in
this case.

Webb is free to bring another suit addressing his
5

Appeal: 12-6653

Doc: 37

Filed: 01/24/2013

Pg: 6 of 7

mistreatment during the time of the pendency of this case should
he believe that such treatment violated his rights.
absent

any

allegations

that

Defendants’

actions

However,

impacted

his

instant suit, his assertions of retaliation have no bearing on
his appeal.
Finally, Webb challenges the district court’s recess
of ten days in the middle of the trial, its refusal to question
the jury upon their return to ensure that their integrity was
not breached, and the court’s refusal to permit the jury to have
transcripts

of

Defendant

jury requested them.

Orsolits’

testimony

even

though

the

Webb provides no details or cites to the

record, he fails to show how the transcripts would have altered
the jury’s verdict, and he fails to make any showing that the
jury was compromised.
Our review of the record shows that the court had to
recess the trial based upon another, previously scheduled trial.
Moreover, it appears that the court believed the trial would be
over

in

three

days,

making

any

recess

unnecessary,

instead Webb took three days to present his case.

but

that

Our review of

the transcript reveals that Webb’s pro se case was presented in
a lengthy and repetitive manner.
that

the

court

put

a

time

limit

In fact, the jury requested
on

closing

addition, Webb did not object to the recess.

6

arguments.

In

Appeal: 12-6653

Doc: 37

Filed: 01/24/2013

Based

on

our

Pg: 7 of 7

review

of

the

record,

the

district

court’s recess of ten days, while not ideal for the presentation
of

Webb’s

case,
trial

lengthier

was

not

than

intentional

the

parties

and

resulted

from

anticipated.

a

Webb’s

allegations of prejudice are merely speculative, and he provides
no specifics as to items or details that would be hard for the
jury to remember.
assertions
Finally,

that
Webb

transcribe

Likewise, he proffers nothing to support his
the

jury

failed

Orsolits’

to

was

compromised

object

testimony,

to

the

and

during
court’s

he

makes

the

recess.

refusal
no

to

specific

argument as to how this testimony would have altered the jury’s
verdict.

Given Webb’s conclusory arguments and his failure to

preserve his claims for appeal, we find that his claims are
without merit.
Based on the foregoing, we affirm the judgment of the
district court.
moot

and

dispense

We deny Webb’s motions to compel transcripts as

deny

his

with

oral

contentions

are

motion

for

argument

adequately

appointment
because

presented

in

the
the

of

counsel.

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

7