Arthur Taylor, Jr. v. Pulliam

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:14-cv-00641-JLK-RSB. Copies to all parties and the district court. [1000021327]. Mailed to: Arthur Taylor, Jr. [16-6509]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6509

ARTHUR TAYLOR, JR.,
Plaintiff – Appellant,
v.
PULLIAM, Correctional Officer; S. FULLER,
Defendants – Appellees,
and
DEPARTMENT OF CORRECTIONS; HENDERSON, Correctional Officer;
DR.
WANG; C. MAYES; C. A. MANIS; SPECIAL AGENT CRAIG
O’DER; MAJOR THOMAS MEYER; PATRICIA JONES, R.N.; BARRY
CRANE; JOHN DOE, The Medical Administrator of Green Rock,
Defendants.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Jackson L. Kiser, Senior
District Judge. (7:14-cv-00641-JLK-RSB)

Submitted:

December 2, 2016

Decided:

February 10, 2017

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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Arthur Taylor, Jr., Appellant Pro Se. Margaret Hoehl O’Shea,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Arthur

Taylor,

Jr.,

appeals

the

district

court’s

orders

dismissing in part his complaint, granting in part Defendants’
motion for summary judgment, and entering judgment in favor of
Defendants David Pulliam and Stephen Fuller (“Trial Defendants”)
following a jury verdict in their favor.

Taylor filed suit

against Trial Defendants and others pursuant to 42 U.S.C. § 1983
(2012), alleging excessive use of force, denial of meaningful
medical care, assault and battery, and denial of protections
under the Americans with Disabilities Act and the Rehabilitation
Act.

All claims and Defendants were dismissed prior to trial,

with the exception of Taylor’s claim against Trial Defendants
for excessive use of force in violation of the Eighth Amendment.
Giving liberal interpretation to Taylor’s informal brief,
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), Taylor
argues

that

his

civil

rights

were

violated

by

various

Defendants, and he argues that the jury’s verdict was against
the weight of the evidence.

Taylor also argues that his Sixth

Amendment and Due Process Clause rights were violated by the
district court’s refusal to appoint counsel.

Finally, Taylor

contends that the district court erred in refusing to allow him
to

(1)

present

photographic

evidence

(2) have witnesses testify at trial.

3

of

his

injuries,

and

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As to Taylor’s first argument, he alleges no specific error
in the district court’s determination that several of his claims
were insufficient to survive summary dismissal or a motion for
summary

judgment,

Lawrence

Wang

Having

should

failed

substantive

to

Ctr.,

that

be

allege

conclusions,

determinations.
Med.

and

Taylor’s

dismissed
any

for

error

Taylor

claim

has

against

failure

in

the

waived

to

Doctor

prosecute.

district
review

of

court’s
those

See 4th Cir. R. 34(b); Wahi v. Charleston Area

Inc.,

562

F.3d

599,

607

(4th

Cir.

2009).

Furthermore, to the extent that Taylor seeks to challenge the
jury’s verdict as being against the weight of the evidence, he
failed to file a postjudgment motion pursuant to Federal Rule of
Civil Procedure 50 or 59(a) * within 28 days of the judgment.
Accordingly,

Taylor’s

challenge

to

the

jury’s

verdict

is

foreclosed.

Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146,

153-60 (4th Cir. 2012).
Regarding Taylor’s argument that his Due Process Clause and
Sixth Amendment rights were violated by the district court’s
denial of his motion to appoint counsel, civil litigants have no
constitutional right to counsel, and a district court’s refusal
*

Under Rule 59(a), “the district court must set aside the
verdict and grant a new trial if . . . the verdict is against
the clear weight of the evidence.” Minter v. Wells Fargo Bank,
N.A., 762 F.3d 339, 346 (4th Cir. 2014) (internal quotation
marks and brackets omitted).

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to appoint counsel is reviewed only for abuse of discretion.
See

Whisenant

v.

Yuam,

739

F.2d

160,

163

(4th

Cir.

1984),

abrogated on other grounds by Mallard v. U.S. Dist. Court for
the S. Dist. of Iowa, 490 U.S. 296 (1989).

A district court

should appoint counsel if “a pro se litigant has a colorable
claim but lacks the capacity to present it.”

Id.

The record

establishes that Taylor was capable of adequately presenting his
claims, and we therefore conclude that the district court did
not

abuse

its

discretion

in

denying

his

motion

to

appoint

counsel.
Finally, Taylor argues that the district court erred by not
allowing him to present photos or witnesses to the jury.

At

trial, Taylor attempted to introduce photos of his injuries to
the jury, but the district court excluded the photos on the
ground
trial.

that

Taylor

failed

to

disclose

the

evidence

prior

to

The court likewise informed Taylor that he could not

present witnesses because he failed to present a witness list
prior to trial.
“We review for an abuse of discretion both the district
court’s finding of a disclosure violation and its decision to
exclude evidence as a discovery sanction.”

Russell v. Absolute

Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014).
Pursuant to Federal Rule of Civil Procedure 37, a
party who fails to comply with the disclosure
requirements of Rule 26(a) . . . is not allowed to use
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that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.
Id.

(internal

determining

quotation

whether

marks

evidence

and

should

ellipses

omitted).

nevertheless

be

In

admitted,

courts consider the following five factors:
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the
evidence
Id. at 396-97.
After thoroughly reviewing the record, we conclude that the
five factors weigh in favor of excluding any witness testimony
that Taylor intended to present.
In contrast, although the five factors may have weighed in
favor of admitting Taylor’s photographic evidence, we find that
the

court’s

decision

harmless error.

to

exclude

the

photographs

constitutes

See Bank of Montreal v. Signet Bank, 193 F.3d

818, 834 (4th Cir. 1999) (applying harmless error analysis to
decision to exclude evidence in a civil case).

To prove the use

of excessive force in violation of the Eighth Amendment, Taylor
was required to demonstrate that “the prison official acted with
a sufficiently culpable state of mind (subjective component) and
.

.

.

the

injury

inflicted

(objective component).”

.

.

.

was

sufficiently

serious

Iko v. Shreve, 535 F.3d 225, 238 (4th
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2008).

applied

The

core

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inquiry

in

a

good-faith

discipline,

or

maliciously

rests

effort
and

on

to

“whether

maintain

sadistically

Hudson v. McMillian, 503 U.S. 1, 7 (1992).

force

was

restore

cause

to

or

harm.”

The extent of injury

suffered may be relevant to whether the force was necessary and
indicative of the amount of force applied.

Wilkins v. Gaddy,

559 U.S. 34, 37-38 (2010).
In this case, however, the proffered evidence, photographs
of

Taylor’s

Defendants

injuries,

applied

force

was
in

not
a

relevant

to

good-faith

whether

effort

to

Trial
restore

discipline, or maliciously and sadistically to cause harm.
only

evidence

introduced

on

that

issue

was

the

testimony

The
of

Taylor, Fuller, and Pulliam, the only individuals present when
force

was

applied,

who

all

gave

the

same

account:

Taylor

suffered an injury to his arm while being handcuffed by the
correction officers.

Notably, Taylor never testified that the

extent of his injuries was different from what was described by
the

Trial

Defendants.

Accordingly,

photographs

of

Taylor’s

injuries would have no relevance to the credibility of those
witnesses or whether the Trial Defendants acted maliciously or
sadistically to cause Taylor’s injuries.

The exclusion of the

photographs therefore did not affect the outcome of the trial.
Accordingly,
judgment.

we

affirm

the

district

court’s

orders

and

We dispense with oral argument because the facts and
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legal
before

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contentions
this

court

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are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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