Bourne v. Gunnels et al

Filing 183

MEMORANDUM OPINION AND ORDER - Plaintiff's 176 MOTION for New Trial is DENIED...*** Case terminated on 2/9/23. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)

Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 1 of 21
United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL BOURNE, TDCJ #1567258,
Plaintiff,
v.

February 09, 2023
Nathan Ochsner, Clerk

§

§

§

§

§
§

LIEUTENANT MICHAEL GUNNELS;
§
SGT. ANTHONY HOWARD, JR.; OFCR. §
ROLAND WEAVER; OFCR. ROBERT
§
LEBLANC; OFCR. ERNEST PRICE;
§
and OFCR. TAJUDEEN AJISEFINI,
§
Defendants.

CIVIL ACTION NO. H-16-0515

§

§

MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR NEW TRIAL

The plaintiff,

Michael Bourne,

filed this prisoner civil

rights action against several correctional officers employed by the
Texas Department of Criminal Justice

( "TDCJ") ,

alleging that

excessive force was used against him during a cell extraction at
the Estelle High Security Unit.

On August 24,

returned a verdict in favor of the defendants:
Gunnels,

Sergeant Anthony Howard,

Jr.,

2022,

a jury

Lieutenant Michael

Officer Roland Weaver,

Officer Robert LeBlanc, Officer Ernest Price, and Officer Tajudeen
Ajisefini.

See Verdict, Docket Entry No. 171, p. 1.

Consistent

with the jury's verdict the court entered a judgment dismissing
this case with prejudice.

See Final Judgment,

Docket Entry

No. 174, p. 1.
Now pending is Plaintiff's Motion for New Trial With Exhibits
and Declaration in Support of Motion ( "Motion for New Trial") ,

Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 2 of 21

Docket Entry No.
Response

in

176.

Opposition

The defendants have filed Defendants'
to

Plaintiff's Motion

for

New

Trial

("Defendants' Response"), Docket Entry No. 179; and Bourne has
filed Plaintiff's Reply to Defendants' Response in Opposition to
Plaintiff's Motion for New Trial
Entry No. 180.

("Plaintiff's Reply"), Docket

After careful consideration of the entire record

and the court's clear recollection of the trial, the Motion for New
Trial will be denied for the reasons explained below.
I.

BACKGROUND

The facts underlying the claims in this case, which stem from
an incident that occurred at the Estelle High Security Unit on
November 21, 2014, have been set forth previously. 1
summary is based on the

evidence

The following

presented at trial,

which

commenced on August 22, 2022, and finished with a jury verdict on
August 24, 2022, 2 and which featured testimony from the plaintiff,
two inmate witnesses, each of the defendants, and former defendant
Major Carlos Applewhite. 3

Memorandum Opinion and Order ("MO&O"), Docket Entry
No. 61, pp. 2-11; Opinion, Docket Entry No. 75, pp. 2-4.
For
purposes of identification all page numbers refer to the pagination
imprinted by the court's Electronic Case Filing ("ECF") system.
Courtroom Minutes, Docket Entry No. 159; Courtroom
Minutes, Docket Entry No. 160; and Courtroom Minutes, Docket Entry
No. 161.
The claims of bystander liability against then-Sergeant
Applewhite were dismissed previously on summary judgment.
See
MO&O, Docket Entry No. 61, p. 31.
3

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Lieutenant Gunnels testified that he obtained authorization
under the TDCJ Use of Force Plan to forcibly remove Bourne from his
cell after Bourne jammed his food-tray slot and refused to obey
orders to release it in violation of prison rul�s.
planned use of force,

During this

most of which was captured on video by

Officer Sascha Ford, Lieutenant Gunnels warned Bourne several times
that a chemical agent would be deployed into his cell unless he
complied with orders to release his food-tray slot.
failed to heed those

warnings,

When Bourne

Lieutenant Gunnels sprayed a

quantity of chemical agent into the cell.

A team of five officers

dressed in protective gear and carrying shields (Sergeant Howard,
Officer

Weaver,

Officer LeBlanc,

Officer

Price,

and

Officer

Ajisefini) then entered the darkened cell to subdue Bourne.
The jury had several opportunities to watch the video, which
featured Bourne refusing to comply with multiple orders and cursing
loudly at the officers while causing a disturbance in the cell
block.

There was a struggle between Bourne and the officers who

entered his cell, which lasted several minutes.

The altercation

could be heard but not seen on the video because the lights were
off in Bourne's cell, and there were two supervisory officials
(Lieutenant Gunnels and Major Applewhite) who were standing in the
doorway shouting instructions.

A few minutes later Bourne emerged

from the cell in restraints and was escorted to the prison
infirmary where he was examined by a nurse.
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Bourne's examination in the infirmary was also documented on
the use-of-force video.

Bourne reported that his eyes and skin

were burning from the chemical agent.

He sustained bruises and

scratches on his back, chest, and face, which appeared swollen.
Bourne testified that the use of force was unnecessary and that he
was beaten gratuitously by the officers while on the ground in his
darkened cell.

In addition to the injuries documented by the nurse

who examined him following the assault, Bourne testified that he
was treated for a concussion and an eye infection at a local
hospital several days after the incident.

After hearing all of the

evidence, including testimony from two inmate witnesses who were
present on the cell block when the use of force occurred (Patrick
Holzer and David Hickman), the jury found that the defendants did
not apply force maliciously and sadistically for the purpose of
causing harm, rather than as the result of a good-faith effort to
maintain or restore discipline, and that the defendants did not
violate the Eighth Amendment. 4
Bourne now moves for a new trial under Rule 59 of the Federal
Rules

of

Civil

Procedure,

arguing

that

the

court

erred

by

(1) excluding relevant evidence; and (2) denying his requests for
appointment of counsel. 5

The defendants argue that the Motion for

New Trial must be denied because it is untimely anj without merit. 6
4

See Verdict, Docket Entry No. 171, p. 1.

5

See Motion for New Trial, Docket Entry No. 176, pp. 1-2.

6

See Defendants' Response, Docket Entry No. 179, pp. 2-3.
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II.

STANDARD OF REVIEW

Motions for new trial are governed by Rule 59 of the Federal
Rules of Civil Procedure. A district court has discretion to grant
a new trial when doing so is necessary to prevent an injustice.
See Seibert v. Jackson County, Mississippi, 851 F.3d 430, 438 (5th
Cir. 2017).

A jury verdict is entitled to great deference.

See

Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 838 (5th
Cir. 2004).

"New trials should not be granted on evidentiary

grounds unless, at a minimum, the verdict is against the great
weight of the evidence."

Dawson v. Wal-Mart Stores, Inc., 978 F.2d

205, 208 (5th Cir. 1992).
Apart from arguments based on evidentiary sufficiency, motions
for new trial are reviewed under the harmless-error standard:
"Unless justice requires otherwise,

no error in admitting or

excluding evidence - or any other error by the court or a party is ground for granting a new trial, for setting aside a verdict, or
for vacating,
order."

modifying,

or otherwise disturbing a judgment or

Fed. R. Civ. P. 61.

Thus, in deciding a motion for new

trial, "the court must disregard all errors and defects that do not
affeet any party's substantial rights."

Id.

In other words, to be

entitled to a new trial based on erroneously admitted or excluded
evidence, the party seeking a new trial must show that the trial
court both erred in its decision and that the error adversely
influenced the jury's verdict.

See Munn v. Algee, 924 F.2d 568,

571-73 (5th Cir. 1991).
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III.
A.

DISCUSSION

Timeliness

"A motion for a new trial must be filed no later than 28 days
after the entry of judgment."

Fed. R. Civ. P. 59(b).

"The time

limit for filing a new trial motion imposed i"1 Rule 59(b) is
mandatory and jurisdictional; it cannot be extended by the trial
court."

Tarlton v. Exxon, 688 F. 2d 973,

977 (5th Cir. 1982).

Because the court entered its final judgment in this case on
August 24, 2022, 7 a motion for new trial was due on September 21,
2022. Noting that the Motion for New Trial was not entered on the
court's docket sheet until on September 29, 2022, the defendants
argue that the motion should be denied as untimely. 8
Although the Motion for New Trial was received by the court on
September 29, 2022, Bourne indicates in the certificate of service
that he submitted the motion to the prison mail system for delivery
on September 14, 2022. 9

Pointing to the certificate of service,

Bourne argues that he placed his copy of the Motion for New Trial
in the prison mail system for delivery to the court along with a
copy to defendants' counsel at the State Attorney General's Office
within the time allowed by Rule 59(b). 10

Bourne correctly notes

7

See Final Judgment, Docket Entry No. 174.

8

See Defendants' Response, Docket Entry No. 179, p. 3.

9

See Motion for New Trial, Docket Entry No. 176, pp. 14-15.

10

see Plaintiff's Reply, Docket Entry No. 180, pp. 1-2.
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that, as a prison inmate, his pleadings are treated as filed on the
date that they are placed in the prison mail system for delivery to
the court, rather than the date they are received.

See Houston v.

Lack, 108 S. Ct. 2379, 2382-83 (1988); see also Spotville v. Cain,
149 F.3d 374, 378 (5th Cir. 1998) (explaining that a prisoner's
pleadings are deemed filed under the prison mailbox rule at the
time his papers are delivered to prison authorities for mailing).
To resolve the issue of timeliness, the court directed the
defendants to supplement the record with prison records for inmate
legal mail during the relevant time for filing a motion under
Rule 59. 11

In response, the defendants have provided inmate legal

mail records from Bourne's assigned prison facility, which are
summarized
Kelley. 12

in an

affidavit

from Mail Room Supervisor Debbie

According to Kelley, the "Outgoing Legal, Special and

Media Mail Log" records confirm that the Allred Unit mail room
received two items of legal mail from Bourne on September 15, 2022,
for delivery to the court and to defendants' counsel. 13

This is

consistent with the date shown on the certificate of service, which
demonstrates that Bourne executed his Motion for New Trial the
11

See Order for Inmate Legal Mail Records, Docket Entry No. 181.

See Affidavit of Debbie Kelley ( "Kelley Affidavit"), Exhibit C
to Defendants' Supplement Pursuant to Court's Order ("Defendants'
Supplement"), Docket Entry No. 182-3.
12

See id. at 3; see also Outgoing Legal, Special and Media Mail
Log, Exhibit A to Defendants' Supplement, Docket Entry No. 182-1,
p. 35.
13

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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 8 of 21

previous day,

September 14,

2022,

and tendered it to prison

officials for delivery to the court before the deadline found in
Rule 59{b) expired. 14

The records show that one item, which was

addressed to this court's chambers, was returned on September 16,
2022,

due to insufficient postage. 15

The correct postage was

applied and the item was delivered to the United States Postal
Service on September 21, 2022. 16

The records do not show that the

lack of sufficient postage was attributable to Bourne or that he
failed to place a properly addressed Motion for New Trial in the
prison mail system before the deadline found in Rule 59(b) expired
on September 21,

2022.

As a result,

the defendants have not

demonstrated that the Motion for New Trial was untimely or that it
is barred from consideration under Rule 59(b).
B.

Evidentiary Rulings

Bourne moves for a new trial under Rule 59(b) of the Federal
Rules

of

Civil

Procedure,

arguing

that

the

court

erred

by

excluding relevant evidence in the form of (1) disciplinary records
belonging

to

Sergeant

Howard,

Officer

Weaver,

and

Officer

Ajisefini, and Major Applewhite; (2) testimony from the plaintiff
and other inmate witnesses, Patrick Holzer and David Hickman, about
14

See Motion for New Trial, Docket Entry No. 176, pp. 14-15.

15

See Kelley Affidavit, Docket Entry No. 182-3, p. 4.

id.; see also Incoming Legal, Special and Media Mail Log,
Exhibit B to Defendants' Supplement, Docket Entry No. 182-2, p. 3.
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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 9 of 21

other "prior bad acts" by the defendants; (3) a witness statement
from the TDCJ Use of Force Report from Officer Sascha Ford, who was
unavailable for trial; (4) plaintiff's testimony about the cause of
his injuries; and (5) plaintiff's commissary receipts from the time
of the incident. 17
1.

Each argument is addressed in turn.

Disciplinary Reports

Before trial the defendants moved to exclude testimony,
evidence, or reference to any disciplinary action or reprimand
against the officers under Fed. R. Evid. 401, 403, and 404(b) . 18
Bourne contends that the court erred by granting that motion and
excluding disciplinary reports against Sergeant Howard, Officer
Weaver, Officer Ajisefini, and Major Applewhite, which would have
shown

that

misconduct. 19

these

defendants

had

been

involved

in

previous

Bourne argues that the disciplinary reports should

have been admitted as evidence of their bad character under
Rule 404(b) (2) of the Federal Rules of Evidence. 20
Bourne does not provide copies of the disciplinary reports,
but he provides citations to his disclosures and describes the
misconduct as follows:
17

See Motion for New Trial, Docket Entry No. 176, pp. 1-2.

See Defendants' Motion []
pp. 2-3.
18

in Limine, Docket Entry No.

19

See Motion for New Trial, Docket Entry No. 176, p. 2.

20

see id.
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96,

Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 10 of 21

1.

A few months before the use of force involving
Bourne, Officer Weaver assaulted an unidentified
inmate and tried to cover it up.

2.

At an unspecified time, Officer Ajisefini "maced a
prisoner with pepper spray" "because the prisoner
did something he disliked."

3.

At an unspecified time, Sergeant Howard and another
officer were escorting a prisoner in handcuffs .....,ho
.
"accidentally" fell and hurt himself. During that
same incident one of the officers (Bourne does not
say which one} "roundhouse kick [ed] another inmate."

4.

During his career with TDCJ, Major Applewhite has
reportedly been "written up" for filing "false
disciplinary cases on inmates,[] making degrading
remarks toward inmates,[] entering inmates cells to
fight them, [] and an array of other write ups
showing his disregard of TDCJ policy." 21

Bourne indicates that these disciplinary reports resulted in only
minor reprimands and that Applewhite was eventually promoted from
Sergeant to "Unit Major" despite being recommended at one time for
dismissal.22

He argues that the reports are proof that Weaver,

Ajisefini, and Howard entered his cell with hostile intent and that
TDCJ routinely tolerates officer misconduct.23
The

court

excluded

the

reports

as

irrelevant,

prejudicial, and inadmissible under Rules 403 and 404(b).

unduly
Under

Rule 401, evidence is relevant "if: (a) it has any tendency to make
a fact more or less probable than it would be withcut the evidence;
and {b) the fact is of consequence in determinj_ng the a.ction."
21

22
23

Id. at 11-12 (footnotes omitted).

ra. at 12-13.

Id. at 13.
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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 11 of 21

Fed. R. Evid. 401.

Rule 403 requires the exclusion of relevant

evidence "if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading
the jury,

undue delay,

cumulative evidence.

11

wasting time,

or needlessly presenting

Fed. R. Evid. 403. Rule 404(b)(1) prohibits

evidence of other crimes, wrongs, or acts "to prove a person 1 s
character in order to show that on a particular occasion the person
acted in accordance with the character.

11

Under a limited exception

found in Rule 404(b)(2), evidence of other crimes, wrongs, or acts
is admissible to prove
plan,

knowledge,

accident.

11

"motive, opportunity, intent, preparation,

identity,

absence

of

mistake,

or

lack

of

Fed. R. Evid. 404(b)(2).

Bourne notes that the court cited to three district court
decisions

when

excluding

the

proposed

disciplinary

reports:

(1) Huval v. Louisiana State University Police Dep't, Civil Action
No. 16-00553, 2018 WL 3199460 (M.D. La. June 29, 2018); (2) Herrera
v. Aguilar, Cv. No. SA-10-CV-00569, 2013 WL 5354518 (W.D. Tex.
Sept. 24, 2013); and (3) Graniczny v. City of El Paso, Texas, 809
F. Supp. 2d 597 (W.D. Tex. 2011) . 24

In each of these decisions the

district courts excluded evidence of an officer's disciplinary
history because the prejudicial effect outweighsd its probative
value for purposes of Fed. R. Evid. 403.

See Graniczny,

809

F. Supp. 2d at 605-606; Huval, Civ. No. 16-00553, 2018 WL 3199460,
24

See Motion for New Trial, Docket Entry No. 176, p. 2 n.2.
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at *3; Herrera, 2013 WL 5354518, at *3 (citing Maddox v. City of
Los Angeles, 792 F.2d 1408, 1417-18 (9th Cir. 1986) and Tanberg v.
Sholtis, 401 F.3d 1151, 1164-65 (10th Cir. 2005)).
Bourne contends that this court erred by relying on the
district court decisions in Graniczny, Huval, and Herrera because
evidence of the defendants'

bad character is admissible under

Rule 404(b), relying on Lamar v. Steele, 693 F.2d 559 (5th Cir.
1982) . 25

In Lamar the plaintiff was a "writ writer" in the Texas

prison system who sued a correctional officer for denying him
access to the courts.
that the officer:

Id. at 560.

The plaintiff in Lamar alleged

"(l) burned his legal documents, (2) asked one

inmate to assault him, (3) asked another to kill him, (4) invited
him to pick up and attempt to use a small knife while he ([the
defendant]) held a substantial hunting knife in his hand out of
view, and (5) promised to send him home 'in a pine box.'"
561.

Id. at

The Fifth Circuit affirmed the trial court's decision to

admit testimony at trial under Rule 404(b) from another inmate who
stated that on a prior occasion the officer had given him a knife
and asked him to kill another writ writer.

Id. at 561.

The Fifth

Circuit clarified that for character evidence to be admissible
under Rule 404 (b)

"the conduct tendered must be sufficiently

similar to the act under inquiry to minimize any doubt that the two
are products of the same mind."
25

Id. (citing McCormick, Evidence

Id. at 2.
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§

157 (1954)).

Noting that the evidence at issue was probative of

the officer's "desire to purge the prison of writ writing" and
"furnished a reason for the acts of which Lamar complained," the
Fifth Circuit found no abuse of discretion in admitting testimony
of his prior bad act.

Id.

The defendants argue that the disciplinary reports were
properly excluded because Bourne was seeking to admit them as
evidence that the defendants had a general propensity to engage in
violence and that their actions were in conformity with their
character on prior occasions. 26

Bourne does not establish that the

reports were admissible or that Lamar mandates a different result.
Unlike the decisions in Graniczny, Huvel, and Herrera, the opinion
in Lamar did not involve evidence of previous disciplinary reports
against an officer.

More importantly, unlike the plaintiff in

Lamar, Bourne has not alleged facts showing that the circumstances
outlined in the disciplinary reports bear any similarity to the
actions allegedly taken by the individual defendants during the
planned use of force at issue, which involved the extraction of an
inmate from his cell who was creating a disturbance on the cell
block.

See Lamar, 693 F.2d at 561.

For this reason, Bourne's

reliance on Lamar is unpersuasive.
The record shows that none of the defendants on trial were
disciplined in connection with the use of force involving Bourne at
26

See Defendants' Response, Docket Entry No. 179, p. 5.
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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 14 of 21

the Estelle High Security Unit on November 21, 2014. 27 Based on the
facts of this case, Bourne has not shown that the probative value
of the proposed disciplinary reports would have outweighed the
danger of unfair prejudice and confusion. See Fed. R. Civ. P. 403.
Bourne does not otherwise show that it would have been proper to
present evidence of prior disciplinary reports as proof of the
defendants' propensity to engage in violent acts.
Crenshaw v.

Herbert,

409

F. App'x 428,

430 (2d

See, e.g.,
Cir.

2011)

(affirming the district court's decision to deny a motion to compel
discovery of an officer's disciplinary reports, explaining that
"even

if

evidence

of

a

prior

substantiated

excessive

force

investigation existed, on the facts of the particular case before
us such evidence would be inadmissible to show that [the defendant]
acted violently in this instance") (citing Fed. R. Evid. 404(b))).
Therefore, he does not show that those reports were improperly
excluded or that he is entitled to a new trial on this basis.
2.

Testimony from Bourne, Patrick Holzer, and David Hickman

Bourne contends the court erred by sustainins objections from
defendants' counsel to testimony he attempted to give on his own
behalf and testimony that he attempted to elicit from two inmates
See TDCJ Use of Force Report, Exhibit B to De.fendants' Motion
for Summary Judgment With Brief in Support ("Defendants' MSJ") ,
Docket Entry No. 56-2, pp. 7, 9 (stating that no officers were
disciplined in connection with the use of force on November 21,
2014, but that the camera operator, Officer Ford, was counseled
about keeping the prisoner in full view of the camera at all times
possible)
27

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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 15 of 21

(Patrick Holzer and David Hickman), who were present at the Estelle
High Security Unit when the use of force occurred. 29

The testimony

that Bourne attempted to elicit was about other uses of force that
occurred in the prison as proof of the defendants' propensity to
commit violence against inmates. 29
connection

with

previous

For reasons discussed above in

disciplinary

reports

involving

the

defendants, Bourne does not show that the proposed testimony was
admissible under Rule 404(b) or that the court erred by sustaining
objections made by defendants' counsel.
3.

Officer Ford's Witness Statement

Officer Ford, who was dismissed as a defendant previously in
this case, 30 was summoned as a witness for the plaintiff, but was
excused from attending trial because his wife was suffering from
Stage III cancer and he was her only caregiver. 31

Bourne argues

that the court improperly excluded evidence in the form of a
witness statement given by Officer Ford, who was responsible for
videotaping the use of force. 32

Bourne points to a statement that

Ford gave during the administrative use-of-force investigation in
which Ford stated that Bourne was "fight [ing]" with the other
28

See Motion for New Trial, Docket Entry No. 176, pp. 1-2.

29

Id. at 2.

30

See MO&O, Docket Entry No. 61, p. 31.

See Defendants' Advisory to the Court Regarc:.ing Avail�bility
of Plaintiff's Witnesses for Trial, Docket Entry No. 157, pp. 2-3.
31

32

See Motion for New Trial, Docket Entry No. 176, pp. 6 7.
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correctional officers who entered his cell. 33 Noting that the video
showed that his cell was dark, Bourne argues that the statement
could have implicated the credibility of the other officers whose
testimony mirrored Ford's statement and was therefore excluded
improperly. 34
The defendants argue that the witness statement from Officer
Ford, as part of the TDCJ Use of Force Report about the incident, 35
was properly excluded as hearsay within hearsay. 36

Hearsay within

hearsay is inadmissible unless each part of the combined statements
conforms with an exception to the rule prohibiting hearsay.
Fed. R. Evid 803, 805.

See

The TDCJ Use of Force Report may have been

admissible under an exception to the hearsay rule as a public
record that sets forth factual findings from a legally authorized
investigation.

See Fed. R. Evid. 803(8)(A) (iii).

However, Bourne

does not show that the witness statement contained in that report
was admissible.

See, e.g., United States v. Dotson, 821 F.2d 1034,

1035 {5th Cir. 1987) {per curiam) {holding that a witness statement
within a police report was inadmissible and should have been
excluded as hearsay within hearsay).

33

34

See id. at 7.
See id.

See TDCJ Use of Force Report, Exhibit B to Defendants' MSJ,
Docket Entry No. 56-2, pp. 36 37.
35

36

See Defendants' Response, Docket Entry No. 179, pp. 5-6.
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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 17 of 21

Even assuming that the witness statement within the Use of
Force Report was admissible,

Bourne

ls to show how Officer

Ford's observation that Bourne was fighting with the officers who
entered his cell would have been helpful to his case.

Instead, the

statement appears to support the defendants' contention that Bourne
actively resisted the officers who entered his cell and that force
was necessary to restore order.

Under these circumstances, Bourne

does not show that the court erred by excluding Officer Ford's
witness statement or that he was harmed as a result.
4.

Testimony About Bourne's Injuries

Bourne contends that the court erred by limiting testimony
that he planned to present about the injuries he sustained during
the use of force. 37

Bourne argues that portions 0f his testimony

were improperly excluded as hearsay evidence when he

"simply

attempted to testify about what the doctors treating him at
Huntsville Memorial Hospital told him his injuries were, and how
they were caused. " 38
Bourne does not show that testimony about what a doctor told
him was excluded improperly as an out-of-court statement prohibited
by the hearsay rule.

Fed. R. Evid. 801(c).

He also does not

show that he was prejudiced as a result of the ruling.

The

defendants note that Bourne could have presented his own medical
Motion for New Trial, Docket Entry No. 176, pp. 7-8.
at 7.
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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 18 of 21

records as evidence of his injury. 39

Even without those records,

Bourne was able to give testimony that described the extent of his
injuries; and the jury had an opportunity to view the use-of-force
video, which showed the physical examination that he received in
the prison infirmary immediately following the incident.

Because

Bourne had an opportunity to present evidence in support of his
Eighth Amendment claim, he fails to show that he is entitled to a
new trial as a result of the court's decision to exclude this
testimony.
5.

Commissary Receipts

Bourne notes that he and the

two inmate witnesses who

testified told the jury that Sergeant Howard threw away items of
Bourne's property following the use of force. 40 Because Howard and
Major Applewhite denied that Bourne's property was discarded,
Bourne argues that the court erred by excluding evidence in the
form of commissary receipts,

which Bourne wanted to use for

purposes of impeaching their credibility. 41
that

Bourne argues further

the commissary receipts also would have shown Sergeant

Howard's "hostile motive" and intent to act maliciously during the
use of force. 42

39

See Defendants' Response, Docket Entry No. 179, p. 6.

40

See Motion for New Trial, Docket Entry No. 176, p. 8.

41

at 8-9.
at 9.
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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 19 of 21

Bourne has provided commissary receipts for a "Pot-Hot," an
alarm clock, a pair of work boots, a lamp, a fan, and other items,
but the receipts only prove that he purchased them at some point
before the use of force occurred. 43

The receipts do not prove that

he remained in possession of this property on November 21, 2014, or
that an officer

discarded

them

following

the use of force.

Therefore, Bourne does not demonstrate that the receipts were
relevant or that the court erred by excluding them.

Because Bourne

and his witnesses were allowed to testify that the items were
thrown away, Bourne has not otherwise shown that he was harmed as
a result of the court's decision to exclude the receipts.

As a

result, Bourne fails to show that any of the evidentiary rulings
were erroneous or that a new trial is required to prevent an
injustice.

c.

Appointment of Counsel

Bourne argues that the court erred and that he is entitled to
a new trial because he was denied appointment of counsel. 44

The

court denied Bourne's motion for appointment of counsel and his
request to reconsider that decision shortly before trial. 45

There

is no right to court-appointed counsel in civil cases.

See

See Commissary Receipts, Exhibit A to Moticn for New Trial,
Docket Entry No. 176-1, pp. 2-6.
43

44

See Motion for New Trial, Docket Entry No. 176, p. 1.

See Order dated June 3, 2019, Docket Entry No. 82, p. 3;
Order dated August 5, 2022, Docket Entry No. 148, pp. 4-5.
45

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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 20 of 21

Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). A district court is
not required to locate counsel for an indigent litigant unless a
case presents exceptional circumstances. See Naranjo v. Thompson,
809 F.3d 793, 803 (5th Cir. 2015).

In making that determination,

the Fifth Circuit has identified the following factors that a
district court should consider, including:
1.

the type and complexity of the case;

2.

ability
[plaintiff] 's
the
investigate his case;

3.

the presence of evidence which largely consists of
conflicting testimony so as to require skill in
presentation of evidence and in cross-examination;
and

4.

the likelihood that appointment will benefit the
[plaintiff], the court, and the defendants by
shortening the trial and assisting in just
determination.

to

present

and

Naranjo, 809 F.3d at 799 (quoting Parker v. Carpenter, 978 F.2d
190, 193 (5th Cir. 1992)).
The record reflects that Bourne has done a skillful job of
representing himself throughout this case.

His pleadings are

articulate and well researched, demonstrating familiarity with the
relevant law and procedures. He argued cogently and capably on his
own behalf during two pretrial conferences and at trial, where the
court

was

impressed

by his

knowledge of the

facts

and his

preparation. He presented his own testimony in an organized manner
and called two other inmates as witnesses.

He raised appropriate

objections and cross-examined the defendants and their witnesses.
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Case 4:16-cv-00515 Document 183 Filed on 02/09/23 in TXSD Page 21 of 21

The issue presented in this case was not factually or legally
complex, and there was no indication before or during trial that
Bourne was unable to present his version of the events without
assistance.

He does not indicate with specificity what else

trained counsel could have done if an attorney had been appointed
to represent him during the trial.

Although Bourne presents

evidence showing that he was prescribed a variety of medications
for a schizo-affective disorder, ADHD, bi-polar depression, and
obsessive compulsive disorder, 46 he did not appear to be laboring
under a mental illness or to be incapable of representing himself
at any point during the proceeding.

Therefore, he does not show

that a new trial is warranted for lack of appointed counsel or for
any other reason.
IV.

Conclusion and Order

Accordingly, it is ORDERED that the Plaintiff's Motion for New
Trial (Docket Entry No. 176) is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order Denying Motion for New Trial to the parties.
SIGNED at Houston, Texas, on this 9th day of February, 2023.

SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
EMR Medication Print Pass, Exhibit B tc Motion for New
Trial, Docket Entry No. 176-1, pp. 8-9; see also Plaintiff's
Declaration in Support of Motion for New Trial, Ex�1.ibit C to Motion
for New Trial, Docket Entry No. 176-1, pp. 14-15.
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