TABOR v. COLEMAN (2021)

United States Court of Appeals, Fifth Circuit.2021-08-02No. No. 20-30627

Summary · law.co

Holding. The district court's judgment was affirmed. The court found no abuse of discretion in the discovery rulings, no error in declining to appoint counsel, and determined that Tabor waived his challenges to the summary judgment and earlier dismissals by failing to brief them on appeal.

Tony Tabor, a Louisiana inmate, filed a civil rights suit against prison official Vincent Coleman alleging excessive force and other claims. The district court dismissed some claims as legally insufficient or duplicative of claims in another case, and granted Coleman summary judgment on the excessive force allegation regarding chemical spray. Tabor appealed, raising issues about the court's handling of discovery requests and other procedural matters.

On appeal, Tabor challenged the district court's failure to compel production of camera footage and responses to interrogatories, and argued that counsel should have been appointed to him. The appellate court found no abuse of discretion regarding the camera footage request, since the discovery deadline had already passed. Similarly, because Tabor never filed a motion to compel responses to interrogatories in the lower court, the district court did not err by not acting on its own initiative. The court also rejected the request for appointed counsel, finding no exceptional circumstances warranted such an appointment.

Tabor did not meaningfully contest the summary judgment ruling or the earlier dismissals in his appellate brief, effectively abandoning those challenges. The court also rejected an underdeveloped claim under the Americans with Disabilities Act based on a mere passing reference without supporting facts.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether district court abused discretion in denying motion to compel camera footage after discovery deadline expired
Whether district court was required to sua sponte compel interrogatory responses absent a motion to compel
Whether civil rights plaintiff was entitled to appointed counsel absent exceptional circumstances
Whether underdeveloped Americans with Disabilities Act claim was properly raised

Procedural posture

Tabor appealed the district court's dismissal of certain claims, grant of summary judgment on his excessive force claim, and denial of various discovery and procedural motions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Tony Joseph Tabor, Louisiana prisoner # 478277, filed a civil rights complaint against three prison officials, including Vincent Coleman. In an amended complaint, Tabor dismissed the other two defendants. He asserted a variety of claims against Coleman. The district court dismissed some of Tabors claims for failure to state a claim, and it dismissed other claims because they were duplicative of claims Tabor was pursuing in a separate pending civil action.

The claim that Coleman used excessive force when he sprayed Tabor with a chemical agent was the subject of summary judgment motions filed by both parties. The district court denied Tabors summary judgment motion, but it granted summary judgment in favor of Coleman on the excessive force claim. Tabor timely appealed.

In his pro se brief, which we liberally construe, see Morrow v. FBI, 2 F.3d 642, 643 n.2 (5th Cir. 1993), Tabor raises several issues. He asserts that the district court “neglected” to order the production of the camera footage of the incident in which Coleman sprayed him with a chemical agent. We construe Tabors brief as raising a challenge to the denial of his motion to compel production of the camera footage, a decision we review for abuse of discretion. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir. 2004). “The standard of review poses a high bar; a district courts discretion in discovery matters will not be disturbed ordinarily unless there are unusual circumstances showing a clear abuse.” Marathon Fin. Ins., Inc., RRG v. Ford Motor Co., 591 F.3d 458, 469 (5th Cir. 2009) (internal quotation marks omitted).

As the magistrate judge observed in her report, which the district court determined was correct, the discovery period had expired before Coleman moved to compel production of the camera footage. Tabor has therefore not shown an abuse of discretion. See Brand Servs., L.L.C. v. Irex Corp., 909 F.3d 151, 156 (5th Cir. 2018).

Tabor also complains that the district court failed to issue an order compelling a response to his interrogatories. Here, although Tabor filed in the district court a set of interrogatories seemingly also sent to defense counsel, he did not move in the district court to compel a response to his interrogatories. Absent “unusual circumstances,” a district court does not abuse its discretion by not ordering discovery sua sponte. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 545 (5th Cir. 2005). Because Tabor has pointed to no “unusual circumstances,” he has not shown an abuse of discretion. See id.

Next, Tabor argues that the district court should have appointed counsel to represent him. “A civil rights complainant has no right to the automatic appointment of counsel.” Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Because the instant case did not present “exceptional circumstances,” the district court did not err in failing to appoint counsel. See id.

Because Tabor does not brief a challenge to the district courts summary judgment rulings on his excessive force claim, and likewise he does not brief any challenge to the district courts earlier dismissal of his other claims for failure to state a claim and as duplicative, he has waived any challenge to the dispositions of these claims. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). To the extent that Tabor argues that the district court erred by failing to address a claim under the Americans with Disabilities Act, his contention fails, as the passing reference to “the A.D.A.” in his amended complaint, unaccompanied by factual allegations that would support a claim under the Americans with Disabilities Act, was insufficient to raise such a claim.

In view of the foregoing, the judgment of the district court is AFFIRMED. Tabors motion for the appointment of counsel is DENIED. His motion for a temporary restraining order and a preliminary injunction is also DENIED.

FOOTNOTES

FOOTNOTE

Per Curiam:*

FN* Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.