USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1799

NORBERTO ANDRADE,
Plaintiff, Appellant,
v.
JOHN J. MORAN, ETC., ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
___________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
___________________
Norberto Andrade on brief pro se.
________________
David J. Gentile, Senior Legal

Counsel,

Department

of

__________________
Corrections, on Memorandum
Disposition for appellees.

in Support

of

Motion

for Summary

__________________
January 13, 1994
__________________

Per Curiam.
__________
action

pursuant to

42

Island correctional
restrain

him and

violation of the
of

three of

resulting

in

Plaintiff Norberto Andrade

U.S.C.

personnel

1983
had used

had provided

the

five

verdicts

favor

of

Rhode

excessive force
medical care

Following

defendants, a
in

claiming that

inadequate

Eighth Amendment.

filed an

jury
the

to
in

the dismissal
trial was
remaining

held
two

defendants.
1.

The

district

proceed in forma pauperis.

__________________
should

have granted

his

court permitted
Plaintiff argues

request

for

the

plaintiff
that it
appointment

to
also
of

counsel.

Counsel

in

civil

"exceptional circumstances."
15, 23 (1st Cir. 1991).

cases

are appointed

DesRosiers
__________

only

v. Moran, 949
_____

in
F.2d

In determining whether a party

has

met this standard, "a court must examine the total situation,
focusing,

inter alia,
___________

on

the

merits

of

the

case,

the

complexity of the legal issues, and the litigant's ability to

represent himself."

Id. at 24.
__

Further, on

the record,

reverse the

district court's

"only if

we will

the record, taken

our review of

as a whole, reflects

abuse of the trial court's broad discretion."

Although

there is

support

decision
a manifest

Id.
__

for plaintiff's

claim

that he is illiterate, this same evidence -- a psychologist's

evaluation
terms

of

-- describes plaintiff
his

mental

as bright, alert

functioning,

able

to

and, in

"deliver

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reasonable stream of clear ideas that were pertinent and well

connected to the subjects being

discussed."

Thus, we do not

believe that

plaintiff's

significantly

hampered

complaint
day and

ability to
by

his

represent himself

illiteracy.

was

Further, his

concerned events that had occurred during a single

the applicable

Eighth Amendment

particularly complicated.
discretion

standards are

As a result, we find

in the district

not

no abuse of

court's decision not

to appoint

counsel to represent plaintiff.

2.

As far as we can determine, plaintiff's second

argument on appeal
as to exactly
incident
testimony
(plaintiff

concerns the sufficiency of

how he received a

in question.
of

one

was

of

charged

the evidence

cut on his head

during the

Specifically, plaintiff refers to the

the

defendants

with assault

at

the state

upon

correctional

officer on the basis of the events giving rise to this

action).
trial

defendant

1983

According to plaintiff, this defendant at the state

testified

received

trial

that

he did

the laceration on
at the

not

know

his head.

district court

trial

how plaintiff

had

Apparently, the same

gave a

conflicting

account of how plaintiff's injury occurred.

Without a transcript of either the state or federal
court trials, it is not possible for us to review this claim.
Fed. R. App. P. 10(b)(2) provides:
If the plaintiff intends to urge on
appeal that a finding or conclusion is
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unsupported
by the
evidence or
is
contrary to the evidence, the plaintiff
shall include in the record a transcript
of all evidence relevant to such finding
or conclusion.
As for
the

the district court

plaintiff

to

proceedings, "[t]he burden

provide

this

court

with

sufficient to support [his] points on appeal."

v.

One Motor Yacht, 527

________________

(appendix

did

not

district court).
factually

F.2d

include

"Where

1112, 1113

transcript

an

is on

appendix

United States
_____________

(1st Cir.

1975)

hearing

before

of

a plaintiff raises issues

that are

dependant yet fails to provide a transcript of the

pertinent proceedings in the district court, this circuit has

repeatedly held
Muniz Ramirez
_____________

that we

1060, 1068

transcript,

review the

allegations."

v. Puerto Rico Fire Services, 757

__________________________

1358 (1st Cir. 1985).

1057,

will not

See also Fisher v. Krajewski, 873 F.2d

________ ______
_________

(7th Cir.

it is not

the bench and the court

F.2d 1357,

1989)

(in the

possible to review

absence of

the

rulings made from

"will not render a judicial decision

founded on speculation"), cert. denied, 493 U.S. 1020 (1990).

____________
We are

aware of

plaintiff's

indigent status

and

that he filed, in the district court, a request for the trial

transcript under 28 U.S.C.

government

753(f) (A transcript paid for by

is available only

if the trial

judge "certifies

that the appeal is not frivolous (but presents

question).").
finding

a substantial

The district court denied plaintiff's request,

that

plaintiff

wanted

the

entire

transcript

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essentially
evidence

for the

on appeal.

fair opportunity"

purpose of

having

Because he had

a "retrial"

of the

already had a "full and

to present all of his

evidence before the

jury, the court determined that his appeal failed to assert a

substantial question of law.
Indigence, however, does
the burden

to produce

not relieve plaintiff

the transcript

See Richardson v. Henry, 902

___ __________
_____

under Rule

of

10(b)(2).

F.2d 414, 416 (5th Cir.) (court

would dismiss pro se appeal concerning his sufficiency of the

evidence claim

despite

plaintiff's inability

transcript), cert. denied, 498

_____________
Computax

Corp.,

631

F.2d

U.S. 901

139,

142-43

to

afford

(1990); Thomas
______
(9th

Cir.

a
v.

1980)

________________
(inability to pay

for transcript does make

within the

meaning of Rule

prepare

statement

of

it "unavailable"

10(c) which allows

evidence

based

on

plaintiff to
his

or

her

recollection; court dismissed appeal).

Plaintiff

has

transcript in this

not

renewed

court nor

court's denial under

has he

753(f).

his

request

appealed the

for

district

In any event, the fact that a

witness gave inconsistent testimony at a prior trial does not

itself

raise

substantial

question.

Credibility

determinations are solely reserved for the jury.

v. United States, 315 U.S. 60, 80 (1942).
_____________
plaintiff's claim

at face

value, there is

See Glasser
___ _______

Thus, even

taking

no merit

to the

appeal.

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The judgment of the district court is affirmed.

________

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