Slavin v. Curry

Decision Date01 November 1982
Docket NumberNo. 82-1094,82-1094
Citation690 F.2d 446
PartiesFrank SLAVIN, Petitioner-Appellant, v. Tim CURRY, District Attorney, et al., Respondents-Appellees. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Frank Slavin, pro se.

John Wm. Payne, Dallas, Tex., for Evans.

Fred Schattman, Asst. Dist. Atty., Fort Worth, Tex., Ann C. Snell, Asst. Atty. Gen., Austin, Tex., for Curry, et al.

Roswald E. Shrull, Fort Worth, Tex., for Ernest Kohl.

Barry G. Johnson, Fort Worth, Tex., for Brantley Pringle.

Jerry L. Zunker, Austin, Tex., for Wessler and Holman and Shannon.

Henry E. Kerry, Fort Worth, Tex., Johnny Jones and Arlene Evans.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

JOHNSON, Circuit Judge:

Petitioner, Frank Slavin, appeals a judgment rendered in favor of the defendants in an action initiated by Slavin pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. In his pro se brief, Slavin raises three grounds for appeal. Initially, Slavin contends that the district court erred in denying his request for court-appointed counsel. Second, Slavin maintains that the district court erred in denying his motion for new trial based upon his post-trial polygraph test, and, third, Slavin argues that the jury's finding that his trial transcript had not been altered is not supported by the evidence. This Court, concluding that the issues raised on appeal are without merit, affirms the judgment of the district court.

In 1976, Slavin filed a pro se complaint alleging that twenty persons had conspired and acted to deprive him of rights guaranteed by the United States Constitution, in violation of 42 U.S.C. §§ 1983, 1985, 1986. The defendants, which include Tim Curry, District Attorney, Tarrant County, Texas, and several members of his staff, filed a motion to dismiss raising several reasons, among them, failure to state a claim, immunity, and limitations. The district court granted dismissals or summary judgments as to all defendants without a hearing. On appeal, this Court vacated portions of the district court's final order and remanded the case for a hearing. Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978), PP 18 and 19 vacated, 583 F.2d 779 (5th Cir. 1979).

Upon remand, a six day jury trial was conducted in which 42 witnesses were subpoenaed at Slavin's request. In response to interrogatories, the jury concluded that none of the defendants had entered into an overall conspiracy to deprive Slavin of his constitutional rights, that Slavin's trial transcript was not altered, and that Slavin's suit was frivolous and brought in bad faith. The district court rendered judgment in favor of all defendants and awarded attorney's fees to the defendants in the amount of $47,157.15.

Initially, Slavin contends that the district court erred in denying his pre-trial request for court-appointed counsel pursuant to 28 U.S.C. § 1915(d). In Hardwick v. Ault, this Court held that "generally speaking no right to counsel exists in § 1983 cases." Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975). However, this Court has also recognized that the "no right" language in Hardwick is subject to limitation when exceptional circumstances exist. Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980); Wright v. Dallas County Sheriff Department, 660 F.2d 623 (5th Cir. 1981). Although no comprehensive definition of exceptional circumstances is practical, Branch v. Cole, 686 F.2d 264 (5th Cir. 1962), this Court has indicated that exceptional circumstances may exist in exceedingly complex cases or in cases in which the plaintiff is unable to actively investigate and pursue the claim being asserted. 1 See Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980); Wright v. Dallas County Sheriff Department, 660 F.2d 623 (5th Cir. 1981); and Shields v. Jackson, 570 F.2d 284 (8th Cir. 1978).

Clearly, what may constitute exceptional circumstances depends upon the facts in each case. Consequently, the decision whether to appoint counsel properly lies within the sound discretion of the district court. In the present case, this Court is unable to conclude that the district court abused its discretion in refusing to appoint counsel. Unlike the § 1983 plaintiff's in Wright and Knighton, Slavin was free from incarceration for two full years prior to the trial in this case, and, therefore, was able to investigate and pursue his claim. Moreover, the portion of the record presented on appeal does not demonstrate that Slavin is indigent as required by 28 U.S.C. § 1915(d). In fact, in the instant case, this Court refused to allow Slavin to proceed in forma pauperis after the district court concluded that Slavin was able to pay for part of the costs of appeal. Hence, the district court did not err in refusing to appoint counsel for Slavin.

In his second issue before this Court, Slavin contends that the trial court erred in denying his motion for a new trial based upon his post-trial polygraph test. Slavin maintains that the district court should have granted the motion for new trial since his post-trial polygraph test indicated that certain defendants perjured themselves at trial. The district court denied the motion for new trial on the grounds that Slavin could have tested the credibility of the defendants either by calling or cross-examining them at trial. This Court holds that the district court did not abuse its discretion in denying Slavin's motion for new trial.

This Court, in reviewing a trial Court's denial of a motion for new trial, must determine whether the trial court has abused its discretion. Hanley v. Condrey, 467 F.2d 697 (5th Cir. 1972). Moreover, in reviewing a motion for new trial based upon allegations that witnesses gave perjured testimony, this Court has held that it is significant that a movant had the opportunity to impeach the testimony of the witnesses and present the jury with evidence demonstrating the truth or...

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10 cases
  • Robbins v. Maggio
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 14 Enero 1985
    ...The "no right" language of Hardwick, however, "is subject to limitation when exceptional circumstances exist." Slavin v. Curry, 690 F.2d 446, 448 (5th Cir.1982). As this is gauged by "the type and complexity of the case, and the abilities of the individuals bringing it," Branch v. Cole, 686......
  • Conan Properties, Inc. v. Conans Pizza, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 4 Febrero 1985
    ...the court of appeals determines that reasonable persons might reach a contrary result, the jury verdict must be upheld. Slavin v. Curry, 690 F.2d 446, 449 (5th Cir.1982); United States v. 6,162.78 Acres of Land, 680 F.2d 396, 398 (5th Cir.1982). Our task, therefore, is limited to determinin......
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    • U.S. Court of Appeals — Fifth Circuit
    • 31 Mayo 1983
    ...Bienvenu. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir.1982); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982); Slavin v. Curry, 690 F.2d 446, 448 (5th Cir.1982); see 28 U.S.C. § ...
  • Green v. Maraio
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    ... ... Slavin v. Curry, 574 F.2d 1256, 1265-66 (5th Cir.), petition for reh'g en banc denied, 583 F.2d 779 (5th Cir.1978), aff'd after remand to the district ... ...
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