767 F.2d 1426 (9th Cir. 1985), 83-2180, Nicholson v. Rushen

Docket Nº:83-2180.
Citation:767 F.2d 1426
Party Name:Rev. Kinnith R. NICHOLSON, Plaintiff-Appellant, v. Ruth L. RUSHEN, et al., Defendants-Appellees.
Case Date:August 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1426

767 F.2d 1426 (9th Cir. 1985)

Rev. Kinnith R. NICHOLSON, Plaintiff-Appellant,


Ruth L. RUSHEN, et al., Defendants-Appellees.

No. 83-2180.

United States Court of Appeals, Ninth Circuit

August 9, 1985

Submitted June 20, 1985 *

As Amended Sept. 30, 1985.

Rev. Kinnith R. Nicholson, pro se.

William B. Mayfield, San Jose, Cal., for defendants-appellees.

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

Before WALLACE, SKOPIL and FLETCHER, Circuit Judges.


Nicholson appeals a judgment on a jury verdict in favor of defendants on his Sec. 1983 claim. We affirm.

Nicholson brought suit claiming that two San Jose policemen used excessive and unreasonable force in arresting him and escorting him from a hospital to their police car. He contends on appeal that certain witnesses lied, that his court-appointed counsel was ineffective, and that the magistrate improperly excluded tape-recorded

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testimony of a witness who died before trial.

First, Nicholson's assertions that witnesses committed perjury do not entitle him to a new trial. Nicholson makes no claim of circumstances that were not before the jury. The credibility of witnesses and the weight of the evidence are issues for the jury and are not subject to appellate review. United States v. Rodriguez, 546 F.2d 302, 306 (9th Cir.1976); United States v. Hopkins, 486 F.2d 360, 362 (9th Cir.1973).

Nicholson's claim of ineffective assistance of counsel is similarly unavailing. Generally, a plaintiff in a civil case has no right to effective assistance of counsel. See Wolfolk v. Rivera, 729 F.2d 1114, 1119-20 (7th Cir.1984); Mekdeci v. Merrell National Laboratories, 711 F.2d 1510, 1522-23 (11th Cir. 1983); Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir. 1980); Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980). This rule is based on the presumption that, unless the indigent litigant may lose his physical liberty if he loses the litigation, there is generally no right to counsel in a civil case. See Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Although under certain circumstances due process concerns may rebut the presumption against the necessity of appointed counsel and consequently may give rise to a right to the effective assistance of such counsel...

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