* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 6 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RALPH C. DUKE, Plaintiff-Appellant,

v. KATHLEEN M. HAWK, Director, Federal Bureau of Prisons, officially and individually; PATRICK WHALEN, Warden, U.S. Penitentiary, Florence, Colorado, officially and individually; MR. GREGCO, Assistant Warden, U.S. Penitentiary, Florence, Colorado, officially and individually; CAPTAIN HINES, U.S. Penitentiary, Florence, Colorado, officially, and John Does #1-25, U.S. Penitentiary, Florence, Colorado (individually and officially), et. al., Defendants-Appellees. No. 96-1503 (D.C. No. 96-S-1268) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Ralph C. Duke is a federal inmate serving a sentence of life imprisonment at the United States Penitentiary at L ewisburg, Pennsylvania. In April 1996, Mr. Duke filed a pro se civil rights complaint pursuant to 28 U.S.C. §§ 1331, 1332(a)(1), 1346(b) (1994), and 42 U.S.C. § 1985 (1994). In an amended complaint filed in May 1996, Mr. Duke asserted the following additional authority for his lawsuit: (1) the Fifth Amendment ; (2) the Eighth Amendment; (3) the Fourteenth Amendment; (4) 28 U.S.C. § 1361 (1994); and (5) 28 U.S.C. §§ 2201-2202 (1994). Contemporaneous with the fili ng of his original complaint, Mr. Duke filed a motion for appointment of counsel pursuant to 28 U.S.C. § 1915 (1994 & Supp. 1997).

Mr. Duke named as defendants in the amended complai nt the director of the federal bureau of prisons, the warden of the United States Penitentiary at Florence, Colorado, and other federal officials. M r. Duke alleged that while he-3-

was an inmate at the United States Penitentiary in Florence, Colorado, he was assaulted and cut down the right side of his face. Mr. Duke claimed that after he was cut, he called for help but did not receive any immediate assistance because no guards were present. According to Mr. Duke, the prison was grossly understaffed on the day he was assaulted and the gr oss negligence of the prison authorities was the "sole main cause of [his] [i]nj ury." Mr. Duke sought compensatory damages in the amount of $25,000 per d efendant, punitive damages in the amount of $100,000 per defendant, and declar atory relief.

On June 13, 1996, the district court ordered Mr. Du ke to file a more definite statement alleging whether he had exhauste d administrative remedies pursuant to the Bureau of Prisons Administrative Re medy Program, see 28 C.F.R. §§ 542.10-542.19 (1996), and pursuant to the Federa l Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994). Mr. Duke responded to the cou rt's order for a more definite statement, alleging he was not required to exhaust administrative remedies because he only sought monetary damages.

On October 1, 1996, the district court entered an o rder denying Mr. Duke's motion for appointment of counsel and dismissing Mr . Duke's amended complaint. The court dismissed Mr. Duke's claim pu rsuant to the Federal Tort-4-

Claims Act for failure to exhaust administrative re medies. The court dismissed Mr. Duke's remaining claims pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous and for failure to state a claim upon whi ch relief may be granted. Specifically, the district court determined: (1) M r. Duke improperly asserted jurisdiction under 28 U.S.C. § 1332(a)(1) and 28 U. S.C. § 1361; (2) Mr. Duke's claim for declaratory relief was improper because M r. Duke alleged the defendants had already violated his rights and beca use Mr. Duke had other adequate remedies for his claims; (3) Mr. Duke fail ed to allege facts sufficient to state a claim under 42 U.S.C. § 1985; (4) Mr. Duke' s claims under the Fifth and Fourteenth Amendments were subsumed into Mr. Duke's Eighth Amendment claim; and (5) Mr. Duke's Eighth Amendment claim fa iled because Mr. Duke did not allege the defendants acted with deliberate ind ifference.

II. ANALYSIS On appeal, Mr. Duke complains the district court fa iled to provide him with adequate and effective access to petition the courtfor redress. Specifically, Mr. Duke contends the court erred by failing to appointcounsel for him, by failing to inform him of the deficiencies in his complaint, an d by failing to provide him with an opportunity to amend his complaint.-5-

We first review Mr. Duke's complaint the trial court erred by failing to appoint counsel. It is well settled there is no co nstitutional right to counsel in civil cases. Durre v. Dempsey , 869 F.2d 543, 547 (10th Cir. 1989). Pursuant to 28 U.S.C. § 1915(e)(1), the district court "may req uest an attorney to represent any person unable to afford counsel." However, the district court has broad discretion to appoint counsel and "'its denial of c ounsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights.'" Long v. Shillinger , 927 F.2d 525, 527 (10th Cir. 1991) (quoting Maclin v. Freake , 650 F.2d 885, 886 (7th Cir. 1981)). In determini ng whether to appoint counsel pursuant to § 1915, the court should consid er all relevant factors, including the merits of the plaintiff's claims, the nature of the factual issues raised in the claims, the plaintiff's ability to present h is claims, and the complexity of the legal issues raised by the claims. Id. Having thoroughly reviewed the entire record in the present case, including Mr. Duke's co mplaint, we conclude the district court did not abuse its discretion in deny ing Mr. Duke appointed counsel.

We now turn to Mr. Duke's contention the trial court erred by failing to inform Mr. Duke of the deficiencies in his complain t and provide him with an opportunity to amend his complaint. In its October1991 order of dismissal, the district court adequately informed Mr. Duke of the deficiencies in his complaint.1 To the extent Mr. Duke contends the district court erred by failing to

liberally construe his complaint, we find this cont ention lacks merit.

-6- Although the court did not provide Mr. Duke with anopportunity to amend his complaint, Mr. Duke never sought leave to amend his complaint from the trial court. Thus, Mr. Duke's claim that the district co urt erred in failing to allow him to amend his complaint raises an issue with this co urt that was not raised before the district court. As a general rule, this court will not consider an issue on appeal that was not presented to the district court

. Walker v. Mathers (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Because we a re aware of no good reason to depart from the general rule in the case at bar, we decline to review Mr. Duke's claim the district court erred in failing to permit him to amend his complaint. 1

IV. CONCLUSION Based upon the foregoing reasons, we affirm the Oct ober 1, 1996 order of the district court. Mr. Duke's appeal is hereby de nied and dismissed.

Entered for the Court

WADE BRORBY United States Circuit Judge