* Pursuant to Local 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-10172

(Summary Calendar)

_________________

VICTOR L BROWN,

Plaintiff-Appellant,

versus

RONALD D DREWRY, Head Warden, French Robertson

Unit; ALL CO III OFFICERS, French Robertson

Unit,

Defendants

and

LARRY O GOBER, CO III Officer; MARK BROWN, CO

III Officer; DAVID GRAVES, CO III Officer

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

(1:94-CV-47-BA)

November 14, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Victor Brown, a state prisoner proceeding pro se and in forma
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pauperis, appeals the trial court’s denial of two motions for

appointed counsel and several evidentiary rulings. We affirm.

I

Victor Brown filed a lawsuit alleging violation of 42 U.S.C.

§ 1983 by the warden of the French Robertson Unit of the Texas

Department of Criminal Justice-Institutional Division (“TDCJ-ID”)

and by three facility officers. Brown alleged that the defendants

violated his Eighth Amendment right to be free from cruel and

unusual punishment when they subjected him to an excessive use of

force. 

Brown asserted that Officers Brown and Graves attacked him

while escorting him to recreation. Brown alleged that Officer

Graves threw him to the ground while he was handcuffed, punched him

about the face and head, and kicked him in the face, head, back,

ribs and legs. Brown asserted that Officer Brown also struck him

and kicked him in the face. He alleged that Officer Gober then

arrived and kicked him in the ribs and back. Brown contended that

the beating continued until another officer arrived with a video

camera. The officers then escorted Brown to the infirmary where he

was examined and treated for cuts and bruises, and then returned

him to his cell. While Brown alleged that he did not provoke the

attack, he was apparently found guilty of assaulting Officer Graves

and lost privileges.

The jury returned a verdict in favor of the defendants and the
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trial court entered final judgment. Brown appeals.

II

Brown first challenges the trial court’s denials of his two

motions for appointed counsel. We review a district court ruling

on a request for appointed counsel under the abuse of discretion

standard. Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th

Cir. 1986). 

The trial court is not required to appoint counsel for an

indigent plaintiff asserting a claim under § 1983 unless the case

presents exceptional circumstances. Ulmer v. Chancellor, 691 F.2d

209, 212 (5th Cir. 1982). Although no comprehensive definition of

exceptional circumstances is practical, a number of factors should

be considered in ruling on requests for appointed counsel. Id. at

213. These include: (1) the type and complexity of the case; (2)

whether the indigent is capable of adequately presenting his case;

(3) whether the indigent is in a position to investigate the case

adequately; and (4) whether the evidence will consist in large part

of conflicting testimony so as to require skill in the presentation

of evidence and in cross examination. Id.

Here, in considering Brown’s first motion for appointed

counsel, the trial court applied the four Ulmer factors and found

that Brown’s case did not present exceptional circumstances

requiring appointed counsel. The court also found that Brown

demonstrated the ability to present his case adequately and to
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conduct investigation. 

In considering Brown’s second motion for appointed counsel,

the trial court again enumerated the four Ulmer factors and

concluded that Brown’s motion was premature. Consequently, the

court denied Brown’s second motion “without prejudice to a later

application for appointment of counsel.” Brown did not file

another application.

Brown’s pleadings demonstrate that he is literate, and the

record demonstrates that he was capable of presenting evidence and

argument at trial. In addition, Brown’s action relied solely on

factual issues that he could investigate and present to the court

on his own. See Feist v. Jefferson County Comm’r’s Ct., 778 F.2d

250, 253 (5th Cir. 1985) (“Since this was a straight-forward factintensive case, Feist was not required to have any legal skills or

training in order to adequately inform the court of his

allegations, and we therefore find that the district court did not

err in refusing to appoint counsel.”). As a result, we find that

the trial court did not abuse its discretion in denying Brown’s two

motions for appointed counsel. 

III

Brown also raises several evidentiary issues on appeal.

Because he did not raise these issues in the district court, they

are barred here unless they involve plain error. Snyder v.

Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988). To prevail
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with these new arguments Brown must show: (1) that an error

occurred; (2) that the error was plain, which means clear or

obvious; (3) that the plain error affected substantial rights; and

(4) that not correcting the error would seriously affect the

fairness, integrity or public reputation of judicial proceedings.

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc) (citing United States v. Olano, 507 U.S. 725, 113 S. Ct.

1770, 123 L. Ed. 2d 508 (1993)), cert. denied, ___ U.S. ___, 115 S.

Ct. 1266, 131 L. Ed. 2d 145 (1995); see also Highlands Ins. Co. v.

National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir. 1994)

(applying same standard in civil case), cert. denied, ___ U.S. ___,

115 S. Ct. 903, 130 L. Ed. 2d 786 (1995). These requirements

augment our long-standing rule that reversal for plain error is

“not a run-of-the-mill remedy” and will occur “only in exceptional

circumstances to avoid a miscarriage of justice.” Highlands Ins.

Co., 27 F.3d at 1032.

Brown first argues that the trial court erred in permitting

the trial to proceed after discovering that some of Brown’s

exhibits had not been received by the court. At trial, Brown

stated that he had mailed various exhibits to the court. The court

responded that it had not received the documents. The court did

not commit plain error in continuing with the trial under these

circumstances.

Brown next contends that the defendants failed to disclose to
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him that Warden Charles Bell would testify at trial, and that when

the court permitted the warden to testify, it deprived him of

adequate and meaningful access to the courts. Brown’s contention

is without merit because the witness list the defendants filed with

the court and served upon Brown states that Warden Bell would

testify at trial. Thus, the trial court did not commit plain error

in permitting Warden Bell to testify.

Brown next argues that the trial court erred in failing to

ensure the appearance of Brown’s witness James E. Lee. The trial

court’s pretrial order instructed the parties to submit witness

lists to the court. Brown did not; rather, he filed a petition for

writ of habeas corpus ad testificandum for James Lee. The petition

stated that Lee would testify that he observed Officer Gober

loitering near the scene of the alleged beating and that he heard

“heavy rumbling” and Brown screaming. The trial court apparently

never ruled on Brown’s petition.

However, Brown has not demonstrated how the trial court’s

failure to ensure Lee’s appearance constitutes an exceptional

circumstance requiring reversal to avoid a miscarriage of justice.

Lee’s prospective testimony is substantially consistent with

testimony provided by the defendants. The trial court did not

commit plain error in failing to ensure Lee’s appearance.

Brown’s final argument is that the district court improperly

failed to hold a hearing before trial regarding the admission of
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Brown’s “criminal and disciplinary conviction.” Brown presents no

further argument or explanation regarding this issue; his bare

allegation cannot support a finding of plain error. 

AFFIRMED.