UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-6509

ARTHUR TAYLOR, JR.,

Plaintiff – Appellant,

v.

PULLIAM, Correctional Officer; S. FULLER,

Defendants – Appellees,

and

DEPARTMENT OF CORRECTIONS; HENDERSON, Correctional Officer; 

DR. WANG; C. MAYES; C. A. MANIS; SPECIAL AGENT CRAIG 

O’DER; MAJOR THOMAS MEYER; PATRICIA JONES, R.N.; BARRY 

CRANE; JOHN DOE, The Medical Administrator of Green Rock,

Defendants.

Appeal from the United States District Court for the Western 

District of Virginia, at Roanoke. Jackson L. Kiser, Senior

District Judge. (7:14-cv-00641-JLK-RSB)

Submitted: December 2, 2016 Decided: February 10, 2017

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.
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Arthur Taylor, Jr., Appellant Pro Se. Margaret Hoehl O’Shea, 

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, 

for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Arthur Taylor, Jr., appeals the district court’s orders 

dismissing in part his complaint, granting in part Defendants’ 

motion for summary judgment, and entering judgment in favor of 

Defendants David Pulliam and Stephen Fuller (“Trial Defendants”)

following a jury verdict in their favor. Taylor filed suit 

against Trial Defendants and others pursuant to 42 U.S.C. § 1983 

(2012), alleging excessive use of force, denial of meaningful 

medical care, assault and battery, and denial of protections 

under the Americans with Disabilities Act and the Rehabilitation 

Act. All claims and Defendants were dismissed prior to trial, 

with the exception of Taylor’s claim against Trial Defendants 

for excessive use of force in violation of the Eighth Amendment.

Giving liberal interpretation to Taylor’s informal brief, 

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), Taylor 

argues that his civil rights were violated by various 

Defendants, and he argues that the jury’s verdict was against 

the weight of the evidence. Taylor also argues that his Sixth 

Amendment and Due Process Clause rights were violated by the 

district court’s refusal to appoint counsel. Finally, Taylor 

contends that the district court erred in refusing to allow him 

to (1) present photographic evidence of his injuries, and 

(2) have witnesses testify at trial. 
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As to Taylor’s first argument, he alleges no specific error 

in the district court’s determination that several of his claims 

were insufficient to survive summary dismissal or a motion for 

summary judgment, and that Taylor’s claim against Doctor 

Lawrence Wang should be dismissed for failure to prosecute. 

Having failed to allege any error in the district court’s 

substantive conclusions, Taylor has waived review of those 

determinations. See 4th Cir. R. 34(b); Wahi v. Charleston Area 

Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009). 

Furthermore, to the extent that Taylor seeks to challenge the 

jury’s verdict as being against the weight of the evidence, he 

failed to file a postjudgment motion pursuant to Federal Rule of 

Civil Procedure 50 or 59(a)* within 28 days of the judgment. 

Accordingly, Taylor’s challenge to the jury’s verdict is 

foreclosed. Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 

153-60 (4th Cir. 2012).

Regarding Taylor’s argument that his Due Process Clause and 

Sixth Amendment rights were violated by the district court’s 

denial of his motion to appoint counsel, civil litigants have no 

constitutional right to counsel, and a district court’s refusal 

 * Under Rule 59(a), “the district court must set aside the 

verdict and grant a new trial if . . . the verdict is against 

the clear weight of the evidence.” Minter v. Wells Fargo Bank, 

N.A., 762 F.3d 339, 346 (4th Cir. 2014) (internal quotation 

marks and brackets omitted).
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to appoint counsel is reviewed only for abuse of discretion. 

See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), 

abrogated on other grounds by Mallard v. U.S. Dist. Court for 

the S. Dist. of Iowa, 490 U.S. 296 (1989). A district court 

should appoint counsel if “a pro se litigant has a colorable 

claim but lacks the capacity to present it.” Id. The record 

establishes that Taylor was capable of adequately presenting his 

claims, and we therefore conclude that the district court did 

not abuse its discretion in denying his motion to appoint 

counsel.

Finally, Taylor argues that the district court erred by not 

allowing him to present photos or witnesses to the jury. At 

trial, Taylor attempted to introduce photos of his injuries to 

the jury, but the district court excluded the photos on the 

ground that Taylor failed to disclose the evidence prior to 

trial. The court likewise informed Taylor that he could not 

present witnesses because he failed to present a witness list 

prior to trial. 

“We review for an abuse of discretion both the district 

court’s finding of a disclosure violation and its decision to 

exclude evidence as a discovery sanction.” Russell v. Absolute 

Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014).

Pursuant to Federal Rule of Civil Procedure 37, a 

party who fails to comply with the disclosure 

requirements of Rule 26(a) . . . is not allowed to use 
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that information or witness to supply evidence on a 

motion, at a hearing, or at a trial, unless the 

failure was substantially justified or is harmless.

Id. (internal quotation marks and ellipses omitted). In 

determining whether evidence should nevertheless be admitted, 

courts consider the following five factors:

(1) the surprise to the party against whom the 

evidence would be offered; (2) the ability of that 

party to cure the surprise; (3) the extent to which 

allowing the evidence would disrupt the trial; (4) the 

importance of the evidence; and (5) the nondisclosing 

party’s explanation for its failure to disclose the 

evidence

Id. at 396-97. 

After thoroughly reviewing the record, we conclude that the 

five factors weigh in favor of excluding any witness testimony 

that Taylor intended to present.

In contrast, although the five factors may have weighed in 

favor of admitting Taylor’s photographic evidence, we find that 

the court’s decision to exclude the photographs constitutes 

harmless error. See Bank of Montreal v. Signet Bank, 193 F.3d 

818, 834 (4th Cir. 1999) (applying harmless error analysis to 

decision to exclude evidence in a civil case). To prove the use 

of excessive force in violation of the Eighth Amendment, Taylor 

was required to demonstrate that “the prison official acted with 

a sufficiently culpable state of mind (subjective component) and 

. . . the injury inflicted . . . was sufficiently serious

(objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th 
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Cir. 2008). The core inquiry rests on “whether force was 

applied in a good-faith effort to maintain or restore 

discipline, or maliciously and sadistically to cause harm.” 

Hudson v. McMillian, 503 U.S. 1, 7 (1992). The extent of injury 

suffered may be relevant to whether the force was necessary and 

indicative of the amount of force applied. Wilkins v. Gaddy, 

559 U.S. 34, 37-38 (2010).

In this case, however, the proffered evidence, photographs 

of Taylor’s injuries, was not relevant to whether Trial 

Defendants applied force in a good-faith effort to restore 

discipline, or maliciously and sadistically to cause harm. The 

only evidence introduced on that issue was the testimony of 

Taylor, Fuller, and Pulliam, the only individuals present when 

force was applied, who all gave the same account: Taylor 

suffered an injury to his arm while being handcuffed by the 

correction officers. Notably, Taylor never testified that the 

extent of his injuries was different from what was described by 

the Trial Defendants. Accordingly, photographs of Taylor’s 

injuries would have no relevance to the credibility of those 

witnesses or whether the Trial Defendants acted maliciously or 

sadistically to cause Taylor’s injuries. The exclusion of the 

photographs therefore did not affect the outcome of the trial.

Accordingly, we affirm the district court’s orders and 

judgment. We dispense with oral argument because the facts and 
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legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

AFFIRMED