* Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-41319

Conference Calendar

 

GERALD WAYNE OLIVE,

Plaintiff-Appellant,

versus

SIGIFREDO GONZALEZ, JR.; 

NORMA VILLARREAL RAMIREZ, Judge,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-96-CV-3

--------------------

December 11, 2001

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Gerald Wayne Olive challenges the dismissal following the

grant of a “directed verdict” at jury trial of his inadequatemedical treatment claim in this 42 U.S.C. § 1983 case. See Fed.

R. Civ. P. 50(a). He makes no argument regarding the prior

dismissal of his double-jeopardy and mail-interference claims,

and those claims are therefore waived. See Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1983).

The appellant has the burden of including in the record on

appeal transcripts of all proceedings relevant to the issues on
No. 99-41319

-2-

appeal. See Fed. R. App. P. 10(b); Reddin v. Robinson Prop.

Group Ltd. P’ship, 239 F.3d 756, 759 & n.4 (5th Cir. 2001). This

court will not consider an issue about which the record on appeal

is insufficient. Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.

1992); Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990). 

Olive has not presented the trial transcript in support of his

challenge to the dismissal of his inadequate-medical-treatment

claim. By not providing the court the necessary record, Olive

has failed to present an issue reviewable by this court.

Olive’s argument that the district court erred in denying

his discovery requests, depriving him of a fair trial, is

frivolous. There is no indication in the record that discovery

was sought and denied, nor is there any indication that a motion

to compel discovery was denied. 

Olive additionally contends that the trial court erred in

denying him appointed counsel at trial. This claim is facially

frivolous because Olive was in fact appointed counsel but

requested that counsel be dismissed. To the extent that Olive

again asks this court to appoint him appellate counsel, the

motion is DENIED for the reasons previously stated. See Olive v.

Gonzalez, No. 99-41319 (5th Cir. Jan 2, 2001). To the extent

that Olive complains that appointed counsel performed deficiently

prior to his dismissal, the claim is not cognizable. A civil

litigant generally has no constitutional or statutory right to

counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir.

1982). Because Olive had no constitutional or statutory right to

counsel in this civil rights case, he cannot complain about
No. 99-41319

-3-

counsel’s allegedly deficient performance in this proceeding. 

See Sanchez v. United States Postal Servs., 785 F.2d 1236, 1237

(5th Cir. 1986).

The instant appeal is wholly without arguable merit and is

DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5th Cir. R. 42.2. 

In his appellate brief, Gonzalez requests that he be awarded

costs and damages, pursuant to Fed. R. App. P. 38, for having to

defend against a frivolous appeal. The request is DENIED for the

reason that it has not been made in a separately filed motion as

is required by Rule 38.

APPEAL DISMISSED; MOTIONS DENIED.