* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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.

** The Honorable William F. Downes, District Judge, Un ited States District Court for the District of Wyoming, sitting by desig nation. 

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

### JUL 30 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BILLY W. WILLIAMS,

Plaintiff-Appellant,

v. DENVER, CITY AND COUNTY OF, a municipal corporation,

Defendant-Appellee. No. 96-1103 (D.C. No. 91-WY-1321-AJ) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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.-2-

This appeal arises from plaintiff’s claims against the City and County of Denver (the City) pursuant to the Age Discriminatio n and Employment Act (ADEA), 29 U.S.C. §§ 621-634, and for various const itutional violations. Plaintiff applied for a job with the city as an inf ormation specialist when he was fifty-five years old. Plaintiff was not chosen forthe job; in fact, he did not make it past the second-tier of the evaluation process a nd did not receive an interview. A thirty-five year-old woman, whom plaintiff claims was less qualified than he, was hired to fill the position. Based on these fac ts, plaintiff claims he was the victim of age discrimination. He filed amended complaints in which he alleged various constitutional violations; all of those cla ims were dismissed prior to trial. Plaintiff’s ADEA claims were presented to a jury, a nd, finding no discrimination, the jury returned a verdict for the City. The dist rict court denied plaintiff’s motion for judgment as a matter of law or, in the a lternative, for a new trial. Plaintiff appeals the district court’s judgment, an d we affirm. We have reviewed the record, and we hold that all o f plaintiff’s allegations of error are meritless. Plaintiff presents several points of error by his appointed trial counsel. “[T]he right to counsel in a civil case is not a matter of constitutional right,” and the “appropriate remedy for allegedly incompetent representation is a malpractice suit.” MacCuish v. United States , 844 F.2d 733, 735-36 (10th Cir. 1988) (quotation omitted).-3-

Plaintiff also argues error in the district court’s refusal to instruct the jury regarding willful age discrimination. The districtcourt found no evidence of willful behavior to justify submission of such an i nstruction and did not abuse its discretion by refusing a willful violation instruct ion. See United States v.
Starnes , 109 F.3d 648, 650-51 (10th Cir.), cert. denied , No. 96-9185, 1997 WL 333342 (U.S. June 27, 1997). We also find no meritin plaintiff’s conflict of interest argument. Not only did plaintiff waive objection to any potential conflict in a written status report, the matter was also add ressed in open court at the status conference, and the record shows the potential conf lict was resolved. Further, the record contains no evidence of judicial misconduct either in the court’s conduct during the trial or in its dismissal of certain con stitutional claims before trial. On de novo review, we hold that the district court did not err in denying plaintiff’s motion for judgment as a matter of law, and neither did it abuse its discretion in denying the motion for new trial. Se e Patton v. TIC United Corp. , 77 F.3d 1235, 1240 (10th Cir.), cert. denied , 116 S. Ct. 2525 (1996). Finally, plaintiff complains that the City’s attorney made p rejudicial and inflammatory statements in his closing statement. We note that plaintiff fails to point out the exact language to which he objects, but, in any eve nt, plaintiff made no objection at trial, and we find no plain error. Cf. Angelo v. Armstrong World Indus.Inc. , 11 F.3d 957, 960 (10th Cir. 1993) (failure to object t o evidence). Finally, plaintiff-4-

did not suffer a due process violation because of t he timeline of this case. All trial delays are explained by the docket sheet, and , in fact, several were at plaintiff’s request. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge