* District Judge of the Northern District of Texas, sitting by

designation. Judge Parker was originally a member of the panel but

determined that he is recused. This appeal is being decided by a

quorum. See 28 U.S.C. § 46(d).

* * 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this opinion should not be published and is not precedent except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 1

FOR THE FIFTH CIRCUIT 2

______________ 3

No. 97-40845 4

______________ 5

RAYMOND EARNEST CHRISTOPH, 6

Plaintiff-Appellant, 7

versus 8

JIMBO RAINS, Sheriff; CLAUDIE KENDRICK, Ex-Sheriff; 9

COMMISSIONERS COURT OF HOUSTON COUNTY, TEXAS, 10

Defendants-Appellees. 11

_________________________________________________________ 12

Appeal from the United States District Court 13

for the Eastern District of Texas 14

(9:94-CV-47) 15

_________________________________________________________ 16

September 15, 1999 17

Before EMILIO M. GARZA, Circuit Judge , and FITZWATER, District 18

Judge. * 19

PER CURIAM: ** 20

A county prisoner who alleged that he had been assaulted by 21

another inmate in an overcrowded cell block and subjected to other 22

unconstitutional jail conditions brought this civil rights action 23

alleging violations of the Eighth and Fourteenth Amendments and of 24

state law. He appeals an adverse judgment following a trial, 251 Christoph originally sued Sheriff Raines under the surname

“Rains,” but corrected the spelling in his amended complaint. We

will refer to Sheriff Raines by the proper spelling of his name.

The record reflects that the clai ms against Sheriff Raines

were dismissed without objection because he was not the Sheriff at

the relevant time. The district court did not charge the jury

concerning Christoph’s claims against Sheriff Raines and Christoph

does not appeal the dismissal of these claims. We do not disturb

this dismissal.

- 2 - contending the district court err ed by denying his discovery 26

motions (particularly a motion for disclosure) and motion for 27

appointment of counsel, and that the jury verdict must be reversed 28

because two witnesses gave perjured trial testimony. Although we 29

do not find that the district court abused its discretion by 30

refusing to appoint counsel or that plaintiff’s claim of perjured 31

witness testimony presents plain error, we hold that the district 32

court abused its discretion and acted unreasonably by denying 33

plaintiff’s motion for disclosure. Because we conclude after 34

studying the trial record that plaintiff likely incurred prejudice 35

to a substantial right, we VACATE and REMAND. 36

I 37

Plaintiff-appellant Raymond Earnest Christoph (“Christoph”), 38

who was detained in the Houston County, Texas jail while awaiting 39

transfer to the Texas Department of Criminal Just ice (“TDCJ”), 40

brought this pro se civil rights action against defendants Houston 41

County Sheriff Jimbo Raines (“Sheriff Raines”), 1 former Sheriff 42

Claudie Kendric k (“Sheriff Kendrick”), and the Houston County 43

C ommissioners Court. Christoph complained of jail overcrowding, 44

unsanitary conditions, denial of recreation and exercise, improper 45

diet, pla cement of pretrial detainees with convicted felons, and 462 Christoph complained that he was the only Caucasian among 18

prisoners, the remainder of whom were African-American. He

asserted that he did not seek segregation of prisoners by race, but

instead sought a more “balanced” assignment of persons of different

races to the same cell block.

3 The Eastern District of Tex as has since integrated the

initial disclosure provisions of the Plan into its Local Rules.

For clarity w e will cite the Plan provisions as they are now

codified in the Local Rules.

- 3 - det ention in a racially imbalanced cell. 2 He alleged that jail 47

overcrowding resulted in his being attacked on May 9, 1992 by 48

another prisoner, resulting in 25 stitches to his face, injury to 49

his neck, and mental, physical, and emotional pain. 50

Under the Civil Justice Expense and Delay Reduction Plan 51

(“Plan”) adopted by the Eastern District of Texas, the case was 52

placed on Track 2 for case management purposes, meaning that the 53

parties we re obligated to make initial disclosures but were not 54

permitted to conduct discovery. The Plan requires that each party 55

disclose to the opposing party “[a] copy of all documents, data 56

compilations, and tangible things in the possession, custody, or 57

control of the party that are likely to bear significantly on any 58

claimor defense[.]” E. D. Tex. R. CV-26(b)(1)(B). 3 Under the 59

Plan, “bears significantly on” includes “information that is likely 60

to have an influence on or affect the outcome of a claim or 61

defense,” E. D. Tex. R. CV-26(b)(3)(C), and “information that 62

deserves to be considered in the preparation, evaluation or trial 63

of a claim or defense,” E. D. Tex. R. CV-26(b)(3)(D). 64

The magistrate judge conducted the initial in forma pauperis 65

screening and recommended that the case be dismissed as frivolous. 664 The m otion for disclosure refers to May 12 rather than May

11, 1992, but Christoph refers in other pleadings and testimony to

May 11 as the correct date.

- 4 - He also denied Christoph’s motion for appointment of counsel. The 67

district judge concluded, however, that Christoph had stated a 42 68

U.S.C. § 1983 claim and granted him leav e to proceed i n forma 69

pauperis

. After defendants were served and answered, they made 70

their initial disclosures to Christoph and on February 25, 1997 71

filed with the clerk of court the notice of disclosure required by 72

the Plan. 73

While the case was pending before t he magistrate judge, and 74

later before the district judge, Christoph submitted several 75

discovery motions. On March 13, 1997 he filed a motion for 76

disclosure, in which he complained that trial was upcoming on June 77

23, 1997 but that defendants had not disclosed inter alia (1) 78

Houston County jail records that would show how many persons were 79

detained in cell bl ock 2 on March 27, 1992 (the day he was 80

arrested), May 9, 1992 (the day he was assaulted), and May 11, 1992 81

(the day he contends Sheriff Kendrick drastically reduced the 82

population of the cell block following the assault); 4 and (2) the 83

jail recreation logs or records for the period March through July 84

1992. The district court denied the motion by March 20, 1997 85

written order. It noted that the case had been assigned to Track 86

2, that Christoph was not entitled to conduct discovery, and that 87

the parties must comply with the Plan’s disclosure rules. Under 88

the Plan, only notices of disclosure, not the disclosures 89

themselves, are to be filed with the court. S ee E. D. Tex. R. CV- 90- 5 -

26(e). The district court found that defendants had complied with 91

the Plan’s requirement that they give notice of disclosure. The 92

court also held that Christoph was “not entitled to obtain any and 93

all documents that he desires that do not bear significantly on a 94

claim or defense.” 95

On June 23, 1997, as scheduled, the parties tried the case to 96

a jury. Roy H. House (“House”), the Jailer for Houston County in 97

1992, testified that the jail passed state inspection in 1991 and 98

1992. Christoph attempted to impeach House on cross-examination 99

with Texas Commission on Jail Standards (“TCJS”) inspection reports 100

for 1989-1991 that Christoph main tained showed that the jail had 101

not passed inspection. Christoph asserts that House committed 102

perjury. Sheriff Raines testified that a county sheriff is not 103

allowed by law to a ddress prison overcrowding by releasing 104

prisoners on his own authority. Christoph maintains that he has 105

discovered new evidence that demonstrates that Sheriff Kendrick in 106

fact released prisoners in 1992 without proper authorization. 107

The jury returned a verdict in favor of defendants and the 108

d istrict judgment entered a take nothing judgment dismissing the 109

case. Christoph appeals. 110

II 111

We review for abuse of discretion the district court’s order 112

denying Christoph’s motion for appointment of counsel. S ee Norton 113

v. Dimazana

, 122 F.3d 286, 293 (5th Cir. 1997). The magistrate 114

judge explicitly noted the releva nt factors and analyzed why 115

counsel should not be appointed. We are satisfied from our review 1165 We also note that the trial record is unclear on this point,

because there is a suggestion in the testimo ny (and Christoph

concedes to some extent in his reply brief) that TCJS granted the

jail a variance before passing it, rather than that the jail failed

inspection.

- 6 - of the record, including our assessment of the caliber of 117

Christoph’s appellate briefs, that this case does not present 118

exceptional ci rcumstances and that the magistrate judge did not 119

abuse his discretion in denying Chris toph’s motion for appointed 120

counsel. 121

Christoph contends the judgment must be reversed because House 122

gave perjured testimony that the jail had passed state inspection. 123

He raises this issue for the fi rst time on appeal. “It is the 124

unwavering rule in this Circuit that issues raised for the first 125

time on appeal are reviewed only for plain error.” M cCann v. Texas 126

City Refining, Inc.

, 984 F.2d 667, 673 (5th Cir.1993) (per curiam). 127

No plain error has been presented here. Christoph is asserting in 128

thi s civil case a witness impeachment issue that was properly 129

within the province of the jury as the judge of witness 130

credibility. 5 131

Sheriff Raines was asked, in the context of r elieving jail 132

overcrowding, whether a sheriff “was allowed by law just to start 133

releasing people,” and responded that he could not. Christoph 134

maintains that he has discovered new ev idence that demonstrates 135

that Sheriff Kendrick released prisoners in 1992 without proper 136

authoriza tion. Because Christoph also raises this claim for the 137

first time on appeal, we review for plain error. We find none, 138

particularly sinc e Sheriff Raines was asked what a sheriff could 139- 7 -

legally do, and Christoph proffers evidence that purports to show 140

what Sheriff Kendrick was doing illegally. 141

III 142

We review for abuse of discretion the district court’s order 143

denying Christoph’s motion for disclosure. S ee Atkinson v. Denton 144

Publ’g Co., 84 F.3d 144, 148 (5th Cir. 1996) (holding in review of 145

Eastern District of Texas Track 3 case that district court did not 146

abuse its discretion by denying plaintiff’s motion to expand number 147

of allowed interrogatories). “Control of discovery is committed to 148

the sound discretion of the trial court and its discovery rulings 149

will be reversed only where they are arbitrary or clearly 150

unreasonable.” M ayo v. Tri-Bell Indus., Inc.

, 787 F.2d 1007, 1012 151

(5th Cir. 1986). 152

A 153

Chr istoph sought disclosure of Houston County jail records 154

that would have shown how many persons were detained in cell block 155

2 on March 27, 1992, May 9, 1992, and May 11, 1992. He requested 156

these records to prove that the jail was overcrowded and that 157

Sheriff Kendrick had attempted to cure or cover up the overcrowding 158

by drastically reducing the population of the cell block following 159

the assault. Christoph pursued disclosure of the jail recreation 160

logs or records for the period March through July 1992 to establish 161

that Houston County did not permit inmates to engage in recreation. 162

The district court denied Christoph’s motion, conclud ing that he 163

was not entitled to discovery and that defendants had complied with 164

the Plan’s notice of disclosure requirement. 1656 As we have noted, under the Plan, only notices of disclosure,

not the disclosures themselves, are to be filed with the court.

See E. D. Tex. R. CV-26(e).

- 8 - B 166

We hold that these records clearly met the Plan’s definition 167

of documents that are likely to bear significantly on any claim. 168

Christoph complained of jail overcrowding. Information concerning 169

the daily operation logs for cell block 2 would likely have an 170

influence on or affect the outcome of his claim that the jail was 171

unconstitutionally overcrowded, see E. D. Tex. R. CV-26(b)(3)(C), 172

and deserved to be considered in the preparation, eva luation, or 173

trial of that claim, see E. D. Tex. R. CV-26(b)(3)(D). It would 174

also bear significantly on his assertion that Sheriff Kendrick 175

released all but four inmates from the cell block two days 176

following the assault of Christoph because he knew the cell was 177

illegally overcrowded and was attempting to cover up or cure the 178

problem. Information regarding the jail recreation logs or records 179

would likely have an influence on or affect the outcome of 180

Christoph’s claim that he was denied recreation, and it deserved to 181

be considered in the preparation, evaluation, or trial of that 182

claim. Defendants were therefore obligated under the Plan to 183

disclose these records. 184

Defendants do not contend that these do cuments were not in 185

their possession, custody, or control. They do not cite any place 186

in the record that establishes that they disclosed the documents to 187

Christoph, nor have we found from our review of the record that the 188

required disclosures were made. 6 Defendants principally focus on 189- 9 -

other discovery requests that Christoph submitted. Concerning the 190

documents at issue, they assert summarily that “[o]nce Defendants’ 191

initial disclosure was filed, Plaintiff simply re-urged all of the 192

improper motions.” They contend that the district court applied 193

the Plan as written and did not clearly abuse its discretion. In 194

view of the absence of any indication that defendants disclosed the 195

documents that Christoph seeks, we h old that the district court 196

abused its discretion and made an unreasonable discovery ruling 197

when it held in its order that defendants had c omplied with the 198

notice of disclosure requirement of the Plan but did not address 199

whether they had in fact made the required disclosures. We also 200

hold that the district court’s d enial of Christoph’s motion for 201

disclo sure was unreasonable and an abuse of discretion, because 202

these records were plainly within the scop e of documents that 203

defendants were obligated to disclose automatical ly in a Track 2 204

case. 205

C 206

We next decide whether defendants’ failure to disclose these 207

documents, and the district court’s failure to order th eir 208

disclosure, require that the judgment be vacated. 209

In the context of district court evidentiary rulings that are 210

reviewed for abuse of discretion, we have hel d that the abuse of 211

discretion must create the likelihood of prejudice. S ee Unit e d 212

States v. Tansley

, 986 F.2d 880, 887 (5th Cir. 1993). Even if the 213

district court errs in an evidentiary ruling, the error can be 214

excused if it was harmless. U nited States v. Capote-Capote

, 946 215- 10 -

F.2d 1100, 1105 (5th Cir. 1991). Because we hold that this 216

standard of review also applies to the discovery ruling at issue, 217

we will determine whether it is likely that Christoph incurred 218

prejudice that affected his substantial rights. 219

We have carefully considered the trial reco rd to assess 220

whether Christoph was prejudiced by the non-disclosure, and we 221

conclude that he was. Christoph sought in his motion for 222

disclosure to obtain documents that would enable him to prove that 223

his cell block was overcrowded on the days he entered the jail and 224

was assaulted. He also attempted to obtain records that would 225

permit him to demonstrate that two days following the assault, 226

Sheriff Kendrick significantly reduced the number of prisoners in 227

the ce ll block (from approximately 18 to four) in an attempt to 228

cure or cover up the overcrowding. Christoph introduced his own 229

testimony, and that of another inmate, to establi sh these facts. 230

He also attempted unsucce ssfully to elicit favorable testimony 231

concerning the jail population from witnesses aligned with 232

defendants. 233

Defendants vigorously impeached Christoph’s evid ence, 234

establishing through cross-examination that the witnesses could not 235

recall accurately the number of prisoners held at the relevant 236

times. In part using Christoph’s exhibits concerning inspections 237

by the TCJS for the period 1989-1991, defendants attempted to show 238

that the number of prisoners was decreasing over time, was far 239

below what Christoph contended, and did not exceed the rated jail 2407 Defendants conceded that the jail housed more inmates than

were permitted under the facility’s rated capacity. They pointed

out, however, that because of state prison overcrowding, many Texas

counties were unable to transfer convicted felons from their jails

to the TDCJ for service of sentence. They maintained that, despite

these adverse circumstances, the number of prisoners in the Houston

County jail never exceeded what was constitutionally permissible.

8 The d istrict court orally instructed the jury during trial

that it could consider the fact that a witness had been convicted

of a felony in assessing his credibility.

- 11 - capacity to an unconstitutional extent. 7 They offered detailed 241

evidence conc erning the configuration of the jail, its rated 242

capacity and a verage daily population, and approximate prisoner 243

population. When Christoph sought to prove through House, the 244

Jailer, t hat the cell block population was significantly reduced 245

within days of the assault, House testified that he could not 246

recall whether the number of prisoners was reduced to four on May 247

11, 1992. Christoph, who lacked the documents that defendants 248

should have disclosed, was forced to rely solely on the testimony 249

of convicted felons (including himself) 8 to e stablish the jail 250

population in 1992, and was unable to impeach defendants’ evidence. 251

In opening statement, defendants’ counsel accused Christoph of 252

exaggerating his overcrowding claim and emphasized during opening 253

statement and closing argument that Christoph had increased 254

dramatically the number of prisoners that he alleged were detained 255

with him in the same cell block. Defendants’ counsel also relied 256

on plaintiff’s TCJS records for 1991 to suggest that the jail was 257

not overcrowded in 1992. Christoph likely suffered prejudice due 258

to defendants’ failure to disclose the daily operation logs for the 259

relevant periods. 2609 H ouse testified that he was not sure whether there was a

recreation log that showe d outside recreation. We have assumed,

absent defendants’ denial, that there is such a record, but we do

n ot preclude defendants on remand from establishing that a

recreation log was not maintained during the relevant period.

- 12 - Concerning Christoph’s recreation claim, defendants introduced 261

evidence explaining how Houston County had converted the Sally Port 262

at the jail in to a recreation area when the recreation yard was 263

eliminated to permit construction, then in progress, of a new jail. 264

They offered testimony that this area was available for and used by 265

prisoners for exercise and recreation. Defendants also adduced 266

evidence that prisoners were permitted to do push ups and similar 267

exercises indoors when space was available, and that the jail 268

provided prisoners with dominos, cards, newspapers, books, access 269

to television, and tobacco products. Defendants produced expert 270

testimony that the facilities and recreation options at the jail 271

complied with TCJS standards. Christoph and another inmate witness 272

testified that jail officials denied outside recreation to 273

prisoners, but Christoph lacked jail recreation records that might 274

corroborate this evidence. Defendants’ failure to produce 275

recreation logs or records likely prejudiced Christoph. 9 276

* * * 277

Accordingly, we VACATE the judgment of the district court and 278

REMAND this case for further proceedings consistent with this 279

opinion. 280

VACATED and REMANDED. 281