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this opinion should not be published and is not precedent except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

1 IN THE UNITED STATES COURT OF APPEALS

2 FOR THE FIFTH CIRCUIT

3 ______________

4 No. 97-40845

5 ______________

6 RAYMOND EARNEST CHRISTOPH,

7 Plaintiff-Appellant,

8 versus

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

10 COMMISSIONERS COURT OF HOUSTON COUNTY, TEXAS,

11 Defendants-Appellees.

12 _________________________________________________________

13 Appeal from the United States District Court

14 for the Eastern District of Texas

15 (9:94-CV-47)

16 _________________________________________________________

17 September 15, 1999

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

Judge.* 19

PER CURIAM:** 20

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

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

23 unconstitutional jail conditions brought this civil rights action

24 alleging violations of the Eighth and Fourteenth Amendments and of

25 state law. He appeals an adverse judgment following a trial,
 

1Christoph 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 claims 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.

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26 contending the district court erred by denying his discovery

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

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

29 because two witnesses gave perjured trial testimony. Although we

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

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

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

33 court abused its discretion and acted unreasonably by denying

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

35 studying the trial record that plaintiff likely incurred prejudice

36 to a substantial right, we VACATE and REMAND.

37 I

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

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

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

41 brought this pro se civil rights action against defendants Houston

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

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

44 Commissioners Court. Christoph complained of jail overcrowding,

45 unsanitary conditions, denial of recreation and exercise, improper

46 diet, placement of pretrial detainees with convicted felons, and
 

2Christoph 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.

 

3The Eastern District of Texas has since integrated the

initial disclosure provisions of the Plan into its Local Rules.

For clarity we will cite the Plan provisions as they are now

codified in the Local Rules.

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detention in a racially imbalanced cell.2 47 He alleged that jail

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

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

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

51 Under the Civil Justice Expense and Delay Reduction Plan

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

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

54 parties were obligated to make initial disclosures but were not

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

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

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

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

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

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

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

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

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

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

65 The magistrate judge conducted the initial in forma pauperis

66 screening and recommended that the case be dismissed as frivolous.
 

4The motion 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.

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

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

69 U.S.C. § 1983 claim and granted him leave to proceed in forma

70 pauperis. After defendants were served and answered, they made

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

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

73 the Plan. 

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

75 later before the district judge, Christoph submitted several

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

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

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

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

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

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

82 (the day he contends Sheriff Kendrick drastically reduced the

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

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

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

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

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

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

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

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

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

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

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

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

95 claim or defense.”

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

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

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

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

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

101 for 1989-1991 that Christoph maintained showed that the jail had

102 not passed inspection. Christoph asserts that House committed

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

104 allowed by law to address prison overcrowding by releasing

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

106 discovered new evidence that demonstrates that Sheriff Kendrick in

107 fact released prisoners in 1992 without proper authorization.

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

109 district judgment entered a take nothing judgment dismissing the

110 case. Christoph appeals.

111 II

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

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

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

115 judge explicitly noted the relevant factors and analyzed why

116 counsel should not be appointed. We are satisfied from our review
 

5We also note that the trial record is unclear on this point,

because there is a suggestion in the testimony (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.

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

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

119 exceptional circumstances and that the magistrate judge did not

120 abuse his discretion in denying Christoph’s motion for appointed

121 counsel.

122 Christoph contends the judgment must be reversed because House

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

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

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

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

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

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

129 this civil case a witness impeachment issue that was properly

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

credibility.5 131 

132 Sheriff Raines was asked, in the context of relieving jail

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

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

135 maintains that he has discovered new evidence that demonstrates

136 that Sheriff Kendrick released prisoners in 1992 without proper

137 authorization. Because Christoph also raises this claim for the

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

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

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

141 what Sheriff Kendrick was doing illegally.

142 III

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

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

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

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

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

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

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

150 will be reversed only where they are arbitrary or clearly

151 unreasonable.” Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012

152 (5th Cir. 1986).

153 A

154 Christoph sought disclosure of Houston County jail records

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

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

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

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

159 by drastically reducing the population of the cell block following

160 the assault. Christoph pursued disclosure of the jail recreation

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

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

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

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

165 the Plan’s notice of disclosure requirement.
 

6As 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 -

166 B

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

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

169 Christoph complained of jail overcrowding. Information concerning

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

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

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

173 and deserved to be considered in the preparation, evaluation, or

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

175 also bear significantly on his assertion that Sheriff Kendrick

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

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

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

179 problem. Information regarding the jail recreation logs or records

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

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

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

183 claim. Defendants were therefore obligated under the Plan to

184 disclose these records.

185 Defendants do not contend that these documents were not in

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

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

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

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

190 other discovery requests that Christoph submitted. Concerning the

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

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

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

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

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

196 documents that Christoph seeks, we hold that the district court

197 abused its discretion and made an unreasonable discovery ruling

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

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

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

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

202 disclosure was unreasonable and an abuse of discretion, because

203 these records were plainly within the scope of documents that

204 defendants were obligated to disclose automatically in a Track 2

205 case.

206 C

207 We next decide whether defendants’ failure to disclose these

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

209 disclosure, require that the judgment be vacated. 

210 In the context of district court evidentiary rulings that are

211 reviewed for abuse of discretion, we have held that the abuse of

212 discretion must create the likelihood of prejudice. See United

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

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

215 excused if it was harmless. United States v. Capote-Capote, 946
- 10 -

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

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

218 we will determine whether it is likely that Christoph incurred

219 prejudice that affected his substantial rights.

220 We have carefully considered the trial record to assess

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

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

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

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

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

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

227 Sheriff Kendrick significantly reduced the number of prisoners in

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

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

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

231 He also attempted unsuccessfully to elicit favorable testimony

232 concerning the jail population from witnesses aligned with

233 defendants. 

234 Defendants vigorously impeached Christoph’s evidence,

235 establishing through cross-examination that the witnesses could not

236 recall accurately the number of prisoners held at the relevant

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

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

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

240 below what Christoph contended, and did not exceed the rated jail
 

7Defendants 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.

 

8The district 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.7 241 They offered detailed

242 evidence concerning the configuration of the jail, its rated

243 capacity and average daily population, and approximate prisoner

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

245 Jailer, that the cell block population was significantly reduced

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

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

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

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

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

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

252 In opening statement, defendants’ counsel accused Christoph of

253 exaggerating his overcrowding claim and emphasized during opening

254 statement and closing argument that Christoph had increased

255 dramatically the number of prisoners that he alleged were detained

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

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

258 not overcrowded in 1992. Christoph likely suffered prejudice due

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

260 relevant periods.
 

9House testified that he was not sure whether there was a

recreation log that showed outside recreation. We have assumed,

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

not preclude defendants on remand from establishing that a

recreation log was not maintained during the relevant period. 

- 12 -

261 Concerning Christoph’s recreation claim, defendants introduced

262 evidence explaining how Houston County had converted the Sally Port

263 at the jail into a recreation area when the recreation yard was

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

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

266 prisoners for exercise and recreation. Defendants also adduced

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

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

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

270 to television, and tobacco products. Defendants produced expert

271 testimony that the facilities and recreation options at the jail

272 complied with TCJS standards. Christoph and another inmate witness

273 testified that jail officials denied outside recreation to

274 prisoners, but Christoph lacked jail recreation records that might

275 corroborate this evidence. Defendants’ failure to produce

recreation logs or records likely prejudiced Christoph.9 276

277 * * *

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

279 REMAND this case for further proceedings consistent with this

280 opinion.

281 VACATED and REMANDED.