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9 F3d 1551 Hutch v. Werner Aco III

9 F.3d 1551

Eugene J. HUTCH, Plaintiff-Appellant,
v.
Floyd WERNER, ACO III, Defendant-Appellee.

No. 92-16886.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 20, 1993.*
Decided Oct. 22, 1993.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BEEZER, KOZINSKI, and KLEINFELD, Circuit Judges.

1

MEMORANDUM**

2

Eugene J. Hutch, a Hawaii state prisoner, appeals pro se the district court's judgment in his 42 U.S.C. § 1983 civil rights action alleging that he was assaulted by a corrections officer in violation of the Eighth Amendment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

3

Hutch contends that the district court erred in finding that he was not assaulted by a corrections officer and entering judgment in favor of the defendant on his Eighth Amendment claims. We disagree. A review of the record here reveals that the district court found that the testimony of Hutch and his witness was not credible in light of the testimony of prison officials and the available medical and physical evidence. We are unable to say that the district court's findings of fact are clearly erroneous. See Fed.R.Civ.P. 52(a); Service Employees Int'l Union v. Fair Political Practices, 955 F.2d 1312, 1317 n. 7 (9th Cir.) (if plausible, findings of fact are not clearly erroneous), cert. denied, 112 S.Ct. 3056 (1992).1

4

Hutch also contends that the district court violated his constitutional right to counsel in a civil case. Appointment of counsel is required only when there are exceptional circumstances. See Terrel v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). Because Hutch has failed to demonstrate such circumstances exist here, we find that the district court did not err in failing to appoint counsel.2

The judgment of the district court is

5

AFFIRMED.

*

The panel finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3. Accordingly, appellant's request for publication is denied

1

Hutch's contention that the district court violated Rules 1002 and 1004 of the Federal Rules of Evidence is deemed waived because this issue is neither argued nor developed in his brief. See In re Riverside-Linden Investment, Co., 945 F.2d 320, 324 (9th Cir.1991). We further reject Hutch's contention that the district court erred by not recusing itself from this action because Hutch is raising this issue for the first time on appeal. See Pacific Express, Inc. v. United Airlines, Inc., 959 F.2d 814, 819 (9th Cir.), cert. denied, 113 S.Ct. 814 (1992)

2

Costs are awarded to appellee. See Fed.R.App.P. 39; 9th Cir.R. 39-1