815 F2d 705 Southers v. Caster Md

815 F.2d 705

Arnold J. SOUTHERS, Plaintiff-Appellant,
Chester CASTER, M.D. for East Tennessee Reception Center,

No. 86-6078.

United States Court of Appeals, Sixth Circuit.

March 30, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before KENNEDY, RYAN and NORRIS, Circuit Judges.


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This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the motions for counsel and transcript, informal brief and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.


Plaintiff initiated a prisoner civil rights action alleging that the failure of the defendant to prescribe him with a special diet and exercise program caused his cholesterol level to rise and caused him physical and mental suffering. The district court denied plaintiff's motions for appointment of counsel and an expert medical witness. After a hearing, the jury determined that plaintiff's constitutional rights were not violated and the action was dismissed. On appeal, plaintiff argues that the district court erred in failing to appoint him counsel and an expert medical witness and in approving the credentials of Dr. Pierce who testified for the defendant.


We conclude upon a review of the record that no showing was made in the district court of a deliberate indifference to plaintiff's medical condition. Estelle v. Gamble, 429 U.S. 97 (1976). Also, the issues presented on appeal are without merit.


The district court did not abuse its discretion in denying plaintiff's motions for counsel and an expert medical witness. Appointment of counsel is not appropriate when the claims presented are frivolous or when the chances of success are extremely slim. Mars v. Hanberry, 752 F.2d 254 (6th Cir. 1985); Childs v. Duckworth, 705 F.2d 915 (7th Cir. 1983). The circumstances of the case did not justify the appointment of counsel and an expert medical witness.


Plaintiff's claim that the district court erred in approving Dr. Pierce's credentials is also without merit. The record indicates that Dr. Pierce testified as an expert in the treatment of prisoners. Plaintiff agreed on the record that Dr. Pierce possessed the credentials of a general practitioner. To attempt was made to qualify Dr. Pierce as a cardiologist. In fact, the transcript specifically indicates that Magistrate Murrian advised that defendant was not trying to qualify Dr. Pierce as a cardiologist. Assessment of the credibility of a witness and the weight to be given the testimony remains with the jury. United States v. Benn, 476 F.2d 1127 (D.C. Cir. 1972).


It is ORDERED that the motions for transcript and counsel be denied and the judgment of the district court affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.