Tucker v. Phillips

Before KRUPANSKY and RALPH B. GUY, Jr., Circuit Judges and JAMES L. GRAHAM, District Judge.*

Plaintiff Tucker moves for counsel on appeal from the district court's judgment after a jury verdict for the defendants in this prisoner's civil rights case. 42 U.S.C. Sec. 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Tucker is a prisoner at the Kentucky State Penitentiary in Eddyville, Kentucky. The defendants are various prison officials. Tucker alleged that the prison officials intentionally allowed another prisoner to assault Tucker. At trial, the district court directed a verdict for some of the defendants, and the jury found in favor of the remaining defendants.

On appeal, Tucker raises a sufficiency of the evidence issue. He has not provided a transcript on appeal because the district court denied a motion for a transcript at government expense. In the absence of a transcript, the sufficiency of the evidence to support the verdict cannot be questioned on appeal. King v. Carmichael, 268 F.2d 305, 306 (6th Cir.1959) (per curiam), cert. denied, 361 U.S. 968 (1960). Moreover, concerning the motion for a transcript at government expense under 28 U.S.C. Sec. 1915(b), the district court's findings are controlling. Moss v. Thomas, 299 F.2d 729, 729-30 (6th Cir.1962). Therefore, Tucker's issue concerning the sufficiency of the evidence cannot be reviewed.

This panel has examined the deposition, affidavits, and exhibits contained in the record on appeal, and we conclude that the record does not present any exceptional circumstances that would justify a deviation from these general rules. Accordingly, the motion for counsel is denied. The judgment of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit.