Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

MEMORANDUM^** 

James D. Maciel, Sr., a California state prisoner, appeals pro se the district court's judgment after a bench trial against him and in favor of Mariposa County Jail, the jail's head sheriff and the jail's lieutenant. Maciel argues errors in denying his motion for appointment of counsel, in allowing Dr. Nichols's deposition to be read into evidence because Dr. Nichols was unavailable for trial and in awarding the defendants costs.

We affirm. "A motion for appointment of counsel under 28 U.S.C. § 1915 is addressed to the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). In determining whether sufficient exceptional circumstances exist to appoint counsel, "the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam); see also Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt) . Here, Maciel clearly articulated his claims. They did not involve complex legal issues and lacked merit. The district court properly denied appointment of counsel.

Testimony in a deposition is hearsay and admitting Dr. Nichols's deposition testimony into evidence was error. However, where a witness is unavailable for trial, his deposition may be admitted under either Fed.R.Evid. 804(b) (1) or (b) (5) as a hearsay exception upon notice to the adverse party sufficiently in advance of the trial. United States v. Provencio, 554 F.2d 361, 362 (9th Cir. 1977) (per curiam) (defining hearsay in a criminal proceeding).

Dr. Nichols was unavailable. A witness is unavailable where the proponent of a statement has been unable to procure his or her attendance "by process or other reasonable means." Fed.R.Evid. 804(a) (5); see Murray v. Toyota Motor Distributors, Inc., 664 F.2d 1377, 1380 (9th Cir.) (per curiam) (witness was unavailable where he was beyond reach of subpoena), cert. denied, 457 U.S. 1106 (1982). The defendants made a good faith effort to obtain Nichols's presence at trial by sending a subpoena to Nichols, demanding his appearance and to bring all documents pertaining to his treatment of Maciel. See id. Because the defendants complied with Fed.R.Evid. 804(a) (5), Dr. Nichols was unavailable. There may have been a notice problem, but Maciel does not raise this issue. See International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985) (this court "will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant's opening brief"). In any event, any error in reading Nichols's deposition into evidence was harmless because the district court could have reached the same decision without Nichols's testimony. See Kelly's Auto Parts No. 1, Inc. v. Boughton, 809 F.2d 1247, 1255 (6th Cir. 1987) (admission of hearsay evidence is harmless where other evidence would lead court to same result).

"Costs are awarded to the prevailing party in civil actions as a matter of course absent express statutory provision, 'unless the court otherwise directs.' " National Organization For Women v. Bank of California, 680 F.2d 1291, 1294 (9th Cir. 1982) (per curiam) (citing Fed. R. Civ. P. 54(d)). Maciel argues that the defendants should not have been awarded costs because his action is not frivolous, vexatious or meritless. This argument is irrelevant because it applies to the standard this court uses to review a district court's award of attorney fees not to the standard for reviewing an award of costs. See Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (prevailing defendant in a civil rights case should only be awarded attorney fees where the action is unreasonable, frivolous, meritless or vexatious); Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (accord). There was no error in awarding costs.

AFFIRMED.