Thomas R. Sligar, Plaintiff-appellant, v. Tulsa Regional Medical Center; Don Hudson, Chief; Prestonstanley; Bill Jordan; and Tom L. Teel,defendants-appellees, 52 F.3d 338 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

This dispute arises out of plaintiff's arrest in 1990 in Collinsville, Oklahoma. As a result of his actions then, plaintiff was charged and convicted in state court of three counts of assault and battery on a police officer after former conviction of a felony, and one count of false impersonation after former conviction of a felony. Plaintiff has filed numerous lawsuits against the various people involved in his arrest and conviction, including this suit under 42 U.S.C.1983, in which he asserts claims under the Fourth, Fifth, Eighth, and Fourteenth Amendments against the four Collinsville police officers involved in his arrest, and Tulsa Regional Medical Center (TRMC), where he was taken for medical treatment. The district court granted summary judgment to TRMC, and dismissed under 28 U.S.C.1915(d) all of plaintiff's other claims except an excessive force claim against defendants Teel and Jordan. That claim was tried to a jury, which returned a verdict in favor of those defendants. Plaintiff appeals,²  raising six issues. Because he is pro se, we construe his pleadings liberally.³  See Haines v. Kerner, 404 U.S. 519, 520 (1972). We have jurisdiction under 28 U.S.C. 1291, and affirm.

Plaintiff argues that the district court mischaracterized his Fourth Amendment excessive force claim against defendants Hudson and Stanley as an Eighth Amendment cruel and unusual punishment claim, and erroneously dismissed it. The record shows that the district court analyzed this claim under both the Eighth and Fourth Amendments. R. Vol. II, tab A, at 4-5. Plaintiff admits he had no cognizable Eighth Amendment claim. The district court properly dismissed an excessive force claim against defendants Hudson and Stanley, as plaintiff did not allege that either of them applied any force to him, see Graham v. Connor, 490 U.S. 386, 397 (1989) (holding that plaintiff alleging excessive force must show officer's use of force was not objectively reasonable); Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding dismissal under 28 U.S.C.1915(d) is proper when plaintiff's claim has no arguable basis in law or fact).

Plaintiff asserts the district court erred in dismissing his conspiracy claim against defendants Hudson and Stanley. Even though plaintiff is pro se, he must still allege sufficient facts to support his claims. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Plaintiff made only conclusory allegations of a conspiracy, and the district court therefore did not err in dismissing that claim.

Plaintiff argues that the district court should have appointed counsel for him or allowed an inmate legal assistant to help him at his trial against defendants Jordan and Teel. There is no right to counsel in a civil case, see Smith v. Secretary, No. 93-2218, 1995 WL 104660, at * 31 n. 29 (10th Cir. March 7, 1995), and the district court did not abuse its discretion in declining to appoint counsel in this case, see Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994) (holding appointment of counsel in civil case is discretionary). It goes without saying that the district court had no obligation to allow an inmate legal assistant to help plaintiff at trial.

Plaintiff claims the district court improperly allowed defendants Jordan and Teel to impeach his credibility with evidence of his prior misdemeanor and felony arrests and convictions, and of his numerous lawsuits against parties involved in his arrest and conviction. As the appellant, it was plaintiff's responsibility to provide the portions of the trial transcript relevant to the issues raised on appeal. See 10th Cir. R. 10.1.1. In the absence of a transcript, we cannot determine that the district court abused its discretion in admitting the evidence plaintiff complains about. See Durtsche v. American Colloid Co., 958 F.2d 1007, 1011 (10th Cir. 1992) (holding district court's evidentiary rulings reviewed for abuse of discretion).

Plaintiff argues that the district court erred in denying him access to the original tape recordings or stenographic notes of his state criminal trial and permission to subpoena the jurors from that trial as witnesses, to impeach defendants Jordan's and Teel's testimony with their allegedly inconsistent prior testimony about his arrest. Because plaintiff gives no indication how this alleged impeachment evidence would be relevant to his excessive force claim, we cannot find the district court abused its discretion in refusing to admit it. See American Colloid Co., 958 F.2d at 1101.

Plaintiff argues that his rights were violated when he was denied a transcript of the district court trial against defendants Jordan and Teel, and the original stenographic notes from his criminal trial, for use in this appeal. The district court has discretion under 28 U.S.C. 753(f) to order a transcript at public expense for a civil litigant if the "judge certifies that the appeal is not frivolous (but presents a substantial question)." Based on our review of the record we have, see Jaffe v. United States, 246 F.2d 760, 762 (2d Cir. 1957), we cannot find that plaintiff presents a substantial question on appeal, and we conclude the district court did not abuse its discretion in refusing to provide him a free trial transcript. A transcript of plaintiff's criminal trial is in the record on appeal. The district court did not err in denying plaintiff access to the original stenographic notes from that trial.

Plaintiff's motion to supplement the record on appeal is DENIED. The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.