Joseph Gant, Plaintiff/appellant, v. Anthony Mccubbin,** Defendant/appellee, 21 F.3d 430 (7th Cir. 1994)

ORDER

Joseph Gant, previously an inmate at the East Moline Correctional Center, appeals the judgment on partial findings granted to defendant Anthony McCubbin pursuant to Fed. R. Civ. P. 52(c).¹  At the close of Gant's case-in-chief in a bench trial, the court found that Gant failed to show a right to relief under 42 U.S.C. § 1983 with respect to his claim that McCubbin failed to protect Gant from a brutal attack by three other inmates. Gant challenges this finding and also argues that he was denied effective assistance of counsel at trial.

The Sixth Amendment guarantee of effective assistance of counsel is not applicable in civil cases. While there may be a limited due process right to counsel in narrow circumstances, see Lassiter v. Department of Social Servs., 452 U.S. 18 (1981) (parental status termination proceeding); In re Gault, 387 U.S. 1 (1967) (juvenile delinquency, commitment proceeding), in general the Supreme Court has recognized only a right to retained, not appointed, counsel in civil proceedings. Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985); Powell v. Alabama, 287 U.S. 45, 69 (1932). Since Gant has no constitutional right to have counsel appointed, it follows that he had no constitutional right to effective assistance of counsel. See Barkauskas v. Lane, 946 F.2d 1292, 1294 (7th Cir. 1991); Lewis v. Lane, 816 F.2d 1165, 1169 n. 6 (7th Cir. 1987); Wolfolk v. Rivera, 729 F.2d 1114, 1119-20 (7th Cir. 1984). Like any civil litigant, Gant may seek a remedy against his attorney in a separate suit for malpractice.

We are required to review the district court's ruling for clear error. Furth v. Inc. Publishing Corp., 823 F.2d 1178, 1180 (7th Cir. 1987); Sanders v. General Service Admin., 707 F.2d 969 (7th Cir. 1983) (findings of fact made by the district court when granting a Rule 41(b) motion, pursuant to Rule 52(a), are reviewed for clear error). However, we are unable to do so because Gant has failed to provide this court with transcripts of the trial. The district court's order granting the defendant's motion for judgment on partial findings, made at the close of Gant's case-in-chief, states that Gant failed to show a right to relief with respect to his claim that McCubbin failed to protect Gant. The order states that the district court's ruling is "based upon the findings of fact and conclusions of law set out in the record of the bench trial."

Traditionally, this court has required strict compliance with Federal Rule of Appellate Procedure 10(b), see Wilson v. Electro Marine Systems, Inc., 915 F.2d 1110, 1117 (7th Cir. 1990) (court may review only if raised issues are purely legal); see also Woods v. Thieret, 5 F.3d 244 (7th Cir. 1992), Fisher v. Krajewski, 873 F.2d 1057, 1069 (7th Cir. 1989), cert. denied, 493 U.S. 1020 (1990), and indigence is not an excuse. See 28 U.S.C. § 753(f); Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.), cert. denied, 498 U.S. 901 (1990); Thomas v. Computax, 631 F.2d 139, 142 (9th Cir. 1980). Gant has failed to submit any part of the transcript of the lower court proceedings and failed to make an application to the district court to pay for the transcripts. Accordingly, because no meaningful review is possible without a transcript, the appeal is dismissed pursuant to Fed. R. App. P. 3(a) for failure to comply with Fed. R. App. P. 10(b).

DISMISSED.