USCA1 Opinion

October 11, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1881

JOHN MCCABE,

Plaintiff, Appellant,

v.

LEONARD MACH, ETC., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

John McCabe on brief pro se.

___________
Scott Harshbarger, Attorney General, Shelley L. Taylor,

Assist

_________________
Attorney General,

_________________

Nancy Ankers White,

____________________

Special

Assistant

Attor

General, and William D. Saltzman, Department of Correction, on

____________________

br

for appellees.

____________________

____________________

Per Curiam.
__________

We have reviewed

carefully the record

in

this case, including

the parties.

We

the trial transcript and the

find no reversible error to

briefs of

have occurred.

We add only the following.

We

find no

denial

civil

abuse of

discretion in

court's

of McCabe's request for appointment of counsel.

case,

counsel

is

required

circumstances" where absence of

in fundamental

unfairness

process rights."

Cir.

the trial

1991).

instant

particularly complex

in

"exceptional

counsel is "likely to result

impinging on

DesRosiers
__________

The

only

In a

[a litigant's]

due

v. Moran, 949 F.2d 15,

_____

23 (1st

case,

involve

which

questions of law or

did

not

fact, presented no

such exceptional circumstances.

Nor

did the

court

abuse its

discretion in

admitting

testimony, pursuant to Fed. R. Evid. 404(b), concerning prior

acts

of institutional

evidence

had bearing

violence committed

on the

by McCabe.

correction officers'

Such

state of

mind while attempting to remove McCabe from his cell and thus

was relevant to their defense against

McCabe's claim to have

been

excessive force.

the victim

of constitutionally

McCrary-El v. Shaw, 992

__________
____

court committed

no error

value of this testimony

F.2d 809, 812 (8th Cir.

in determining that

1993).

See
___

The

the probative

outweighed any prejudicial effect it

might have had on McCabe.

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Finally,

counsel's

we

find

appeal to the

[shift commander's]

no

reversible

jurors to "[p]ut

in

defense

yourselves in the

ask, as he

stood, whether

Counsel was

not improperly

asking the jurors

"to depart from neutrality

and decide the

case on the basis

of personal interest and bias

on the evidence,"

Forrestal v. Magendantz, 848 F.2d 303, 309

_________
__________

his

decision was

position and

error

reasonable."

rather than

(1st

Cir. 1988), but

to evaluate the

situation from what was

an

appeal

to

reasonableness of the

known to the shift commander.

"collective

common

sense"

is

inappropriate invocation of the "golden rule."

v. Abreu, 952 F.2d

_____

U.S.

might have

to

the

Moreover, any

it determine

evidence as

you have

courtroom.

Without any

Forrestal,
_________

848

F.2d

seen it

at

the

case "entirely

and heard

(no

it

on the

right in

this

prejudice."

See
___

prejudice

instruction cured "golden rule" error).

Affirmed.

which

the court's instructions

bias, without any

309

an

denied, 503
______

possible prejudice

arisen was corrected by

jury that

not

United States
_____________

1458, 1471 (1st Cir.), cert.

_____

994 (1992).

Such

where

proper

________

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