Stephen Gilbert v. Steven French

Case: 08-20296 Document: 00511018361 Page: 1 Date Filed: 02/02/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 2, 2010

No. 08-20296 Charles R. Fulbruge III

Clerk

STEPHEN GILBERT,

Plaintiff-Appellant,

v.

STEVEN FRENCH, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CV-3986

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Stephen Gilbert appeals the district court’s grant of

summary judgment in favor of the Defendant-Appellees for Gilbert’s 42 U.S.C.

§ 1983 claims, arising from acts Gilbert contends constituted excessive force and

a failure to intervene, in violation of his constitutional rights. Finding no error

in the district court’s grant of judgment in favor of the Defendant-Appellees, we

AFFIRM.

*

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR .

R. 47.5.4.

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I. BACKGROUND

Summary judgment proof establishes that on December 19, 2004, at

approximately 9:30 p.m., Gilbert and another man, Michael Hall, entered a

Taqueria Arandas restaurant in Bryan, Texas. Gilbert and Hall were both

wearing masks over their faces; Gilbert was armed with a piece of pipe and Hall

was carrying a gun. Upon entering the restaurant, Gilbert and Hall assaulted

and restrained four of the five employees in the building. Hall used the back of

his gun to beat one employee, Edmundo Cruz, who almost bled to death as a

result of his resulting head injury and cracked skull. While the fifth employee

exited the building to call the police, Gilbert and Hall demanded money from and

robbed the other four employees at gunpoint. The four employees were placed

in one of the restaurant’s food storage rooms, and Hall removed Santo Domingo

Reyes from the room to use as a hostage. The three employees remaining in the

storage room reported hearing the sounds of a beating, but the record is unclear

as to what injuries Reyes may have suffered prior to exiting the restaurant.

Cruz and the other two employees left in the storage room eventually escaped

through the front door, completely oblivious to what events subsequently took

place behind the restaurant.

Soon after the fifth employee had run across Texas Avenue to call the

police, numerous police units arrived on the scene and began to circle the

restaurant. While strategically positioning themselves, the police learned that

a dispatcher had just heard, over an open telephone line to the restaurant, a

male stating: “If he does not get any money, somebody is going to die.” At this

same time, one police officer observed a masked man armed with a gun through

one of the restaurant’s windows.

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After Officers French, Oliver, Bona, Pottinger, and Swartzlander

positioned themselves near the back door of the restaurant, Hall, still masked,

opened and looked out of the back door of the restaurant. The police announced

themselves and ordered Hall to surrender, but he refused and instead went back

into the restaurant. A few minutes later, the door opened again and this time

three men—Gilbert, Hall, and a hostage (Reyes)—exited. Reyes was bleeding

from his left arm and was being used by Gilbert and Hall as a shield between

them and the police.

Although the police ordered Gilbert and Hall to show their hands and get

down on the ground, neither complied. Instead, Hall shoved the hostage towards

the police, revealing a large black handgun pointed at the officers. Officer

French reported he was the first to see the gun in Hall’s hand, and that he began

to fire first.1 After the officers began to shoot at Hall, both Hall and Gilbert took

off running. French claims that both Officers Hauke and Oliver also fired at

Hall.2 Officer Oliver indicated that he shot at Hall three times. French reported

that he fired three rounds at Hall as Hall attempted to flee. Hall ultimately died

from the injuries he sustained in his attempt to flee.

The record establishes that three officers shot at Gilbert: Officer Hines,

Officer Harrison, and Officer Schooler. Hines and Harrison were stationed on

1

Officer Swartzlander’s police report, however, indicates that he, or his dog, may have

been the first to notice the weapon Hall was carrying. In his report, Swartzlander stated that

as soon as Hall shoved Reyes to the ground, his dog saw Hall’s pistol and immediately leaped,

in an attempt to attack Hall. Because Swartzlander was attached by a leash to the trained

dog, the dog’s sudden leaping caused Swartzlander to fall to the ground. Consequently,

Swartzlander watched from the ground as Hall aimed his weapon at Oliver and French.

2

Although Hauke was not stationed directly behind the restaurant, and thus never saw

the bloody hostage, Hauke reported that he shot four rounds at Hall as Hall attempted to flee

the scene.

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the opposite (front side) of the restaurant, behind a car they were using for

protection. Officer Schooler was positioned with Officer Amaya (who did not

shoot at Gilbert)– and they were hiding behind another car. The evidence does

not establish whether it was Hines’s, Harrison’s, or Schooler’s shots that actually

hit Gilbert (he sustained two gunshot wounds).3 Gilbert, in his complaint,

various pleadings, and now in his brief before this court, maintains that he was

running away with his arms raised, in an apparent attempt to surrender.4 The

record is not entirely clear whether his arms were in fact raised as he ran across

Texas Avenue.5

The record is clear that Officer Schooler was the first to open fire on

Gilbert. Her police report, in pertinent part, states as follows:

At some point I became aware that other officers were behind the

building. I heard Sgt. S. French advise on the radio that the

robbery was in progress . . . I heard Pottinger and possibly French

on the radio advising a suspect was coming out the back door. I

heard some type of scuffle coming from the northwest corner of the

building. I then heard a gunshot at the same time I saw a muzzle

flash from that area. Then a suspect ran from that area toward

Texas Avenue. I shouted once or twice for the suspect to stop but he

continued running. I then fired my shotgun at the suspect. He

3

However, we note that when the officers were interrogating Gilbert at the hospital,

Gilbert stated that he thought he had been shot by a male.

4

Gilbert also disputes the factual basis for his criminal conviction, claiming that Hall

forced him against his will to commit the robbery. Since the instant appeal is not an appeal

of his criminal conviction, but rather, is only an appeal of the district court’s entry of judgment

in favor of the Defendants for Gilbert’s § 1983 claims, we will not conduct a review of the

factual basis for the jury’s criminal conviction. Instead, we review only those facts that are

pertinent to the district court’s adjudication of Gilbert’s § 1983 excessive force and failure to

intervene claims.

5

Gilbert never claims that he actually stopped running or that he verbally announced

a surrender.

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continued running toward Texas Avenue so I fired at him again. He

still was running so I attempted to fire a third time. My shotgun

did not discharge so I racked it once and fired it a third time at the

suspect. By this time the suspect had reached Texas Avenue and

ran across. As soon as the suspect reached the grass east of the

street, he collapsed onto the ground face-down . . . .

Officer Amaya, who was the closest officer to Schooler during the shooting,

reported that he saw Gilbert running across the street and witnessed Schooler

shooting at Gilbert while he crossed the street. Amaya, however, does not state

whether Gilbert’s arms were up or down as he crossed Texas Avenue.

Hines reported that as he watched Gilbert run by Schooler, Gilbert turned

to his right and “almost stopped.” Hines claims that Gilbert then faced both

Schooler and Amaya– although Hines admits that his view of this scene was

partially blocked by Schooler and Amaya. Hines then watched as Gilbert turned

and began once again to run across Texas Avenue. Hines claims he fired four

rounds at Gilbert as Gilbert crossed the street.

Harrison’s account of this same scene is similar to Hines’s, as he states, in

pertinent part:

[Gilbert] then slowed down and turned to face his body and hands

toward us. Officer Schooler then fired her shotgun at the subject.

The subject then turned back and continued to run towards and

across Texas. As the suspect started crossing Texas, he again

slowed and faced towards us with his hands slightly extended in

front of him. I started firing and the suspect turned around and

started running again. I believe I fired two or three rounds at the

subject.

After sustaining two gunshot wounds, Gilbert was transported to St.

Joseph Hospital, where he received medical treatment. Gilbert was eventually

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arrested, yet he remained in the hospital for three days until he was released to

police custody.

On December 14, 2006, Gilbert filed his pro se complaint, bringing suit

against sixteen City of Bryan police officers, alleging various civil rights

violations cognizable under 42 U.S.C. § 1983. Specifically, Gilbert alleged that

certain City of Bryan police officers used excessive force against him, that others

failed to intervene on his behalf to prevent the use of excessive force, and that

two others delayed his access to medical care to treat his resulting gunshot

wounds. He also claimed that these actions were conducted pursuant to a

Bryan police department policy of racial profiling.

The Defendant-Appellees filed a motion to dismiss, or in the alternative,

a motion for summary judgment. On February 12, 2008, the district court

entered an order granting in part, and denying in part, the Defendant-Appellees’

motion. The district court concluded that the doctrine of qualified immunity

shielded the police officers from any liability for Gilbert’s excessive force and

failure to intervene claims against the officers in their individual capacities, and

accordingly, granted summary judgment in their favor. Furthermore, the

district court concluded that Gilbert had failed to sufficiently plead an Equal

Protection claim of disparate treatment, and as a result, the district court

dismissed Gilbert’s claim of racial profiling in accordance with Fed. R. Civ. P.

12(b)(6).

The district court denied Defendant-Appellees’ motions for summary

judgment based on Gilbert’s delayed access to medical treatment claim and

failure to train/supervise claims against the City. Gilbert then filed an appeal

from the February 12, 2008 order, which this Court dismissed as said order did

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not constitute a final order at the time of Gilbert’s initial appeal. Thereafter, the

district court severed the claims disposed of in its February 12, 2008 order from

the remaining claims sought by Gilbert and declared by written order the

February 12, 2008 order a final judgment from which an appeal could be taken.

The instant appeal from the February 2008 order followed, attacking the

dismissal of the excessive force and failure to intervene claims.

The Plaintiff-Appellant raises three points of error. First, Gilbert asserts

that the district court erred when it refused to appoint him counsel. Liberally

construing his second argument, Gilbert contends that the district court erred

when it granted the Defendant-Appellees’ motion for summary judgment for

Gilbert’s excessive force and failure to intervene claims, based on the doctrine

of qualified immunity. And finally, Gilbert argues that the district court erred

when it allegedly denied him his right to conduct discovery pursuant to the

district court’s April 26, 2007 order.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo. Ford

Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). “Summary

judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’” McNeil v. Wyeth, 462 F.3d 364, 367 (5th Cir. 2006)

(quoting Fed. R. Civ. P. 56(c)). “An issue is ‘genuine’ if the evidence is sufficient

for a reasonable jury to return a verdict for the nonmoving party.” Hamilton v.

Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact-issue is material only if its

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resolution could affect the action’s outcome.” Minter v. Great Am. Ins. Co. of

N.Y., 423 F.3d 460, 465 (5th Cir. 2005).

Gilbert is proceeding pro se. Thus, we apply “less stringent standards

to parties proceeding pro se than to parties represented by counsel and liberally

construe the briefs of pro se litigants.” Grant v. Cuellari, 59 F.3d 523, 524 (5th

Cir. 1995). Under this standard, pleadings filed by a pro se litigant are

entitled to a liberal construction that affords all reasonable inferences which can

be drawn from them. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2000).

III. ANALYSIS

A. The District Court’s Grant of Summary Judgment

Although the Plaintiff-Appellant did not state so explicitly in his brief on

appeal, we liberally construe his second issue raised on appeal as arguing that

the district court erred when it determined no genuine issue of material fact

existed and granted summary judgment to the Defendant-Appellees based on the

doctrine of qualified immunity. Thus, in considering whether the district court

erred in its conclusion that no genuine issue as to any material fact existed to

preclude summary judgment on Gilbert’s excessive force and failure to intervene

claims, we have given careful consideration to the facts in the record and

Gilbert’s characterization of them.

“Qualified immunity is designed to protect government officials in limited

circumstances: ‘government officials performing discretionary functions

generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Hathaway v. Bazany, 507 F.3d 312, 320

(5th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus,

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when a court rules upon a question of qualified immunity, the Supreme Court

has stated that the court must first consider “this threshold question: Taken in

the light most favorable to the party asserting the injury, do the facts alleged

show the officer’s conduct violated a constitutional right?” Sauicer v. Katz, 533

U.S. 194, 201 (2001). “[I]f a violation could be made out on a favorable view of

the parties’ submissions, the next, sequential step is to ask whether the right

was clearly established.” Id. Now, however, lower courts may consider and

decide the second Saucier factor without ever reaching the first; the Supreme

Court has stated that “[a]lthough we now hold that the Saucier protocol should

not be regarded as mandatory in all cases, we continue to recognize that it is

often beneficial.” Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).

The district court was correct to grant the officers qualified immunity

because Gilbert has failed to demonstrate that the officers’ conduct violated a

constitutional right. First, we review Gilbert’s claim that his constitutional

rights were violated when Officers Hines, Harrison, and Schooler used excessive

force to apprehend him as he fled from the crime scene. Now on appeal, Gilbert

argues that at the point that Officer Schooler first opened fire on him, he had

ceased attempting to escape by running, and had turned to show her his hands

and surrender. Most notably, Gilbert offers a police report from Officer Harrison

indicating that at the point that Officer Schooler shot him, Gilbert had already

“slowed down and turned to face his body and hands toward[s]” the police. We

also note that Hines’s report states that Gilbert “almost stopped” in the middle

of Texas Avenue, before once again running to cross the street.

Neither Harrison nor Hines, however, indicate whether Gilbert was

running with his arms fully raised, or if he appeared to be waiving his arms in

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surrender. Amaya, who was standing closest to Schooler during the shooting,

does not state whether Gilbert was running with his arms raised or down. And

Officer Schooler, in her report, states that Gilbert was running with his arms

down.

We cannot conclude that either Officer Harrison’s or Officer Hines’s

statements regarding Gilbert’s potential pause and momentary display of his

hands in the middle of Texas Avenue serve to create a genuine issue of material

fact. See Minter, 423 F.3d at 465 (“A fact-issue is material only if its resolution

could affect the action’s outcome.”); see also Scott v. Harris, 550 U.S. 372, 381

(2007) (“[T]he mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment;

the requirement is that there be no genuine issue of material fact.”) (internal

quotations and citation omitted)).

That is, even if we were to adopt Gilbert’s submitted evidence and

characterization of the facts regarding whether he turned at the last second to

show his hands just before Officers Schooler, Hines, and Harrison fired at him,

in considering the legal precedents demarcating the constitutional boundaries

of a police officer’s use of “excessive force,” it is clear that the facts presented

here do not constitute a constitutional violation. Although there is no doubt that

Gilbert has a Fourth Amendment right to be free from unreasonable search and

seizure, the circumstances outlined in the present case cannot be characterized

as “unreasonable”– even when considered in the light most favorable to Gilbert,

the non-movant. In analyzing whether the present circumstances resulted in a

violation of his Fourth Amendment rights, we must consider “whether the force

used to effect a particular seizure [wa]s reasonable under the Fourth

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Amendment. [This] requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake. ” Graham v. Connor, 490 U.S.

386, 396 (1989) (internal quotations and citation omitted).

In applying the Supreme Court’s “test of reasonableness,” id., we find that

although Gilbert may have momentarily paused in the middle of Texas Avenue

and turned to show his hands, considering all of the circumstances surrouding

the armed robbery, the police officers were reasonable in the actions they

undertook in an attempt to apprehend Gilbert. Our “test of reasonableness . . .

requires careful attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Id.

Furthermore, the Supreme Court has held that:

[w]here the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to

others, it is not constitutionally unreasonable to prevent escape by

using deadly force. Thus, if the suspect threatens the officer with a

weapon ... deadly force may be used if necessary to prevent escape,

and if, where feasible, some warning has been given.

Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). “Moreover, ‘[t]he calculus of

reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments-in circumstances that are tense,

uncertain, and rapidly evolving-about the amount of force that is necessary in

a particular situation.’” Stroik v. Ponseti, 35 F.3d 155, 158 (5th Cir. 1994)

(quoting Graham, 490 U.S. at 396-397).

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Given these constitutional parameters, we agree with the district court in

its determination that Schooler’s, Hines’s, and Harrison’s use of force in

arresting Gilbert did not violate his constitutional rights– and consequently, that

these officers were entitled to qualified immunity. The district court was correct

in its assessment that the police officers use of force to restrain Gilbert “was

reasonably premised on their belief that Gilbert posed an immediate threat to

officers and the public.”

The summary judgment evidence presented to the district court

undisputably reveals that when the police officers arrived on the scene, they

received information that an armed robbery was taking place inside the

restaurant, someone was armed with a gun, and they knew that a dispatcher

had heard, over an open telephone line to the restaurant, a male stating: “If he

does not get any money, somebody is going to die.” At the same time, one police

officer observed a masked man armed with a gun through one of the restaurant’s

windows. Although Schooler, Hines, and Harrison themselves did not see the

bleeding hostage or Hall’s pistol, they were well aware of the aforementioned

factors when, suddenly, they heard gunshots, saw the flash of a muzzle, and saw

a masked man running in the night– from the crime scene towards Texas

Avenue.

Although we may now find ourselves, with the depth of the record before

us on appeal, tempted to question the officers’ judgment in deciding to fire their

weapons at Gilbert as he crossed Texas Avenue, the doctrine of qualified

immunity requires us to give these officers adequate allowance for “the

split-second judgmen[t they were forced to make] in circumstances that [we]re

tense, uncertain, and rapidly evolving.” Stroik, 35 F.3d at 158 (internal citations

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and quotations omitted). The armed robbery that Gilbert and Hall undertook

is exemplary of a tense, uncertain, and rapidly evolving situation– one that

requires police officers to make split-second judgments that the doctrine of

qualified immunity is designed to protect.

We conclude, therefore, that “[u]nder these circumstances, a reasonable

officer could well fear for his safety and that of others nearby.” Reese v.

Anderson, 926 F.2d 494, 501 (5th Cir. 1991). Even if, just before Officer Schooler

shot Gilbert, he did turn to show her his hands, we cannot conclude that Officer’s

Schooler’s use of a deadly weapon in this set of circumstances violated Gilbert’s

constitutional rights. Although Gilbert offers Officer Harrison’s and Officer

Hines’s reports to indicate that he slowed down momentarily and showed his

face and his hands, there is no evidence or allegation that he slowed down and

showed his hands for a sufficient amount of time– such that Officer Schooler

could reasonably be expected to interpret his actions as a safe surrender and

abandon her duty as a police officer to apprehend what she reasonably

interpreted to be a criminal fleeing a dangerous crime scene. Given the severity

of the armed robbery, the deadly weapon officers knew a suspect possessed

inside the restaurant, the gunshots the three officers heard, and the fact that

Gilbert himself was subsequently observed fleeing the scene while wearing a

mask, we cannot conclude that it was unreasonable or in violation of the

Constitution for Schooler, Hines, and Harrison to fire their weapons in attempt

to apprehend Gilbert. “Under such circumstances, an officer is justified in using

deadly force to defend himself and others around him.” Id.

Further, because we find the police officers’ actions in using deadly force

to arrest Gilbert do not amount to an unconstitutional use of excessive force, it

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follows that the district court was correct in granting judgment on Gilbert’s

failure to intervene claims. That is, an officer must be present at a scene

involving another officer’s use of excessive force before he may be held liable for

failure to intervene. See Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995) (An

officer may be liable under § 1983 if she “is present at the scene and does not

take reasonable measures to protect a suspect from another officer’s use of

excessive force. . . .”). Since we conclude no officer used excessive force in

apprehending Gilbert, we simultaneously conclude that no officer

unconstitutionally failed to intervene.

Accordingly, we affirm the district court’s grant of summary judgment on

the Plaintiff-Appellant’s § 1983 claims for excessive force and failure to

intervene. The district court was correct to conclude that the individual police

officers were entitled to qualified immunity for their actions.

B. The District Court’s April 26, 2007 Order

Gilbert also claims that the district court erred when, in its April 26, 2007

order, it denied him his right to conduct discovery. We have reviewed this order,

however, and cannot conclude that the district court outright denied Gilbert the

right to conduct any and all discovery. The district court’s April 26, 2007 order

is actually a “Service of Process” order, in which the district court declared that

“[n]o further discovery will be allowed except on further order of the Court.”

This is routine procedure at such an early stage in the proceedings, and

as a result, does not constitute an abuse of discretion. In cases involving

qualified immunity questions of this nature, the district court is correct to

resolve the question of qualified immunity prior to permitting the plaintiff to

proceed with discovery. This is because the Supreme Court has “made clear that

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the ‘driving force’ behind creation of the qualified immunity doctrine was a

desire to ensure that ‘insubstantial claims against government officials [will] be

resolved prior to discovery.’” Pearson, 129 S.Ct. at 815 (quoting Anderson v.

Creighton, 483 U.S. 635, 640, n. 2 (1987)). Qualified immunity is “an

entitlement not to stand trial or face the other burdens of litigation.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985).

As a result, we find no error in the district court’s April 26, 2007 order.

C. The District Court’s Denial of Motion to Appoint Counsel

We review a district court’s denial of a motion for appointment of counsel

for abuse of discretion. Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985). “A

federal court has discretion to appoint counsel if doing so would advance the

proper administration of justice.” Ulmer v. Chancellor, 691 F.2d 209, 213 (5th

Cir.1985) (citing 28 U.S.C. § 1915(d) (1976)). The district court should consider

four factors in ruling on a request for appointed counsel: “(1) the type and

complexity of the case; (2) whether [Gilbert] is capable of adequately presenting

[his] case; (3) whether [Gilbert] is in a position to investigate adequately the

case; and (4) whether the evidence will consist in large part of conflicting

testimony so as to require skill in the presentation of evidence and in cross

examination.” Id.

We note that although the district court did not explicitly discuss each of

the four Ulmer factors, the district court’s analysis indicates that these factors

were sufficiently considered. When the district court denied Gilbert’s motion for

appointment of counsel on October 24, 2007, the district court reasoned that:

The primary issue presented in this case, which concerns whether

individual police officers used excessive force to arrest the plaintiff

during the commission of an armed robbery that involved hostages,

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is fairly straight forward. The record reflects that the plaintiff’s

pleadings and motions are lengthy, detailed, articulate, and

adequately researched. At this time, the case does not present

exceptional circumstances showing that appointment of counsel is

necessary.

We have reviewed the Plaintiff-Appellant’s pleadings and submitted

evidence, and concur in the district court’s assessment that given the detailed

arguments and evidence Gilbert has thus far presented, he is capable of

adequately presenting his case. This is not the sort of case that will require

special skill such as is necessary to cross-examine a witness or give a closing

argument in a courtroom. As such, we do not find that the district court abused

its discretion in denying Gilbert’s motion for appointment of counsel on October

24, 2007.6

IV. CONCLUSION

Accordingly, for the aforementioned reasons, we AFFIRM the district

court’s April 15, 2008 entry of judgment in favor of the Defendant-Appellees,

with prejudice, on the Plaintiff-Appellant’s § 1983 claims for excessive force and

failure to intervene.

6

To the extent that Gilbert is asking this Court to review the district court’s denial of

his motion to appoint counsel for representation relating to the remainder of his severed

claims (specifically, the delayed access to medical treatment and failure to train/supervise

Bryan City employees claims), we cannot entertain his request. Because the district court

severed these claims on April 15, 2008, when it entered final judgment on his excessive force

and failure to intervene claims, we do not have jurisdiction to review the district court’s denial

of his motion to appoint counsel for the adjudication of the severed claims.

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