1 IN THE UNITED STATES COURT OF APPEALS 2 FOR THE FIFTH CIRCUIT 3 ______________ 4 No. 97-40845 5 ______________ 6 RAYMOND EARNEST CHRISTOPH, 7 Plaintiff-Appellant, 8 versus 9 JIMBO RAINS, Sheriff; CLAUDIE KENDRICK, Ex-Sheriff; 10 COMMISSIONERS COURT OF HOUSTON COUNTY, TEXAS, 11 Defendants-Appellees.

12 _________________________________________________________ 13 Appeal from the United States District Court 14 for the Eastern District of Texas 15 (9:94-CV-47) 16 _________________________________________________________ 17 September 15, 1999 Before EMILIO M. GARZA, Circuit Judge, and FITZWATER, District Judge.* PER CURIAM:** 21 A county prisoner who alleged that he had been assaulted by another inmate in an overcrowded cell block and subjected to other unconstitutional jail conditions brought this civil rights action alleging violations of the Eighth and Fourteenth Amendments and of state law. He appeals an adverse judgment following a trial,

* District Judge of the Northern District of Texas, sitting by designation. Judge Parker was originally a member of the panel but determined that he is recused. This appeal is being decided by a quorum. See 28 U.S.C. § 46(d). ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

26 contending the district court erred by denying his discovery motions (particularly a motion for disclosure) and motion for appointment of counsel, and that the jury verdict must be reversed because two witnesses gave perjured trial testimony. Although we do not find that the district court abused its discretion by refusing to appoint counsel or that plaintiff’s claim of perjured witness testimony presents plain error, we hold that the district court abused its discretion and acted unreasonably by denying plaintiff’s motion for disclosure. Because we conclude after studying the trial record that plaintiff likely incurred prejudice to a substantial right, we VACATE and REMAND.

37 I 38 Plaintiff-appellant Raymond Earnest Christoph (“Christoph”), who was detained in the Houston County, Texas jail while awaiting transfer to the Texas Department of Criminal Justice (“TDCJ”), brought this pro se civil rights action against defendants Houston County Sheriff Jimbo Raines (“Sheriff Raines”),1 former Sheriff Claudie Kendrick (“Sheriff Kendrick”), and the Houston County Commissioners Court. Christoph complained of jail overcrowding, unsanitary conditions, denial of recreation and exercise, improper diet, placement of pretrial detainees with convicted felons, and Christoph originally sued Sheriff Raines under the surname “Rains,” but corrected the spelling in his amended complaint. We will refer to Sheriff Raines by the proper spelling of his name.

The record reflects that the claims against Sheriff Raines were dismissed without objection because he was not the Sheriff at the relevant time. The district court did not charge the jury concerning Christoph’s claims against Sheriff Raines and Christoph does not appeal the dismissal of these claims. We do not disturb this dismissal.

- 2 - detention in a racially imbalanced cell.2 He alleged that jail overcrowding resulted in his being attacked on May 9, 1992 by another prisoner, resulting in 25 stitches to his face, injury to his neck, and mental, physical, and emotional pain.

51 Under the Civil Justice Expense and Delay Reduction Plan (“Plan”) adopted by the Eastern District of Texas, the case was placed on Track 2 for case management purposes, meaning that the parties were obligated to make initial disclosures but were not permitted to conduct discovery. The Plan requires that each party disclose to the opposing party “[a] copy of all documents, data compilations, and tangible things in the possession, custody, or control of the party that are likely to bear significantly on any claim or defense[.]” E. D. Tex. R. CV-26(b)(1)(B).3 Under the Plan, “bears significantly on” includes “information that is likely to have an influence on or affect the outcome of a claim or defense,” E. D. Tex. R. CV-26(b)(3)(C), and “information that deserves to be considered in the preparation, evaluation or trial of a claim or defense,” E. D. Tex. R. CV-26(b)(3)(D).

65 The magistrate judge conducted the initial in forma pauperis screening and recommended that the case be dismissed as frivolous.

Christoph complained that he was the only Caucasian among 18 prisoners, the remainder of whom were African-American. He asserted that he did not seek segregation of prisoners by race, but instead sought a more “balanced” assignment of persons of different races to the same cell block.

The Eastern District of Texas has since integrated the initial disclosure provisions of the Plan into its Local Rules.

For clarity we will cite the Plan provisions as they are now codified in the Local Rules.

- 3 - He also denied Christoph’s motion for appointment of counsel. The district judge concluded, however, that Christoph had stated a 42 69 U.S.C. § 1983 claim and granted him leave to proceed in forma pauperis. After defendants were served and answered, they made their initial disclosures to Christoph and on February 25, 1997 filed with the clerk of court the notice of disclosure required by the Plan.

74 While the case was pending before the magistrate judge, and later before the district judge, Christoph submitted several discovery motions. On March 13, 1997 he filed a motion for disclosure, in which he complained that trial was upcoming on June 23, 1997 but that defendants had not disclosed inter alia (1) Houston County jail records that would show how many persons were detained in cell block 2 on March 27, 1992 (the day he was arrested), May 9, 1992 (the day he was assaulted), and May 11, 1992 (the day he contends Sheriff Kendrick drastically reduced the population of the cell block following the assault);4 and (2) the jail recreation logs or records for the period March through July 1992. The district court denied the motion by March 20, 1997 written order. It noted that the case had been assigned to Track 2, that Christoph was not entitled to conduct discovery, and that the parties must comply with the Plan’s disclosure rules. Under the Plan, only notices of disclosure, not the disclosures themselves, are to be filed with the court. See E. D. Tex. R. CV- The motion for disclosure refers to May 12 rather than May 11, 1992, but Christoph refers in other pleadings and testimony to May 11 as the correct date.

- 4 - 91 26(e). The district court found that defendants had complied with 92 the Plan’s requirement that they give notice of disclosure. The 93 court also held that Christoph was “not entitled to obtain any and 94 all documents that he desires that do not bear significantly on a 95 claim or defense.”

96 On June 23, 1997, as scheduled, the parties tried the case to 97 a jury. Roy H. House (“House”), the Jailer for Houston County in 98 1992, testified that the jail passed state inspection in 1991 and 99 1992. Christoph attempted to impeach House on cross-examination 100 with Texas Commission on Jail Standards (“TCJS”) inspection reports 101 for 1989-1991 that Christoph maintained showed that the jail had 102 not passed inspection. Christoph asserts that House committed 103 perjury. Sheriff Raines testified that a county sheriff is not 104 allowed by law to address prison overcrowding by releasing 105 prisoners on his own authority. Christoph maintains that he has 106 discovered new evidence that demonstrates that Sheriff Kendrick in 107 fact released prisoners in 1992 without proper authorization.

108 The jury returned a verdict in favor of defendants and the 109 district judgment entered a take nothing judgment dismissing the 110 case. Christoph appeals.

111 II 112 We review for abuse of discretion the district court’s order 113 denying Christoph’s motion for appointment of counsel. See Norton 114 v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997). The magistrate 115 judge explicitly noted the relevant factors and analyzed why 116 counsel should not be appointed. We are satisfied from our review

- 5 - 117 of the record, including our assessment of the caliber of 118 Christoph’s appellate briefs, that this case does not present 119 exceptional circumstances and that the magistrate judge did not 120 abuse his discretion in denying Christoph’s motion for appointed 121 counsel.

122 Christoph contends the judgment must be reversed because House 123 gave perjured testimony that the jail had passed state inspection.

124 He raises this issue for the first time on appeal. “It is the 125 unwavering rule in this Circuit that issues raised for the first 126 time on appeal are reviewed only for plain error.” McCann v. Texas 127 City Refining, Inc., 984 F.2d 667, 673 (5th Cir. 1993) (per curiam).

128 No plain error has been presented here. Christoph is asserting in 129 this civil case a witness impeachment issue that was properly 130 within the province of the jury as the judge of witness 131 credibility.5 132 Sheriff Raines was asked, in the context of relieving jail 133 overcrowding, whether a sheriff “was allowed by law just to start 134 releasing people,” and responded that he could not. Christoph 135 maintains that he has discovered new evidence that demonstrates 136 that Sheriff Kendrick released prisoners in 1992 without proper 137 authorization. Because Christoph also raises this claim for the 138 first time on appeal, we review for plain error. We find none, 139 particularly since Sheriff Raines was asked what a sheriff could We also note that the trial record is unclear on this point, because there is a suggestion in the testimony (and Christoph concedes to some extent in his reply brief) that TCJS granted the jail a variance before passing it, rather than that the jail failed inspection.

- 6 - 140 legally do, and Christoph proffers evidence that purports to show 141 what Sheriff Kendrick was doing illegally.

142 III 143 We review for abuse of discretion the district court’s order 144 denying Christoph’s motion for disclosure. See Atkinson v. Denton 145 Publ’g Co., 84 F.3d 144, 148 (5th Cir. 1996) (holding in review of 146 Eastern District of Texas Track 3 case that district court did not 147 abuse its discretion by denying plaintiff’s motion to expand number 148 of allowed interrogatories). “Control of discovery is committed to 149 the sound discretion of the trial court and its discovery rulings 150 will be reversed only where they are arbitrary or clearly 151 unreasonable.” Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 152 (5th Cir. 1986).

153 A 154 Christoph sought disclosure of Houston County jail records 155 that would have shown how many persons were detained in cell block 156 2 on March 27, 1992, May 9, 1992, and May 11, 1992. He requested 157 these records to prove that the jail was overcrowded and that 158 Sheriff Kendrick had attempted to cure or cover up the overcrowding 159 by drastically reducing the population of the cell block following 160 the assault. Christoph pursued disclosure of the jail recreation 161 logs or records for the period March through July 1992 to establish 162 that Houston County did not permit inmates to engage in recreation.

163 The district court denied Christoph’s motion, concluding that he 164 was not entitled to discovery and that defendants had complied with 165 the Plan’s notice of disclosure requirement.

- 7 - 166 B 167 We hold that these records clearly met the Plan’s definition 168 of documents that are likely to bear significantly on any claim.

169 Christoph complained of jail overcrowding. Information concerning 170 the daily operation logs for cell block 2 would likely have an 171 influence on or affect the outcome of his claim that the jail was 172 unconstitutionally overcrowded, see E. D. Tex. R. CV-26(b)(3)(C), 173 and deserved to be considered in the preparation, evaluation, or 174 trial of that claim, see E. D. Tex. R. CV-26(b)(3)(D). It would 175 also bear significantly on his assertion that Sheriff Kendrick 176 released all but four inmates from the cell block two days 177 following the assault of Christoph because he knew the cell was 178 illegally overcrowded and was attempting to cover up or cure the 179 problem. Information regarding the jail recreation logs or records 180 would likely have an influence on or affect the outcome of 181 Christoph’s claim that he was denied recreation, and it deserved to 182 be considered in the preparation, evaluation, or trial of that 183 claim. Defendants were therefore obligated under the Plan to 184 disclose these records.

185 Defendants do not contend that these documents were not in 186 their possession, custody, or control. They do not cite any place 187 in the record that establishes that they disclosed the documents to 188 Christoph, nor have we found from our review of the record that the 189 required disclosures were made.6 Defendants principally focus on As we have noted, under the Plan, only notices of disclosure, not the disclosures themselves, are to be filed with the court.

See E. D. Tex. R. CV-26(e).

- 8 - 190 other discovery requests that Christoph submitted. Concerning the 191 documents at issue, they assert summarily that “[o]nce Defendants’ 192 initial disclosure was filed, Plaintiff simply re-urged all of the 193 improper motions.” They contend that the district court applied 194 the Plan as written and did not clearly abuse its discretion. In 195 view of the absence of any indication that defendants disclosed the 196 documents that Christoph seeks, we hold that the district court 197 abused its discretion and made an unreasonable discovery ruling 198 when it held in its order that defendants had complied with the 199 notice of disclosure requirement of the Plan but did not address 200 whether they had in fact made the required disclosures. We also 201 hold that the district court’s denial of Christoph’s motion for 202 disclosure was unreasonable and an abuse of discretion, because 203 these records were plainly within the scope of documents that 204 defendants were obligated to disclose automatically in a Track 2 205 case.

206 C 207 We next decide whether defendants’ failure to disclose these 208 documents, and the district court’s failure to order their 209 disclosure, require that the judgment be vacated.

210 In the context of district court evidentiary rulings that are 211 reviewed for abuse of discretion, we have held that the abuse of 212 discretion must create the likelihood of prejudice. See United 213 States v. Tansley, 986 F.2d 880, 887 (5th Cir. 1993). Even if the 214 district court errs in an evidentiary ruling, the error can be 215 excused if it was harmless. United States v. Capote-Capote, 946

- 9 - 216 F.2d 1100, 1105 (5th Cir. 1991). Because we hold that this 217 standard of review also applies to the discovery ruling at issue, 218 we will determine whether it is likely that Christoph incurred 219 prejudice that affected his substantial rights.

220 We have carefully considered the trial record to assess 221 whether Christoph was prejudiced by the non-disclosure, and we 222 conclude that he was. Christoph sought in his motion for 223 disclosure to obtain documents that would enable him to prove that 224 his cell block was overcrowded on the days he entered the jail and 225 was assaulted. He also attempted to obtain records that would 226 permit him to demonstrate that two days following the assault, 227 Sheriff Kendrick significantly reduced the number of prisoners in 228 the cell block (from approximately 18 to four) in an attempt to 229 cure or cover up the overcrowding. Christoph introduced his own 230 testimony, and that of another inmate, to establish these facts.

231 He also attempted unsuccessfully to elicit favorable testimony 232 concerning the jail population from witnesses aligned with 233 defendants.

234 Defendants vigorously impeached Christoph’s evidence, 235 establishing through cross-examination that the witnesses could not 236 recall accurately the number of prisoners held at the relevant 237 times. In part using Christoph’s exhibits concerning inspections 238 by the TCJS for the period 1989-1991, defendants attempted to show 239 that the number of prisoners was decreasing over time, was far 240 below what Christoph contended, and did not exceed the rated jail

- 10 - 241 capacity to an unconstitutional extent.7 They offered detailed 242 evidence concerning the configuration of the jail, its rated 243 capacity and average daily population, and approximate prisoner 244 population. When Christoph sought to prove through House, the 245 Jailer, that the cell block population was significantly reduced 246 within days of the assault, House testified that he could not 247 recall whether the number of prisoners was reduced to four on May 248 11, 1992. Christoph, who lacked the documents that defendants 249 should have disclosed, was forced to rely solely on the testimony 250 of convicted felons (including himself)8 to establish the jail 251 population in 1992, and was unable to impeach defendants’ evidence.

252 In opening statement, defendants’ counsel accused Christoph of 253 exaggerating his overcrowding claim and emphasized during opening 254 statement and closing argument that Christoph had increased 255 dramatically the number of prisoners that he alleged were detained 256 with him in the same cell block. Defendants’ counsel also relied 257 on plaintiff’s TCJS records for 1991 to suggest that the jail was 258 not overcrowded in 1992. Christoph likely suffered prejudice due 259 to defendants’ failure to disclose the daily operation logs for the 260 relevant periods.

Defendants conceded that the jail housed more inmates than were permitted under the facility’s rated capacity. They pointed out, however, that because of state prison overcrowding, many Texas counties were unable to transfer convicted felons from their jails to the TDCJ for service of sentence. They maintained that, despite these adverse circumstances, the number of prisoners in the Houston County jail never exceeded what was constitutionally permissible.

The district court orally instructed the jury during trial that it could consider the fact that a witness had been convicted of a felony in assessing his credibility.

- 11 - 261 Concerning Christoph’s recreation claim, defendants introduced 262 evidence explaining how Houston County had converted the Sally Port 263 at the jail into a recreation area when the recreation yard was 264 eliminated to permit construction, then in progress, of a new jail.

265 They offered testimony that this area was available for and used by 266 prisoners for exercise and recreation. Defendants also adduced 267 evidence that prisoners were permitted to do push ups and similar 268 exercises indoors when space was available, and that the jail 269 provided prisoners with dominos, cards, newspapers, books, access 270 to television, and tobacco products. Defendants produced expert 271 testimony that the facilities and recreation options at the jail 272 complied with TCJS standards. Christoph and another inmate witness 273 testified that jail officials denied outside recreation to 274 prisoners, but Christoph lacked jail recreation records that might 275 corroborate this evidence. Defendants’ failure to produce 276 recreation logs or records likely prejudiced Christoph.9 277 * * * 278 Accordingly, we VACATE the judgment of the district court and 279 REMAND this case for further proceedings consistent with this 280 opinion.

281 VACATED and REMANDED.

House testified that he was not sure whether there was a recreation log that showed outside recreation. We have assumed, absent defendants’ denial, that there is such a record, but we do not preclude defendants on remand from establishing that a recreation log was not maintained during the relevant period.

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