Roger v. Bower, etc.

USCA1 Opinion [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-2098 CHARLES F. ROGERS, Plaintiff, Appellant, v. NORMAN BOWER, ETC., ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge] Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge. Charles F. Rogers on brief pro se. William G. Scott, Marcia S. Kovalik and Boynton, Waldron, Doleac, Woodman & Scott, P.A. on brief for appellees. May 13, 1999 Per Curiam. This pro se appeal stems from a civil rights action. Among other things, plaintiff-appellant Charles F. Rogers alleged that defendant police officers used excessive force when arresting him. The case was tried to a jury, and judgment entered in favor of defendants. We affirm. Rogers argues that the district court erred in denying his request for an extension of the deadline for disclosure of experts and their written reports, and in subsequently excluding his police-practice expert, George Page, from testifying at trial. We see no abuse of discretion. Cf. Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 203 (1st Cir. 1996) ("A trial court may 'readily exclude a witness or exhibit if some previous order had set a deadline for identification and the proponent [has], without adequate excuse, failed to list the witness or exhibit.'") (citation omitted). Rogers had already received three extensions of the discovery deadline; he had been warned that no further extensions would be allowed; the further extension he sought would have interfered with the trial date (which had already been extended once); and there was no solid assurance that he could meet a new deadline. We also think that it would have been unfair to defendants to permit Page's testimony at trial where, it appears, they had never been provided with a written report. Rogers also argues that the district court abused its discretion in refusing to ask any of his proposed jury voir dire questions, and that the court conducted a one-side inquiry -- into potential bias regarding government agents. Our review of this issue is hampered by the absence of a transcript. The appellant bears the burden of producing "a transcript of such parts of the proceedings [below] not already on file" as is necessary to enable this court to place the parties' contentions into perspective. See Fed. R. App. P. 10(b); Moore v. Murphy, 47 F.3d 8, 10 (1st Cir. 1995). Where a transcript has not been produced, this court in its discretion either may scrutinize the merits of the case insofar as the record permits, or may dismiss the appeal if the absence of the transcript thwarts intelligent review. Moore, 47 F.3d at 10. We are aware that appellant is proceeding in forma pauperis, and that he filed a motion for a transcript at government expense in the district court. See 28 U.S.C. 753(f). However, the district court denied the motion on the ground that the appeal fails to present any substantial issues, and Rogers has failed to appeal that denial or renew his transcript request in this court. Indigence does not relieve an appellant of the burden of producing a transcript. See Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990) (dismissing issues on appeal for lack of a transcript despite appellant's indigence). In any event, the voir dire issue appears to be without merit. Although the trial judge arguably was required to make some inquiry into pro-government bias, he was not required to use Rogers's specific questions. See United States v. Victoria-Peguero, 920 F.2d 77, 84 (1st Cir. 1990) (stating that the trial court should ordinarily make inquiry into whether prospective jurors would be inclined to place greater faith in a government agent's testimony but also stating that the phrasing of the inquiry is up to the judge). The trial judge's handwritten notations on Rogers's voir dire proposal indicate that he intended to cover some of the requested questions (including a question as to whether jurors would give greater credence to the testimony of a law-enforcement official than an ordinary person). Finally, defendants argue (and Rogers does not deny) that Rogers made no objection to the questions actually posed. Under the circumstances, we must assume that any claim of error is waived. Affirmed.