McCarty v. Silva ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31315
Summary Calendar
ANTHONY BO MCCARTY,
Plaintiff-Appellant,
versus
M. D. DAVIS; POLICE DEPARTMENT OF SHREVEPORT,
Jump Out Crew and Narcotics Unit; J. J. SILVA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CV-2096
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November 7, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony Bo McCarty, Louisiana prisoner # 105523, appeals the
district court’s order granting the defendants’ motion for summary
judgment and dismissing his 42 U.S.C. § 1983 complaint with
prejudice.
McCarty argues that the district court erred in dismissing his
excessive force claims against Officers M.D. Davis and J.J. Silva
because, contrary to their contentions, he did not attempt to flee
*
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that this opinion should not be published and is not precedent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.
No. 01-31315
-2-
from police or resist arrest, thereby justifying the use of some
force in order to effectuate his arrest. In support of their
summary judgment motion, the defendants submitted affidavits from
Officers Davis and Silva, who stated that McCarty fled from police
and had to be tackled from behind by Officer Silva. Officer Davis
alleged that he was not personally involved in the arrest because
it was his responsibility to remain with the arrest van. Finally,
Chief of Police Roberts submitted an affidavit stating that there
is no policy or custom authorizing the use of excessive force in
his department and that the use of excessive force is not
tolerated.
After the magistrate judge issued a report and recommendation,
McCarty submitted an affidavit that contained facts contrary to
those alleged by the officers. In addition to this competent
summary judgment evidence, McCarty had also filed a verified
complaint and a sworn opposition to the magistrate judge’s report
and recommendation. In his affidavit, McCarty stated that he
immediately complied with the officers’ orders to lie face down on
the ground. He averred that, once he obeyed, the officers
handcuffed his hands behind his back and then began to beat him.
McCarty’s affidavit raises a genuine issue of material fact with
regard to whether he resisted arrest, such that the use of some
force would be justified. Accordingly, the district court’s order
granting summary judgment in favor of Officers Davis and Silva on
this claim is vacated and the matter is remanded for further
No. 01-31315
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proceedings. FED. R. CIV. P. 56(c). However, McCarty has presented
no competent summary judgment evidence to support his claims
against the Shreveport Police Department. Accordingly, the
district court’s order granting summary judgment in favor of the
Shreveport Police Department on this claim is affirmed. See id.;
see also Williams v. Bramer, 180 F.3d 699, 703, clarified on reh’g,
186 F.3d 633, 634 (5th Cir. 1999); Piotrowski v. City of Houston,
51 F.3d 512, 517 (5th Cir. 1995).
McCarty also argues that the district court erred in granting
the defendants’ motion for summary judgment on his claim that he
was denied adequate medical treatment. The record reveals that
McCarty was taken to the hospital and that he received treatment
for minor injuries, within seven hours of his arrest. Because
McCarty failed to show that the defendants were deliberately
indifferent to his serious medical needs and that the delay in
treatment resulted in substantial harm, the district court did not
err in granting the defendants’ motion for summary judgment as to
this claim. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993).
Additionally, McCarty argues that the district court erred in
dismissing his claim that the defendants violated his
constitutional rights by the use of racist language. The evidence
in this case is conflicting with regard to whether the officers
used racially offensive language. Nevertheless, McCarty has failed
to allege an arguable equal protection claim. See Williams, 180
No. 01-31315
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F.3d at 706. Accordingly, the district court’s order granting
summary judgment as to this claim is affirmed.
McCarty next argues that the district court erred in denying
his repeated requests for a copy of the transcript of his
preliminary hearing in state court, which he alleges would support
his excessive force claims against Silva. McCarty has not cited
any authority for the proposition that an indigent litigant is
entitled to a free transcript of a state court proceeding in order
to prosecute a 42 U.S.C. § 1983 action. Accordingly, the district
court did not abuse its discretion in denying this request.
McCarty has filed a motion asking this court to order the
state district court to provide McCarty with copies of the
transcript of his preliminary examination hearing and his guilty
plea waiver. McCarty’s motion, which the court considers to be an
application for mandamus, is DENIED. See Moye v. Clerk, DeKalb
County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973).
Finally, McCarty has filed a motion for appointment of counsel
on appeal. McCarty has adequately presented his arguments on
appeal. Accordingly, in light of the foregoing, his motion for
appointment of counsel is DENIED. See Richardson v. Henry, 902
F.2d 414, 417 (5th Cir. 1990); see also Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982).
AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTIONS
DENIED.