Danny Benito Taylor Rickey v. Herman C. Davis, Warden, Officer, O. Estes, 954, Riot Squad , 880 F.2d 1321 ( 1989 )

880 F.2d 1321

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Danny Benito Taylor RICKEY, Plaintiff-Appellant,
v.
Herman C. DAVIS, Warden, Defendant,
Officer, O. Estes, # 954, Riot Squad, Defendant-Appellee.

No. 88-5760.

United States Court of Appeals, Sixth Circuit.

Aug. 2, 1989.

Before WELLFORD and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

1

The plaintiff moves for a transcript at government expense on appeal from the district court's judgment in favor of the defendants in this prisoner's civil rights case. 42 U.S.C. Sec. 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

The plaintiff is a prisoner at the Tennessee State Prison at Nashville. The defendants are the warden and a guard at the prison. In his complaint, the plaintiff alleged that the guard beat the plaintiff about the head and body with a blackjack. Upon motion by the defendant, the district court dismissed the warden because the complaint contained no allegations of personal involvement on the part of the warden. The plaintiff has raised no issues concerning the liability of the warden on this appeal.

3

Concerning the liability of the guard, the district court held a jury trial. The jury found in favor of the defendant.

4

The motion for a transcript at government expense can only be granted if the appeal is not frivolous but presents a substantial question. 28 U.S.C. Sec. 753(f). A substantial question is one that is reasonably debatable. Ortiz v. Greyhound Corp., 192 F.Supp. 903, 905 (D.Md.1959). The motion should only be granted where there are unusual circumstances or where a new principle of law is involved. 192 F.Supp. at 906. A transcript at government expense is not required where the record is adequate for decision. Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir.), cert. denied, 471 U.S. 1126 (1985).

5

Upon examination of the record, we conclude that the motion for a transcript at government expense lacks merit and that the record is adequate for decision. In his brief, the plaintiff's allegations of perjury by the defendant's witnesses are merely conclusory. The plaintiff also argues that no riot occurred at the prison that would justify the actions taken by the defendants. The documentary and photographic evidence in the record refutes this claim. This appeal lacks a substantial issue.

6

The motion for a transcript at government expense is denied. The judgment of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.