Maceo Downey v. Mike Barry

Filing

UNPUBLISHED OPINION FILED. [12-40337 Affirmed ] Judge: PEH , Judge: PRO , Judge: LHS Mandate pull date is 04/11/2013; granting motion to strike portion of brief filed by Appellee Mr. Mike Barry [7194717-2]; denying motion to appoint counsel filed by Appellant Mr. Maceo Downey [7062352-2] [12-40337]

Case: 12-40337

Document: 00512182812

Page: 1

Date Filed: 03/21/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-40337
Summary Calendar

March 21, 2013
Lyle W. Cayce
Clerk

MACEO DOWNEY,
Plaintiff–Appellant,
v.
DEPUTY MIKE BARRY, also known as Unknown Officer Galveston County Jail,
Defendant–Appellee.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:10-CV-74

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Maceo Downey, Texas prisoner # 1683859, alleged under 42 U.S.C. § 1983
that Officer Mike Barry used excessive force while attempting to apprehend him.
Downey appeals the district court’s judgment that granted summary judgment
and dismissed his claim. We review the district court’s grant of summary
judgment de novo. See Whittaker v. BellSouth Telecommc’ns, Inc., 206 F.3d 532,
534 (5th Cir. 2000).

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 12-40337

Document: 00512182812

Page: 2

Date Filed: 03/21/2013

No. 12-40337
The record reflects that Downey disregarded Officer Barry’s commands to
keep his hands on the vehicle by moving his hands down toward his belt;
Downey fled on foot from Officer Barry; and Downey reached down to his waist
and looked back at Officer Barry as he was fleeing. Based on these facts, it was
reasonable for Officer Barry to believe that Downey posed a threat of serious
harm to the officer or others. See Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.
2009); Reese v. Anderson, 926 F.2d 494, 499-501 (5th Cir. 1991) (upholding
deadly force when the suspect repeatedly refused to keep hands raised and
appeared to be reaching for an object). Accordingly, Officer Barry’s use of force
was not excessive and the district court did not err in granting summary
judgment. Therefore, the district court’s judgment is affirmed.
Officer Barry’s motion to strike the affidavit of Gary Barr and exhibits A-H
from Downey’s appellate brief is granted because the affidavit and exhibits were
not before the district court when it granted summary judgment. See Topalian
v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th Cir. 1992).
Downey’s motion for the appointment of counsel is denied as he has not
shown the existence of exceptional circumstances warranting such an
appointment. See Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084
(5th Cir. 1991) (per curiam).
AFFIRMED; MOTION TO STRIKE PORTIONS OF APPELLATE BRIEF
GRANTED; MOTION FOR THE APPOINTMENT OF COUNSEL DENIED.

2