* 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that this opinion should not be published and is not precedent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.

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.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 00-CV-2096

--------------------

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
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

-3-

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

-4-

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.