     Case: 12-40337       Document: 00512182812         Page: 1     Date Filed: 03/21/2013




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

                                                                            FILED
                                                                          March 21, 2013
                                     No. 12-40337
                                   Summary Calendar                        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.




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