McBride v. Hilton, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 5, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30146
Summary Calendar
LARRY STEPHEN MCBRIDE, SR.,
Plaintiff-Appellant,
versus
WILLIAM EARL HILTON; BRIAN FROST; MARK ROGERS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:03-CV-264
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges:
PER CURIAM:*
Larry Stephen McBride, Sr., prisoner # 23596 in the Rapides
Parish, Louisiana, detention center, appeals the district court’s
dismissal of his pro se, in forma pauperis, 42 U.S.C. § 1983
complaint. McBride also moves for appointment of counsel. He
argues that the district court erred by dismissing his claims,
which arose from an incident between him and deputies when they
responded to a domestic disturbance complaint, dismissing his
property damage claim, and failing to appoint him counsel.
McBride contends that Corporal Brian Frost used excessive force,

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causing him injuries, failed to obtain medical assistance for
him, and broke his $2,000 gold chain. Also on appeal, McBride
seeks relief for privacy, due process, “contra bonos mores,” and
First Amendment claims and requests appointment of appellate
counsel.
The district court properly granted Sheriff William Earl
Hilton’s motion to dismiss and Deputy Mark Rodgers’ motion for
summary judgment because McBride did not object to the magistrate
judge’s recommendations concerning these defendants, and he has
failed to demonstrate any plain error concerning those
dismissals. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1428-29 (5th Cir. 1996) (en banc).
The district court also did not err in granting summary
judgment in favor of Corporal Frost. Based upon McBride’s
violent history (of which the deputies were aware before
approaching McBride), McBride’s violent reaction to requests for
him to step outside, and the undisputed scuffle in which McBride
engaged with the officers, Corporal Frost used reasonable force
to prevent serious bodily injury to themselves or to others and
also to prevent McBride from escaping. See Tarver v. City of
Edna, 410 F.3d 745, 753 (5th Cir. 2005). This court will not
second-guess the deputies concerning a situation in which they
had to make split-second, on-the-scene decisions while confronted
with a violent individual. See Wagner v. Bay City, Tex., 227
F.3d 316, 321 (5th Cir. 2000). Corporal Frost is entitled to

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No. 06-30146
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qualified immunity based upon the undisputed facts viewed in the
light most favorable to McBride.
The district court also did not err in granting summary
judgment on McBride’s property loss claim. Although McBride’s
property loss was more than de minimis, his constitutional rights
have not been violated by Corporal Frost’s damaging his gold
chain because Louisiana affords McBride due process by providing
a post-deprivation remedy. See La. Civ. Code art. 2315 (West
Supp. 2006).
Further, McBride is not entitled to relief regarding the
privacy, due process, “contra bonos mores” and First Amendment
claims because he failed to raise these claims in the district
court. See Black v. North Panola School Dist., 461 F.3d 584, 593
(5th Cir. 2006) (citing Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999)). McBride’s pro se status does not
excuse him from this pleading requirement. See Grant v. Cuellar,
59 F.3d 523, 524-25 (5th Cir. 1995).
Finally, because McBride is not entitled to appointment of
counsel for his § 1983 claims and he has failed to demonstrate
exceptional circumstances, the district court did not err in
denying him appointment of counsel. See Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982). For the same reason, McBride’s
request for appointment of appellate counsel is denied. See
Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994).
AFFIRMED. Motion DENIED.

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