Odell Ewing v. J. Silviou

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cv-00064-F Copies to all parties and the district court/agency. [999546115]. Mailed to: Odell Ewing. [14-7495]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7495

ODELL EWING,
Plaintiff – Appellant,
v.
J. A. SILVIOUS, Officer of Raleigh Police Department,
Defendant – Appellee,
and
K. KINNEY, Officer of Raleigh Police Department; RALEIGH
POLICE DEPARTMENT,
Defendants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:11-cv-00064-F)

Submitted:

February 27, 2015

Decided:

March 16, 2015

Before GREGORY, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Odell Ewing, Appellant Pro Se. Dorothy Kibler Leapley, Deputy
City Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Odell Ewing filed a 42 U.S.C. § 1983 (2012) action against
the Raleigh Police Department and Officers J.A. Silvious and K.
Kinney.

After the district court dismissed Ewing’s claims as

frivolous,

we

affirmed

the

dismissal

in

part,

modified

to

reflect that the dismissal of claims challenging his conviction
was without prejudice.

Ewing v. Silvious, 481 F. App’x 802, 802

(4th Cir. 2012) (No. 11-7683).
court’s

ruling

regarding

We vacated in part the district

Ewing’s

claim

of

excessive

against Silvious and remanded for further proceedings.
803.

force
Id. at

Following discovery and the parties’ cross-motions for

summary judgment on remand, the district court granted summary
judgment for Silvious.

Ewing now appeals the district court’s

order granting summary judgment in Silvious’ favor and denying
Ewing’s motions for appointment of counsel, to compel, 1 and for
sanctions against Silvious.
We
rulings

review
on

for

Ewing’s

abuse

of

discretion

discovery

appointment of counsel.

motions

the

district

and

his

court’s

motion

for

Kolon Indus. Inc. v. E.I. DuPont de

Nemours & Co., 748 F.3d 160, 172 (4th Cir.) (discovery rulings),

1

Although Ewing asserts that the district court failed to
address his motion to compel, the court in fact denied the
motion—which it characterized as Ewing’s motion for discovery—as
moot.

2

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cert. denied, 135 S. Ct. 437 (2014); Miller v. Simmons, 814 F.2d
962, 966 (4th Cir. 1987) (denial of counsel).

We review de novo

a district court’s order granting summary judgment, “viewing the
evidence in the light most favorable to the non-moving party.”
Educ. Media Co. at Va. Tech., Inc. v. Insley, 731 F.3d 291, 297
(4th Cir. 2013).

Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“unless

there

is

A genuine issue for trial does not exist

sufficient

evidence

favoring

the

nonmoving

party for a jury to return a verdict for that party.”

Newport

News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423,
434 (4th Cir. 2011) (internal quotation marks omitted).
We have reviewed the record in light of these principles
and

find

no

reversible

error.

Accordingly,

we

affirm

substantially for the reasons stated by the district court. 2

2

Ewing attempts to challenge the validity of his
convictions on appeal.
As we recognized in Ewing’s prior
appeal, his claims are barred because he has not shown that his
convictions have been overturned or called into question.
See
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Ewing, 481 F.
App’x at 802.
Additionally, insofar as Ewing asserts that the
district judge was biased against him, we find nothing in the
record to support Ewing’s bald assertion, as his arguments are
based solely on his disagreement with the district court’s
substantive rulings. See Liteky v. United States, 510 U.S. 540,
555 (1994) (recognizing that judicial rulings alone are invalid
basis for bias or partiality motion).

3

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Ewing

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v.

2014).
legal
before

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Silvious,

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5:11-cv-00064-F

(E.D.N.C.

Sept.

30,

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

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