Garcia, et al v. Contreras, et al

Filing 511159474

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Garcia, et al v. Contreras, et al Doc. 511159474 Case: 08-41182 Document: 00511159474 Page: 1 Date Filed: 06/30/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 08-41182 S u m m a r y Calendar June 30, 2010 Lyle W. Cayce Clerk E M E R I C O GARCIA; GLORIA GARCIA P la in t if f s - A p p e lla n t s v. A CONTRERAS, Officer (#172); MENDOZA, Detective; LONGORIA, Officer; G A R C I A , Officer (#077); RUIZ, Officer (#710); GARCIA, Officer (#708); K I R K P A T R I C K , Officer (#712); MCGEE, Officer (#711); GONZALEZ, Officer (# 0 7 1 ); CANTU, Officer; CISNEROS, Officer; KLEBERG COUNTY SHERIFF D E P A R T M E N T ; THE CITY OF KINGSVILLE; KLEBERG COUNTY D e fe n d a n t s -A p p e lle e s A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:07-CV-359 B e fo r e JOLLY, BARKSDALE, and CLEMENT, Circuit Judges. P E R CURIAM:* P r o c e e d in g pro se and in forma pauperis, Emerico and Gloria Garcia a p p e a l the dismissal of their 42 U.S.C. 1983 complaint. Liberally construing t h e ir brief, the Garcias contend that the district court erred in granting s u m m a r y judgment because they: had mailed a motion for an extension of time 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 08-41182 Document: 00511159474 Page: 2 No. 08-41182 Date Filed: 06/30/2010 t o respond to the summary judgment motion; and, were entitled to the services o f an interpreter. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citing H a in e s v. Kerner, 404 U.S. 519, 520 (1972)) (pro se briefs should be liberally c o n s t r u e d ). In district court, the Garcias contended defendants entered their home w it h o u t consent or a warrant, assaulted them, and shocked them with a Tazer g u n . The district court dismissed defendants associated with Kleberg County b a s e d on the Garcias' failure to effectuate timely service of process. For the r e m a in in g defendants, the district court granted summary judgment, ruling: none of the individual defendants violated the Garcias' constitutional rights; a n d , the Garcias failed to allege a City of Kingsville policy that resulted in a v io la t io n of their rights. (On appeal, the Garcias do not challenge the rationale b e h in d the district court's ruling on summary judgment. They also have failed t o brief any challenge to the district court's dismissal of some defendants for fa ilu r e to serve. Because the Garcias do not raise such challenges on appeal, t h e s e issues are deemed abandoned. See Brinkmann v. Dallas County Deputy S h e r iff Abner, 813 F.2d 744, 748 (5th Cir. 1987).) The Garcias' motion for additional time to respond to the summaryju d g m e n t motion was not filed until the day final judgment was entered. Therefore, the district court considered the motion a postjudgment motion for recon sid era t io n and denied it. Because the Garcias' motion failed to "`specifically e x p la in . . . how a continuance would enable'" them to present evidence of a g e n u in e issue of material fact, they were not entitled to a continuance. See A c c e s s Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 719 (5th Cir. 1999) (q u o tin g Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930 (5 t h Cir.1995)). Likewise, the district court did not abuse its discretion in d e n y in g the postjudgment motion. See Martinez v. Johnson, 104 F.3d 769, 771 (5 t h Cir. 1997). 2 Case: 08-41182 Document: 00511159474 Page: 3 No. 08-41182 Date Filed: 06/30/2010 T h e Garcias also appear to contend that they were entitled to the services o f an interpreter. The record belies any assertion that the Garcias did not u n d e r s t a n d English or that a lack of understanding of the English language p r e c lu d e d them from participating in the legal proceedings. To the extent they c o n t e n d their ignorance of the law and court procedures entitled them to the a s s is t a n c e of counsel, they have failed to show that exceptional circumstances w a r r a n te d such an appointment in a civil proceeding. Ulmer v. Chancellor, 691 F .2 d 209, 212 (5th Cir. 1982). AFFIRMED. 3

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