Jason Weathers v. Ruth Cano

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Jason Weathers v. Ruth Cano Doc. 0 Case: 09-40947 Document: 00511216531 Page: 1 Date Filed: 08/26/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-40947 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk J A S O N WEATHERS, P la in t if f -A p p e lla n t v. R U T H CANO, D e fe n d a n t -A p p e lle e A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:08-CV-54 B e fo r e KING, DeMOSS, and CLEMENT, Circuit Judges. P E R CURIAM:* J a s o n Weathers, Texas prisoner # 1358550, appeals the district court's g r a n t of summary judgment in favor of defendant Ruth Cano, denial of W e a t h e r s 's motion for judgment, and dismissal of Weathers's 42 U.S.C. 1983 c o m p la in t . Weathers's complaint alleged that on June 7, 2007, he was involved in a physical altercation with another inmate, Larry Burr. Both Burr and W e a t h e r s were seen throwing punches at each other. Following the altercation, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40947 Document: 00511216531 Page: 2 No. 09-40947 Date Filed: 08/26/2010 b o th Burr and Weathers signed a document stating that they were not in fear o f safety and did not require protection. F o u r days later, on June 11, 2007, Weathers and Burr were placed in the s a m e holding cell in G-Building while awaiting an appearance before the Unit C la s s ific a tio n Committee. Although Weathers did not allege that another p h y s ic a l altercation occurred, he contended that a female guard, identified as J a n e Doe in his original complaint, violated his constitutional rights by failing t o protect him from Burr. Weathers informed the guard of the previous a lt e r c a t io n and stated that he did not want to be placed in the same cell. The g u a r d ignored his complaint and placed him in the cell, after which she left the area. W e a t h e r s was unaware of the identity of the female guard at the time he file d suit, but subsequently identified Ruth Cano as the defendant. The id e n tific a t io n process involved two photographs provided by the Assistant A t to r n e y General, working with prison personnel to determine who might have b e e n on duty on the day in question that matched Weathers's description. The p h o to g r a p h s were presented to Weathers, and from them he selected Cano as the fe m a le guard. Cano moved for summary judgment, arguing that she was not p e r s o n a lly involved in the incident. She submitted her affidavit and a personal c a le n d a r indicating that she was not working in the G-Building on June 11, 2 0 0 7 . Based on Cano's evidence and the lack of countervailing evidence from W e a t h e r s , the district court granted Cano's summary judgment motion, finding t h a t she was not personally involved. The district court alternatively found that, if she had been involved, Cano was entitled to qualified immunity. T h e district court did not err in granting summary judgment in favor of C a n o . She presented evidence that she was not personally involved and showed t h e r e was no genuine issue as to identity. See Little v. Liquid Air Corp., 37 F.3d 1 0 6 9 , 1075 (5th Cir. 1994) (en banc). Weathers did not present any rebuttal e v id e n c e or challenge her assertion that she was not working in the G-building 2 Case: 09-40947 Document: 00511216531 Page: 3 No. 09-40947 Date Filed: 08/26/2010 o n June 11, 2007. Weathers failed to set forth specific facts showing the e x is t e n c e of a genuine issue for trial. See id.; FED. R. CIV. P. 56(e). M o r e o v e r , if Cano had been involved, she was entitled to qualified im m u n it y . Weathers did not show that she violated his constitutional rights. See Lytle v. Bexar County, Tex., 560 F.3d 404, 410 (5th Cir. 2009). There was no in d ic a tio n of a substantial risk of harm. See Adames v. Perez, 331 F.3d 508, 512 (5 t h Cir. 2003); Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Weathers h a d signed a form indicating that he did not fear his safety and did not require p r o te c tio n . Weathers contends that the district court erred in failing to grant his m o t io n for default judgment. He argues that Cano failed to submit a timely joint p r e t r ia l order in accordance with the district court's order establishing deadlines a n d that Cano's failure to oppose his motion to amend his complaint entitled him t o a default judgment. Weathers's argument is without factual or legal support. Cano was under no obligation to submit a joint pretrial order because she timely file d a dispositive motion in accordance with the order setting deadlines. Additionally, the failure to oppose a motion to amend his complaint to include a d d it io n a l requests for relief does not equate with a failure to answer the c o m p la in t. W e a t h e r s also argues that the district court erred in denying his motion fo r the appointment of counsel. The issues in this case were not complex. Weathers demonstrated an ability to present and investigate his case. The e v id e n c e submitted was not complex. Thus, the district court did not abuse its d is c r e tio n in denying Weathers's motion for the appointment of counsel. See B a r a n o w s k i v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Ulmer v. Chancellor, 691 F .2 d 209, 212-13 (5th Cir. 1982). T h e judgment of the district court is AFFIRMED. 3

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