Georgia McCoy v. Lowndes County, Mississippi, et al

Filing 511133460

Georgia McCoy v. Lowndes County, Mississippi, et al

Doc. 511133460

Case: 09-60774

Document: 00511133460

Page: 1

Date Filed: 06/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 7, 2010 N o . 09-60774 S u m m a r y Calendar Lyle W. Cayce Clerk

G E O R G I A MAYE MCCOY, individually and on behalf of the wrongful death b e n e fic ia r ie s of N.S. Gordon, Jr., Plaintiff - Appellant v. L O W N D E S COUNTY, MISSISSIPPI; OFFICER MARC WILEY, in his official a n d individual capacities; OFFICER ARCHIE WILLIAMS, in his official and in d iv id u a l capacities; SHERIFF C. B. (BUTCH) HOWARD, in his official and in d iv id u a l capacities, Defendants - Appellees

A p p e a l from the United States District Court for the Northern District of Mississippi U S D C No. 1-08-CV-144

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* T h e plaintiff, Georgia Maye McCoy, appeals the district court's grant of s u m m a r y judgment against her claim under 42 U.S.C. § 1983 seeking damages

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 09-60774

Document: 00511133460

Page: 2

Date Filed: 06/07/2010

No. 09-60774 f o r the death of her son, Nick Gordon.1 Having reviewed the parties' arguments a n d the record in this case, we conclude that the district court committed no r e v e r s i b le error. The district court did not abuse its discretion by deciding s u m m a ry judgment without further discovery, as the plaintiff asked for no fu r th e r discovery and the plaintiff points to no prejudice from the lack of further d is c o v e r y . Turning to the merits of the summary judgment decision, the

e v id e n c e shows that no reasonable jury could conclude that the officers used e x c e s s iv e force. There were only three witnesses to the altercation, the officers a n d a third-party witness. All agree that the altercation lasted approximately fo u r to five minutes and that the officers initially approached Gordon at the top o f a staircase after Gordon refused to come down. The officers say Gordon had a nail gun, which they told him drop, and the witness confirmed that they told h im to drop whatever he was holding, though she was unsure what the object w a s . When Gordon refused, the officers tased him. A fight ensued. The witness s a id she saw Gordon strike one officer in the head with the object, causing blood t o pour from the officer's head. After successive blows, the officer was unable to g e t up. Gordon also hit the other officer multiple times, causing him to stagger. A ft e r the fight continued some more, the officer fired his gun at Gordon twice, a t which point Gordon took another swing at the officer. No reasonable jury c o u ld conclude the force in this case was excessive. Accordingly, the county and t h e individual defendants are entitled to summary judgment. T h e judgment of the district court is A F F IR M E D .

The district court also granted summary judgment on state-law claims, but McCoy does not appeal the dismissal of those claims. Further, we do not address McCoy's contention that her son's rights under the Americans with Disabilities Act were violated, as this claim was never presented to the district court.

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