Hewitt McLennan, Jr. v. Michael Burke
UNPUBLISHED OPINION FILED. [10-50586 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 06/06/2011 [10-50586]
Case: 10-50586 Document: 00511478190 Page: 1 Date Filed: 05/16/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
May 16, 2011
Lyle W. Cayce
HEWITT MCLENNAN, JR.,
MICHAEL R. BURKE,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CV-327
Before WIENER, PRADO, and OWEN, Circuit Judges.
Hewitt McLennan, Jr., filed suit pursuant to 42 U.S.C. § 1983 against
Austin Police Officers Michael R. Burke, William Norell, and Joshua Simpson.
The United States District Court for the Western District of Texas dismissed
McLennan’s claims against Norell and Simpson as frivolous, pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). The court also granted summary judgment in Burke’s
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Case: 10-50586 Document: 00511478190 Page: 2 Date Filed: 05/16/2011
Officers Norell and Simpson arrested McLennan for theft, specifically for
unauthorized use of a motor vehicle. McLennan was later indicted by a Texas
grand jury for the offense of “theft—unauthorized use of vehicle.” McLennan did
not post bail, and was jailed pending trial for five months and ten days. He was
later found not guilty by a jury in state court.
He subsequently filed suit in federal court, pursuant to § 1983, alleging
false arrest and false imprisonment and seeking damages. McLennan alleged
that Norell and Simpson arrested him without a warrant and without probable
cause. He accused Burke of swearing a false affidavit in securing a warrant for
his arrest. The district court granted McLennan’s application to proceed in
forma pauperis (IFP).
After adopting the report and recommendations of the magistrate judge
to whom McLennan’s complaint had been referred, the district court dismissed
McLennan’s claims against Norell and Simpson as frivolous.1 The district court
then issued a summons for Burke, which was returned executed. Burke did not
file an answer or otherwise make an appearance in the action. The clerk of the
court made an entry of default against Burke.
The court granted in part
McLennan’s motion for default judgment, granting McLennan’s request for a
hearing on damages. Burke then filed a motion to set aside entry of default,
which the court granted. After considering McLennan’s and Burke’s crossmotions for summary judgment, the court granted summary judgment in favor
of Burke, and dismissed with prejudice McLennan’s claims against him.
McLennan, acting pro se, purports to appeal the court’s dismissal of his
claims against Norell and Simpson, but this court lacks jurisdiction to review
that issue. He also appeals the district court’s decision to set aside the entry of
See 28 U.S.C. § 1915(e)(2)(B)(i).
Case: 10-50586 Document: 00511478190 Page: 3 Date Filed: 05/16/2011
default against Burke and the court’s summary judgment in his favor, which we
consider on the merits and affirm.
McLennan filed a notice of appeal with the district court, stating only that
he was appealing the district court’s “final judgment granting Cross-Motion for
Summary Judgment entered in action on the 18th day of May, 2010,” and
naming Burke as the only defendant–appellant. The final judgment referred to
in the notice of appeal dismissed with prejudice McLennan’s claims against
Burke. In his brief to this court, McLennan claims that the district court erred
in dismissing as frivolous his claims against Officers Norell and Simpson. That
dismissal was made final by the district court’s order of August 1, 2008. We do
not have jurisdiction to review that decision by the district court because
McLennan’s notice of appeal did not apprise this court of his intention to appeal
McLennan argues that the district court erred in setting aside the entry
of default against Burke. A district court may set aside an entry of default for
good cause.3 We review the district court’s ruling for abuse of discretion.4 In
determining whether there was good cause to set aside an entry of default, this
court considers several factors, including “whether the default was willful,
See FED . R. APP . P. 3 (permitting appeals from a judgment by the district court only
when a notice of appeal is timely filed with the district court, and requiring the notice of
appeal to “designate the judgment . . . being appealed”); C.A. May Marine Supply Co. v.
Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. July 1981) (per curiam) (holding that, even
under a liberal construction of notices of appeal, when “the appellant notices the appeal of a
specified judgment only or a part thereof, . . . this court has no jurisdiction to review other
judgments or issues which are not expressly referred to and which are not impliedly intended
Lacy v. Sitel Corp., 227 F.3d 290, 291-92 (5th Cir. 2000).
Id. at 292.
Case: 10-50586 Document: 00511478190 Page: 4 Date Filed: 05/16/2011
whether setting it aside would prejudice the adversary, and whether a
meritorious defense is presented.” 5
recommendation, in which the judge properly applied the standard for setting
aside the entry of default. Burke showed that the default was inadvertent, that
the only prejudice to McLennan was to require him to prove his case,6 and that
Burke had a meritorious defense. The district court did not abuse its discretion
in setting aside the entry of default against Burke.
McLennan also contends that the district court erred in granting summary
judgment in favor of Burke on McLennan’s § 1983 claims. We review a grant of
summary judgment de novo, applying the same legal standards applied by the
district court and viewing the evidence in the light most favorable to the
nonmoving party.7 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.” 8
McLennan filed a motion for partial summary judgment. The district
court construed Burke’s response as a cross-motion for summary judgment. We
thus consider each motion separately “because each movant bears the burden of
Id. (internal quotation marks and footnote omitted).
See id. at 293 (“There is no prejudice to the plaintiff where the setting aside of the
default has done no harm to plaintiff except to require it to prove its case.” (internal quotation
Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel, L.L.C., 620 F.3d 558, 561-62 (5th
FED . R. CIV . P. 56(a).
Case: 10-50586 Document: 00511478190 Page: 5 Date Filed: 05/16/2011
showing that no genuine issue of material fact exists and that it is entitled to a
judgment as a matter of law.” 9
McLennan alleged that he was falsely arrested and falsely imprisoned, in
violation of his Fourth Amendment right to be free of illegal searches and
seizures, and sought damages pursuant to § 1983. He claimed that Burke
violated his constitutional rights by knowingly giving false information in an
arrest warrant affidavit. The district court adopted the magistrate judge’s
report and recommendation regarding the cross-motions for summary judgment.
The court concluded that McLennan had pointed to no evidence showing that
Burke’s affidavit contained false information or that Burke had otherwise acted
improperly in obtaining the warrant.10 The court also concluded that Burke had
cited to evidence showing that McLennan did not establish a constitutional
violation, and, in the alternative, that Burke would be entitled to qualified
immunity even if McLennan could establish such a violation.
After reviewing the record, we agree with the district court.
presented evidence that the statements in his warrant affidavit were not
knowingly false and that there was probable cause for McLennan’s arrest. Other
than his own allegations and conclusory assertions, which are insufficient as a
matter of law,11 McLennan presented no evidence that Burke’s affidavit
contained knowingly false statements. In the face of Burke’s evidence to the
contrary, and without evidence of a false arrest or false imprisonment,
McLennan did not establish a genuine dispute regarding his allegation of a
Am. Int’l Specialty Lines Ins. Co., 620 F.3d at 562.
See FED . R. CIV . P. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to particular parts of materials in the
record . . .; or (B) showing that the materials cited do not establish the absence or presence of
a genuine dispute . . . .”).
See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d
1527, 1533 (5th Cir. 1994).
Case: 10-50586 Document: 00511478190 Page: 6 Date Filed: 05/16/2011
constitutional violation by Burke.12 McLennan’s motion for partial summary
judgment against Burke was properly denied, and the district court properly
granted Burke’s cross-motion for summary judgment.
See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (“The
constitutional claim of false arrest requires a showing of no probable cause.”).
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