Clay Shadley v. Earl Grimes, et al


UNPUBLISHED OPINION FILED. [10-60250 Affirmed] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 01/07/2011; denying motion authorize prep of transcript at government expense filed by Appellant Mr. Clay Randolph Shadley [6588324-2] [10-60250]

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Clay Shadley v. EarlCase: 10-60250 Grimes, et al Document: 00511325079 Page: 1 Date Filed: 12/17/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-60250 S u m m a r y Calendar December 17, 2010 Lyle W. Cayce Clerk C L A Y RANDOLPH SHADLEY, P la in t if f -A p p e lla n t v. E A R L GRIMES, Investigator; S H O E M A K E R , Detective, KEITH WILDING, Officer; DAVID 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 Mississippi U S D C No. 1:08-CV-83 B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* C la y Randolph Shadley appeals the summary judgment dismissal of his 4 2 U.S.C. 1983 complaint against Biloxi Police Department Officers Earl G r im e s , Keith Wilding, and David Shoemaker for false arrest arising out his a r r e s t for the armed robbery of Kent Johnson. The claims were dismissed b e c a u s e the arrest was effectuated pursuant to a valid arrest warrant and there w a s probable cause for the arrest. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-60250 Document: 00511325079 Page: 2 Date Filed: 12/17/2010 No. 10-60250 S h a d le y 's briefs are convoluted, but he appears to contend that Grimes fa ile d to conduct an adequate investigation before obtaining a warrant. For s u p p o r t , Shadley appears to argue that an investigation would have revealed t h a t money was withdrawn from Johnson's bank account before the alleged r o b b e r y took place and Johnson's injuries were less severe than they were r e p o r t e d or appeared to be. Shadley also appears to argue that Johnson was not a credible witness and complainant because he waited three days to report the a lle g e d robbery; claimed initially that he was involved in an altercation and later t h a t he was robbed; said he was robbed at Shadley and his girlfriend's house, but S h a d le y and his girlfriend were homeless; and stated that he voluntarily went w it h Shadley to see his dog even though Shadley had robbed him before. G r im e s averred that he did not know Shadley or know that he was h o m e le s s and believed there was probable cause for his arrest. Shadley's u n s u b s t a n t ia t e d belief otherwise fails to raise a genuine issue of material fact o n this point. Grimes also averred that nothing in Johnson's demeanor, a p p e a r a n c e , or account caused him to believe or suspect that he was wrong or ly in g . Based on this record, Shadley failed to show that Grimes's failure to in v e s t ig a t e further before obtaining a warrant amounts to "more than n e g lig e n c e ." Herrera v. Millsap, 862 F.2d 1157, 1160 (5th Cir. 1989); cf. Sanders v . English, 950 F.2d 1152, 1162 (5th Cir. 1992); see Simmons v. McElveen, 846 F .2 d 337, 338-39 (5th Cir. 1988). S h a d le y also contends that Shoemaker falsely testified before the grand ju r y that Shadley and his girlfriend broke Johnson's arm and ribs whereas the h o s p it a l records indicated that Johnson's arm was not broken and his ribs were p r e v io u s ly fractured. Shadley did not offer Shoemaker's grand jury testimony i n t o the record. Therefore, his conclusory assertion that Shoemaker falsely t e s t ifie d is insufficient to raise a genuine issue of material fact on this point. See S h ie ld s v. Twiss, 389 F.3d 142, 150 (5th Cir. 2004). 2 Case: 10-60250 Document: 00511325079 Page: 3 Date Filed: 12/17/2010 No. 10-60250 A s s u m in g that Shadley's assertions are true, he failed to raise a genuine is s u e of material fact as to whether the grand jury's deliberations were tainted b y Shoemaker's testimony. See id. The grand jury charged that Shadley and his g ir lfr ie n d caused serious bodily injury to Johnson "by breaking his arm and rib b o n e s ." The hospital records indicated that Johnson's right hand was fractured. It is unclear if Johnson's ribs had been recently broken, but he was diagnosed w it h a mild rib injury. Testimony that Johnson's arm and ribs were broken does n o t materially differ from evidence that Johnson's hand was fractured and ribs w e r e mildly injured. See Porter v. Farris, 328 F. App'x 286, 288 (5th Cir. 2009). Shadley asserts that Officer Lance Chisum stated he assisted taking J o h n s o n 's statement but no statement from Johnson was ever introduced. Similarly, he asserts that Wilding stated he assisted in Shadley's arrest but he w a s already in jail. Shadley appears to be referring to statements made by the B ilo x i Police Department on a witness list prepared for the armed robbery trial. Putting aside Shadley's failure to serve and add Chisum as a defendant, he fa ile d to allege a constitutional violation against him or Wilding. In addition, no c o n s t it u t io n a l violation based on these assertions is apparent from the record. Accordingly, summary judgment was properly granted on these claims. S h a d le y moves for production of the transcript of his armed robbery trial, a r g u in g the trial transcript is necessary to support his claims. Shadley did not o ffe r the transcript into the record in the district court. Because Shadley's m o t io n is predicated on expanding the appellate record, which we decline to p e r m it , the motion is DENIED. See McIntosh v. Partridge, 540 F.3d 315, 327 (5 t h Cir. 2008). T h e judgment of the district court is AFFIRMED. p r o d u c t io n of transcripts is DENIED. The motion for 3

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