Patrick Smith v. Robert Roe, et al

Filing

UNPUBLISHED OPINION FILED. [12-40761 Affirmed ] Judge: WED , Judge: LHS , Judge: SAH Mandate pull date is 05/05/2014 [12-40761]

Case: 12-40761

Document: 00512595121

Page: 1

Date Filed: 04/14/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 12-40761
Summary Calendar

FILED
April 14, 2014
Lyle W. Cayce
Clerk

PATRICK BERNARD SMITH,
Plaintiff-Appellant
v.
Sergeant MICHAEL OLSEN; ROBERT D. ROE; Officer PENELOPE
BARNES, also known as Penelope R. Burnes; KEVIN L CARLVIN;
Correctional Officer JESSE L. DAVIS; Correctional Officer DOMENICO
DEPALMA; Correctional Officer ERIC A. MCCLENDON; Correctional Officer
GREG S. VICKERY; Correctional Officer DAVID K. WRIGHT; NANCY J.
YOUNG; DONNA STEELY,
Defendants-Appellees
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:10-CV-243
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Patrick Bernard Smith, Texas prisoner # 896428, is serving a life
sentence for murder. He appeals the dismissal of his 42 U.S.C. § 1983 action

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 12-40761
against employees of the Beto Unit of the Texas Department of Criminal
Justice where Smith was briefly confined in early 2009.
Smith alleged that he was denied adequate treatment for his injured
knees and then subjected to excessive force after he complained about a
perceived lack of proper attention. By consent, the case was referred to the
magistrate judge for a final decision.

In 2012, the defendants moved for

summary judgment on the merits. Smith declined to address the summary
judgment motion and said he did not need to do so.

The court granted

summary judgment and dismissed all claims.
The court concluded that “the undisputed competent summary judgment
evidence shows that the medical defendants provided appropriate care and
were not deliberately indifferent to [Smith’s] medical needs.” The court also
determined that a video recording showed that no defendant used excessive
force when removing Smith from the prison infirmary after he pulled down his
pants, sat on the floor, and refused to move. All other colorable claims, liberally
construed, were likewise dismissed on the uncontested summary judgment
evidence.
We review de novo a grant of summary judgment. Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012). “Summary judgment is proper
if the pleadings and evidence show there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Id.; see FED
R. CIV. P. 56(a). To defeat summary judgment, the nonmovant must set forth
specific facts showing the existence of a genuine issue for trial. FED. R. CIV.
P. 56(c)(1). Speculation, unsupported assertions, and conclusory allegations
are inadequate to defeat a motion for summary judgment. Hernandez, 670
F.3d at 660. Nor can Smith overcome summary judgment by merely resting

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on the allegations of his pleadings. See Duffie v. United States, 600 F.3d 362,
371 (5th Cir. 2010).
Smith offers only generic statements of law and conclusional factual
assertions, scattered throughout his briefs. Even when Smith’s contentions
are construed with utmost liberality, they do not challenge any specific ruling
by pointing to summary judgment evidence creating a contested issue of
material fact. Indeed, Smith declined to offer such evidence in the district
court. At best, Smith reiterates the allegations of his pleadings, which cannot
overcome summary judgment. See Duffie, 600 F.3d at 371. “It is not our duty
to scrutinize the record” in order to find facts supporting Smith’s appeal.
Hernandez, 670 F.3d at 659.
Because Smith has identified “no genuine dispute as to any material
fact,” summary judgment was proper. FED R. CIV. P. 56(a). The judgment of
the district court is AFFIRMED. All motions are DENIED.

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