Shermon Oby v. Robert Sturdivant, et al

Filing

UNPUBLISHED OPINION FILED. [13-60193 Affirmed ] Judge: WED , Judge: JES , Judge: FPB Mandate pull date is 08/27/2014 [13-60193]

Case: 13-60193

Document: 00512724097

Page: 1

Date Filed: 08/06/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60193

United States Court of Appeals
Fifth Circuit

FILED
August 6, 2014
Lyle W. Cayce
Clerk

SHERMON OBY,
Plaintiff–Appellant,
versus
LIEUTENANT ROBERT STURDIVANT;
LIEUTENANT EDWARD THIGPIN;
OFFICER MONTGOMERY; OFFICER FOSTER,
Defendants–Appellees.

Appeals from the United States District Court
for the Northern District of Mississippi
No. 4:10-CV-92

Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM: *
Shermon Oby, Mississippi prisoner #45397, claims a violation of his

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60193

Document: 00512724097

Page: 2

Date Filed: 08/06/2014

No. 13-60193
Eighth Amendment rights. Proceeding pro se and in forma pauperis, he sued,
pursuant to 42 U.S.C. § 1983, Lieutenant Robert Sturdivant, Lieutenant
Edward Thigpen, Officer Gordy Montgomery, and Officer Tony Foster, alleging
cruel and unusual punishment. He contends that the officers ordered him out
of his cell and beat him for about twenty minutes, after which Oby made a sickcall request complaining of being assaulted. Two days later he was seen by a
nurse who noted that Oby “had no cuts, abrasions, bruises, or any evidence of
being in an altercation.”
Default judgments were entered against Montgomery and Foster. Sturdivant and Thigpen, however, answered Oby’s complaint and moved for summary judgment. In support, they attached their affidavits denying any assault;
Oby’s medical records; and the affidavit of Dr. Lorenzo Cabe, who testified that
those records contained no evidence of a physical assault around the time
alleged. Oby submitted a response, but no additional evidence, in support of
his claims.
The district court granted summary judgment and dismissed; Oby
objected under Federal Rule of Civil Procedure 59(e), swearing under penalty
of perjury that the registered nurse had conducted an inadequate examination.
The district court denied that motion.
We have reviewed the briefs, the applicable law, and pertinent portions
of the record.

There is no reversible error.

The summary judgment is

AFFIRMED. The denial of relief under Rule 59(e) is also AFFIRMED.

2