Unpublished Dispositionsean Walsh, Plaintiff-appellant, v. James Yarborough, Ray Beard, Defendants-appellees, 859 F.2d 153 (6th Cir. 1988)

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and RICHARD B. McQUADE, Jr., District Judge.^* 

ORDER

This pro se Michigan prisoner, Sean Walsh, appeals the judgment of the district court dismissing his civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Walsh filed suit against the prison's superintendent and a corrections officer alleging that Corrections Officer Marvin Baird assaulted him. The district court dismissed Superintendent Yarborough pursuant to Fed. R. Civ. P. 12(b) (6), and granted summary judgment in favor of Officer Baird.

On appeal, Walsh abandons his claim that defendant James Yarborough violated his civil rights. Walsh does argue that the district court's grant of summary judgment in favor of defendant Baird is improper because he did not know that he had to establish a material issue of fact in order to overcome defendant Baird's proof of the absence of any issues of material fact.

The district court granted summary judgment in favor of defendant Baird because Walsh, although filing a motion for summary judgment, failed to contradict defendant Baird's proof that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law.

Upon review, we conclude that the district court did not err in granting summary judgment in favor of defendant Baird. Walsh improperly rested on his pleadings and failed to contradict in any manner the showing made by Baird. Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1982); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir. 1986).

Accordingly, the judgment of the district court is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit. Plaintiff's motion for the appointment of counsel is denied.