McGrew v. Fraizier et al, No. 7:2008cv00064 - Document 28 (N.D. Tex. 2009)

Court Description: Memorandum Opinion and Order Granting 24 Motion for Summary Judgment filed by Morgan C Frazier, Robert J Wainscott, Dee G Peevey. Defendant's motion for Summary judgment [Doc. #24] is granted. The court will dismiss this action with prejudice by final judgment filed today. (Ordered by Magistrate Judge Jeff Kaplan on 11/23/2009) (aps) Modified on 11/30/2009 (plp).

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IN THE TINITEDSTATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS WICHITA FALLS DIVISION JAMESEDWARD McGREW Plaintiff, NO. 7-08-CV-064-BD VS. MORGAN C. FRAZIER,ET AL. Defendants. $ MEMORANDUM | ORDER DefendantsMorgan Frazier, Robert Wainscott,and Dee Peeveyhiavefiled a motion for judgment in thispro se prisonercivil rights actionbroughtunder42 U.S.C. $ 1983. In his summary complaint, ptaintiff allegesthat Frazier, a correctional officer at the James V. Allred Unit of the force againsthim by striking his arm with a metal objectand by kicking TDCJ-CID, usedexcessive further injury to plaintiffs arm and shoulder. (See the tray slot door of his prison cell, which caused and throwing Wainscottof failing to preventthe assault Plf. Compl., Attch. at l). Plaintiff accuses unidentified objects at him, (seeid., Attach. at 1), and blamesPeeveyfor not providing him with prompt medical treatmentfor his injuries and for not taking disciplinaryaction againstFrazierand judgment on their qualified nowmove for summary Wainscott. (Seeid., Attch. atl-2). Defendants to immunity defense.rPlaintiff has filed a written response the motion, bulhas not submittedany judgment evidence.The issues havebeenbriefedby the parties,aridthe motion is ripe for summary determination. I Defendantsalso seeksummaryjudgment on the groundsthat plaintiff failed to exhaust remedies fris administrative plaintiff hasfailed to overcomethe defens of qualified immunity,the b minimis injury. Because and sustainedonly a de thesealternativegroundsfor dismissal. court neednot address Summaryjudgment is proper when there is no genuine issueas to any material fact and the movant is entitled to judgment as a matter of law. See Fpo. R. Clv. P. 56(c); Celotex Corp. v. issue exists L.Ed.2d265 (1986). A genuine 477 U ,5.317,322, 106S.Ct.2548,2552,91 I Catrett, jury could retum a verdict fol the nonmoving parfy." when "the evidenceis suchthat a reasonable glL.Ed.2d202(1986). Where, 1nc.,477!J.5.242,248,1063.Ct.2505, LibertyLobby, Andersonv. as here, a defendantpleads the affirmative defenseof qualified immunity and seekssummary by that judgment on that ground,"the burdenshiftsto the plaintiffto rebutthis defense establishing law." Brumfieldv. Hollins, 551 the official's allegedlywrongful conductviolatedclearlyestablished (5th Cir. 2001). F.3d322,326(sthCir. 2008),quotingBazanv. Hidalgo County,246F.3d481,489 A plaintiff may satisfu this burden by tendering depositions,affidavits, and other competent evidence. See Topalianv. Ehrman,954 F.2d I125, ll3l (lgg2). (5th Cir.), cert, denied, I l3 S.Ct. 82 The verified complaint and swom interrogatoryanswersof a pro se litigant can be considered as summary judgment evidence to the extent such pleadings comport with the of requirements Rule 56(e).2SeeKingv. Dogan,3l F.3d 344,346 (5th Cir. 1994). However,an unverified complaint doesnot constitutecompetentsummaryjudgment evidence. .Id. have pled the defenseof qualified immunity in their original answer. It is All defendants of by this defense identiffing genuineissues materialfact thereforeincumbenton plaintiff to negate law. in of in the recordregardingthe reasonableness defendants'conduct light of clearlyestablished Plaintiff has presentedno sunmary judgment evidencein an attempt to meet this burden. Nor can 2 Rule 56(e) provides,in pertinentpart: A supportingor opposingaffidavit must be made on personalknowledge,set out factsthat would be admissiblein evidence,and show that the afftant is competent to testifu on the matters stated. F E D . . C r v .P . 5 6 ( e X l ) . R judgment response, and the in the courtconsider allegations plaintiffspro se complaint summary to In neitherof which areswornpleadings. view of this failureof proof,the courtis constrained a violated either thatdefendants fact of issue material suggesting that conclude thereis no genuine in unreasonable light wereobjectively right,or thattheiractions constitutional clearlyestablished . in law of clearlyestablished at the time of the conduct question SeeBrumfield,551F.3dat 326; revised CapitalDus,Inc.,66 F.3d89,92(5thCir. 1995), Ltd. Highlands, v. lYashington McCallum of on other grounds,T0 F.3d 26 (SthCir. 1995)(in the absence proof court may not assufiethat the facts to defeat summaryjudgment)' nonmoving party could or would prove the necessary judgment theirqualified immunitydefbnse' on to entitled summary are Defendants therefore CONCLUSION this The for Defendants'motion summaryjudgment lDoc.#24lisgranted. courtwill dismiss filed today' by actionwith prejudice finaljudgment SO ORDERED. 23. DATED: November 2009. STATES I\'IAGISTRATH

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