Dantzler v. Pope , 263 F. App'x 423 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 29, 2008
No. 07-30310
Summary Calendar Charles R. Fulbruge III
Clerk
OSCAR DANTZLER
Plaintiff-Appellant
v.
DEBBIE POPE; KATHY MONTICINO, individually and in her capacity as City
Councilman; NICKY MUSCARELLO, individually and in his capacity as City
Councilman; CURTIS WILSON, individually and in his capacity as City
Councilman; TONY LICCIARDI, individually and in his capacity as City
Councilman; WILLIE GRANT JACKSON, individually and in his capacity as
City Councilman; LANITA JOHNSON, individually and in her capacity as City
Councilman’s Secretary; HAMMOND CITY, Through the Mayor; MAYSON
FOSTER, individually and in his capacity as Mayor; HAMMOND POLICE
DEPARTMENT; RODDY DEVALL, individually and in his Official Capacity as
Chief of Police of the Hammond Police Department; HAMMOND MUNICIPAL
FIRE AND POLICE CIVIL SERVICE BOARD; JOSH FLETCHER, individually
and in his Official Capacity as Civil Service Board’s Chairman; GREGORY
LAWERENCE, individually and in his Capacity as Civil Service Board Member;
DAVID ATKINS, individually and in his Capacity as Civil Service Board
Member; JOHN PEARSON, individually and in his Capacity as Civil Service
Board Member; JANET DAVIS, Individually and in her capacity as Civil Service
Board Member; MARGARET BANKSTON, individually and in her capacity as
Board’s Secretary; ANDRE COUDRAIN, City Attorney, individually and in his
capacity as City Attorney; GUS A FRITCHIE, individually and in his capacity
as City Attorney; JOHN FEDUCCIA, individually and in his capacity as Civil
Service Board’s Attorney
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-2817
No. 07-30310
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Oscar Dantzler filed a Motion for Contempt of Court against Defendants.
Following an answer from Defendants and an amendment of Dantzler’s original
motion, Defendants filed a Motion for Summary Judgment. The court stayed the
proceedings while Plaintiff sought counsel. On January 29, 2007, Plaintiff filed
a motion to extend his time to respond to the summary judgment motion,
requesting that “Oscar Dantzler be granted an extension of thirty (30) days
within which to file a responsive pleading . . . or until the 21st day of February
2007.” The court granted this motion but later found that Plaintiff’s response
was not timely filed, as the court did not receive the motion until February 26,
2007. The court entered judgment for Defendants on March 1, 2007. The court
denied Plaintiff’s motion for reconsideration. Plaintiff appealed.
We are not persuaded by Plaintiff’s argument that he had a full thirty-day
extension to file his response and that the court erred in finding that his
response was untimely. The court’s order, signed on February 2, 2007,
contained a handwritten note stating, “The hearing on the Motion for Summary
Judgment is continued and reset for Feb. 28, 2007. The plaintiff’s opposition is
due on Wednesday, Feb. 21.” The clear language of the order showed a due date
of February 21, and the court did not receive the response until February 26.
We also fail to be persuaded by Plaintiff’s argument that the court erred
in granting summary judgment. “This Court reviews grants of summary
judgment de novo, applying the same standard as the district court.”1 “Summary
judgment is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. . . . A genuine issue of
*
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.
1
Templet v. Hydrochem, Inc., 367 F.3d 473, 477 (5th Cir. 2004).
2
No. 07-30310
material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-movant. Summary judgment is [also] appropriate
. . . if the non-movant ‘fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.’”2
Plaintiff has failed to establish an essential element of his case, namely,
that he was a party to the case resulting in the court order that he claims
Defendants violated. Rather, Plaintiff drew a line through the name of an
apparent plaintiff from that case and inserted his own.
AFFIRMED. Plaintiff’s motions for costs and sanctions are DENIED.
2
Id. at 477 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations
omitted)).
3