Blackstock v. Johnson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 20, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51292
Summary Calendar
LARRY WAYNE BLACKSTOCK,
Plaintiff-Appellant,
versus
GARY JOHNSON; FIRST NAME UNKNOWN HARTNETT; SAMMY SEALE;
FIRST NAME UNKNOWN ESTES; ANTOINE BLANKENSHIP,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-1105
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Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Larry Wayne Blackstock, Texas inmate # 405623, proceeding
pro se and in forma pauperis (“IFP”), appeals the dismissal on
summary judgment of his 42 U.S.C. § 1983 complaint. Blackstock
does not challenge the magistrate judge’s determination that he
did not allege personal involvement on the part of defendants
Johnson and Hartnett, and he does not challenge the dismissal for
*
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that this opinion should not be published and is not precedent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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failure to prosecute of his claims against defendant Blankenship.
Accordingly, Blackstock has abandoned an appeal of the dismissal
of these claims. Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Blackstock contends that the magistrate judge erred by
granting summary judgment. He argues that a disputed issue of
material fact exists concerning whether Estes’ reading of the
grievance in front of an officer and another inmate caused the
assault. He asserts that the magistrate judge erred by
dismissing his conspiracy and retaliation claims and by refusing
to require the defendants to comply with the discovery requests.
We review a dismissal on summary judgment de novo.
Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992
F.2d 1398, 1401 (5th Cir. 1993). To defeat summary judgment, the
nonmovant must set forth specific facts showing the existence of
a genuine issue for trial; the nonmovant cannot meet his burden
with conclusional allegations, unsubstantiated assertions, or a
scintilla of evidence. FED. R. CIV. P. 56(e); Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The magistrate judge concluded that because Blackstock
admitted that Estes did not strike him, Estes could not have used
excessive force. The magistrate judge concluded, on the failure
to protect claim, that Blackstock did not make a sufficient
showing to survive summary judgment on the question whether Estes
acted with deliberate indifference to Blackstock’s safety, that
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Estes acted negligently, and that such conduct was not actionable
under 42 U.S.C. § 1983.
The record shows that in the analysis of the issues, the
magistrate judge treated the issue of fact that Blackstock
alleges is in dispute as a substantiated fact. Blackstock has
not demonstrated that a material fact is in dispute, and he has
not challenged sufficiently the magistrate judge’s reasons for
granting summary judgment on the excessive force and failure to
protect issues. FED. R. CIV. P. 56(e); Little, 37 F.3d at 1075.
Blackstock asserts that the magistrate judge erred by
dismissing his conspiracy and retaliation claims. Blackstock
asserts but has not shown that the defendants conspired and
retaliated against him for pursuing his right to file a
grievance. Blackstock’s personal beliefs and conclusional
allegations are not sufficient to establish actionable claims of
conspiracy and retaliation under 42 U.S.C. § 1983. Jones v.
Greninger, 188 F.3d 322, 325 (5th Cir. 1999); Wilson v. Budney,
976 F.2d 957, 958 (5th Cir. 1992).
Blackstock reiterates the issues that he raised against the
additional defendants who allegedly aided and abetted the
conspiracy. The magistrate judge dismissed these issues because
Blackstock did not seek leave to amend or supplement the
complaint, he did not comply with the deadline set by the
scheduling order, and he did not show that the issues had been
exhausted. Blackstock has not challenged the magistrate judge’s
No. 02-51292
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reasons for denying leave to amend or supplement and has
abandoned any such challenge. See Brinkmann, 813 F.2d at 748.
Finally, the record and Blackstock’s admission demonstrate
that Blackstock did not serve timely discovery requests. The
scheduling order required the completion of discovery on or
before July 29, 2002, and that written discovery be served “to
allow the responding party at least thirty days (thirty-three
days if served by mail) to respond before the close of
discovery.” The order provided that the “responding party [did]
not have any obligation to respond to written discovery if the
response to the requested discovery would be due after the close
of discovery.”
Blackstock admitted that he served admissions on July 26,
2002. He did not comply with the scheduling order, and he did
not seek leave to extend the discovery period.
Blackstock has not shown error in the grant of summary
judgment that dismissed his complaint. Accordingly, the judgment
is AFFIRMED.
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