Timothy Grant v. John Wisener , 594 F. App'x 278 ( 2015 )

Case: 13-40739 Document: 00512951966 Page: 1 Date Filed: 02/27/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-40739
Fifth Circuit
FILED
Summary Calendar February 27, 2015
Lyle W. Cayce
TIMOTHY GRANT, Clerk
Plaintiff-Appellant
v.
DANNY TALIAFERRO; CORBETT RANDALL; DAN GANNON,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:11-CV-372
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Timothy Grant, Texas prisoner # 01198238, appeals the district court’s
grant of summary judgment for Danny Taliaferro and Corbett Randall and the
district court’s denial of his Federal Rule of Civil Procedure 59 motions in his
42 U.S.C. § 1983 suit. While Grant indicated his intent to appeal the dismissal
of Dan Gannon as well, he makes no arguments as to this defendant and has
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40739 Document: 00512951966 Page: 2 Date Filed: 02/27/2015
No. 13-40739
abandoned review of his claims against Gannon. See FED. R. APP. P.
28(a)(8)(A); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Grant argues that a strip search conducted while he was in the prison
library was unreasonable and that the defendants are not entitled to qualified
immunity. Grant further argues that the district court should have extended
his deadline to file objections to the magistrate judge’s report and
recommendation and given him 10 days of notice under Federal Rule of Civil
Procedure 56(c) before entering final judgment. Grant also moves for a stay of
the appeal and remand to the district court so that an affidavit from Warden
John Rupert can be included in the summary judgment record.
We review a grant of summary judgment de novo, using the same
standard as that employed by the district court. Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011). When determining if a defendant is entitled
to qualified immunity, we evaluate “(1) whether the plaintiff has alleged a
violation of a clearly established constitutional right; and (2) if so, whether the
defendant’s conduct was objectively unreasonable in the light of the clearly
established law at the time of the incident.” Stidham v. Tex. Comm’n on
Private Sec., 418 F.3d 486, 490 (5th Cir. 2005) (internal quotation marks and
citation omitted). Great deference is owed to a prison official’s determination
that an action is reasonable under the circumstances. Elliott v. Lynn, 38 F.3d
188, 191 (5th Cir. 1994).
The defendants’ conduct was not objectively unreasonable in light of the
clearly established law at the time of the search. See McCreary v. Richardson,
738 F.3d 651, 657 (5th Cir. 2013); see also Bell v. Wolfish, 441 U.S. 520, 558-59
(1979). Accordingly, the district court did not err by concluding that the
defendants are entitled to qualified immunity.
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Case: 13-40739 Document: 00512951966 Page: 3 Date Filed: 02/27/2015
No. 13-40739
Grant’s argument that the district court was required to give him 10 days
of notice before entering final judgment is without merit. See FED. R. CIV. P.
56. In any case, Grant had ample notice and opportunity to respond to the
defendants’ motion for summary judgment.
Finally, there is no reason to remand the case. Although the Rupert
affidavit was not in the record, the district court accepted as true Grant’s
statement of what the Rupert affidavit contained—that there was no record of
a unit-wide shakedown—and nevertheless concluded that it did not alter the
outcome. For the same reason, the district court’s denial of any further
extension of the deadline to file objections to the report and recommendation
was not an abuse of discretion. See Geiserman v. MacDonald, 893 F.2d 787,
793 (5th Cir. 1990). The district court likewise did not abuse its discretion by
denying Grant’s Rule 59 motions. See St. Paul Mercury Ins. Co. v. Fair
Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997).
Accordingly, the judgment of the district court is AFFIRMED. The
motion to stay the appeal and remand is DENIED.
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