Carson v. Perry ( 1996 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-40551
(Summary Calendar)
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ARTHUR W CARSON,
Plaintiff-Appellant,
versus
OLGA A PERRY; TDC INMATE TRUST FUND,
Defendants-Appellees.
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Appeal from the United States District Court
For the Eastern District of Texas
6:92-CV-506
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June 6, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Arthur W. Carson appeals the district court's grant of the
defendants' motion for summary judgment in Carson's 42 U.S.C.
§ 1983 action regarding the withdrawal of funds from his prison
trust fund account.1 We affirm the judgment of the district court.
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
1
Carson alleged in his suit that his constitutional rights were
violated based on errors that occurred involving his prison trust fund account.
The district court granted the defendants' motion for summary judgment because
the court found that Carson did not experience any monetary loss as a result of
We review a district court's grant of summary judgment de novo
applying the same standard as the district court. Resolution Trust
Corp. v. Camp, 965 F.2d 25, 28 (5th Cir. 1992). Summary judgment
is appropriate if there is no dispute as to a material fact, and
the moving party is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(c). When a party moves for summary judgment, the
nonmoving party must either submit facts to establish that the
moving party's allegations are questionable, or demonstrate that
the allegations are not properly supported. Camp, 965 F.2d at 29.
Carson pursues the later course by arguing that the affidavit
which accompanied the defendants' motion was insufficient summary
judgment evidence. Specifically, Carson contends that the
affidavit contained hearsay, was prepared in anticipation of
litigation, and was not based on the affiant's personal knowledge.
FED. R. CIV. P. 56(e) provides that "affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein."
We have held that an affidavit can adequately support a motion for
summary judgment when the affiant's personal knowledge is based on
a review of her employer's business records and the affiant's
position with the employer renders her competent to testify on the
particular issue which the affidavit concerns. See F.D.I.C. v.
these errors.
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Selaiden Builders, Inc., 973 F.2d 1249, 1254-55 n.12 (5th Cir.
1992) (lawsuit involving promissory notes), cert. denied, 507 U.S.
1051, 113 S. Ct. 1944, 123 L. Ed. 2d 650 (1993); Camp, 965 F.2d at
29 (same). We will be particularly reluctant to reverse a summary
judgment based on such an affidavit when there is no reason for the
court to doubt the veracity of the affiant's testimony. See Camp,
965 F.2d at 29 (stating that the court "would not hesitate to
reverse summary judgment had Appellants pointed to evidence in the
record to the effect that they had a legitimate fear" that the
affiant's testimony concerning a promissory note was untrue). We
see no reason not to apply this pragmatic approach to this case.
The defendants' motion for summary judgment was supported by
an affidavit from John Michael Turner. Turner testifies in his
affidavit that as the Assistant Director for Local Funds at the
Texas Department of Criminal Justice, Institutional Division
("TDCJ-ID"), he is charged with the supervision of the Education
and Recreation Accounting Department and Inmate Trust Fund of TDCJ-
ID. Turner further states that he is the custodian of the inmate
trust fund records, which are maintained in the regular course of
business on each inmate incarcerated in the TDCJ-ID. Based on his
review of Carson's inmate trust fund records for the disputed time
period, Turner then details the series of transactions that
occurred involving Carson's account. Turner explains in the
affidavit that although the TDCJ-ID's accounting system is
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confusing and errors did occur with Carson's account, the errors
were corrected and Carson did not experience any monetary loss.
Given Turner's position as the custodian of the inmate trust
fund records at TDCJ-ID and his carefully detailed account of the
transactions involving Carson's account, we find that Turner's
affidavit was adequate support for the defendants' motion for
summary judgment. Furthermore, we note that there is no reason to
doubt the accuracy of Turner's affidavit because Carson's trust
fund account records were on file with the court and were
considered by the district court when it ruled on the defendants'
motion for summary judgment.2
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
2
Carson also contends that the district court erred by denying his
motion for a continuance to obtain discovery to oppose the defendants' summary
judgment motion. Carson argues that he needed documents that were introduced at
an earlier hearing to demonstrate that the defendants' allegations in the motion
for summary judgment were false. We have reviewed the record and conclude that
the district court acted within its sound discretion in denying Carson's motion.
See Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930 (5th
Cir. 1995) (stating standard as abuse of discretion).
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