Greer v. Bramhall , 77 F. App'x 254 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 8, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40337
Summary Calendar
MAURICE GREER,
Plaintiff-Appellant,
versus
KENNETH BRAMHALL,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:00-CV-312
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Maurice Greer (“Greer”), currently Wisconsin prisoner
#280377 and formerly an inmate at the Bowie County Correctional
Center (“Bowie”) in Texarkana, Texas, appeals the district
court’s grant of summary judgment to Kenneth Bramhall
(“Bramhall”), a former officer at Bowie, on Greer’s 42 U.S.C.
§ 1983 claims. Greer argues that the district court abused its
discretion by not considering his FED. R. CIV. P. 59(e) motion
*
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that this opinion should not be published and is not precedent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.
No. 03-40337
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challenging the magistrate judge’s report and recommendation.
For the first time on appeal, Greer contends that the district
court abused its discretion by not ruling on his motion to compel
prior to granting Bramhall’s summary judgment motion. Greer also
maintains that the district court erred by finding that his
injuries were de minimis and that he was injured because he did
not obey Bramhall’s orders.
In his FED. R. CIV. P. 59(e) motion, Greer challenged the
magistrate judge’s findings that his injury was de minimis and
that he was injured because he did not obey Bramhall’s orders but
did not challenge the magistrate judge’s alternative findings
that Bramhall was entitled to official immunity from Greer’s
official capacity claims and qualified immunity from Greer’s
personal capacity claims. As the magistrate judge’s alternative
findings on official and qualified immunity were sufficient, by
themselves, to support the grant of summary judgment to Bramhall,
Greer was not prejudiced by the failure of the district court to
consider his FED. R. CIV. P. 59(e) motion. Thus, while the
district court should have considered Greer’s FED. R. CIV. P.
59(e) motion as timely objections to the magistrate judge’s
report and recommendation, the district court did not commit
reversible error. See Kreimerman v. Casa Veerkamp, S.A., de
C.V., 22 F.3d 634, 646-47 (5th Cir. 1994).
Greer’s motion to compel did not contain the required
certification that he had “in good faith conferred with the party
No. 03-40337
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failing to make the discovery.” FED. R. CIV. P. 37(a)(2)(B).
Consequently, Greer was not prejudiced the district court’s
failure to rule on the motion to compel prior to granting summary
judgment to Bramhall. As Greer suffered no prejudice, Greer has
not shown that the district court abused its discretion, no less
committed plain error. See Marshall v. Norwood, 741 F.2d 761,
764 (5th Cir. 1984).
We need not consider Greer’s remaining arguments. Because
Greer has not challenged the district court’s rulings that
Bramhall was entitled to official and qualified immunity on
appeal, he has waived any such challenges. See United States v.
Brace, 145 F.3d 247, 255 (5th Cir. 1998) (en banc). The district
court’s rulings on official and qualified immunity are
sufficient, by themselves, to support the grant of summary
judgment to Bramhall. Accordingly, the district court’s grant of
summary judgment to Bramhall is AFFIRMED.