Malone v. Zambrano ( 2023 )

Case: 21-40807 Document: 00516841838 Page: 1 Date Filed: 08/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 21-40807
Summary Calendar
FILED
August 1, 2023
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Lyle W. Cayce
Aaron Malone, Clerk
Plaintiff—Appellant,
versus
Kristine Zambrano, Sergeant/Lieutenant McConnell Unit Prison;
Kenneth Putnam, Warden, McConnell Unit Prison; Major Gould,
Major/Lieutenant McConnell Unit Prison; Selles, Mailroom Supervisor
McConnell Unit Prison; Texas Department of Criminal
Justice; Christina Rodriguez, Unit Grievance Investigator-
McConnell Unit Prison; Officer Landry, Correctional Officer-
McConnell Unit Prison; Officer Thompson, Correctional Officer-
McConnell Unit Prison,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CV-269
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-40807 Document: 00516841838 Page: 2 Date Filed: 08/01/2023
No. 21-40807
Aaron Malone, Texas prisoner # 1697643, is proceeding pro se on
appeal, as he did in district court. In 2019, he filed a complaint under 42
U.S.C. § 1983, claiming defendants retaliated against him and violated his
right of access to the courts after he filed a state-court action in 2015 against
prison officials. Malone maintains the district court committed various
procedural errors and challenges its granting defendants’ summary-
judgment motion and dismissing this action. The court’s 47-page order
contains the numerous contested rulings, except the denial of Malone’s
motion for new trial.
Our court reviews a summary judgment de novo. E.g., Austin v. Kroger
Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017). It is proper if “movant shows
. . . there is no genuine dispute as to any material fact and . . . movant is
entitled to judgment as a matter of law”. FED. R. CIV. P. 56(a). A dispute
of material fact is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party”. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The court ruled that Malone failed to exhaust many of his claims. It
also entered alternative rulings regarding each claim. Malone fails to
adequately challenge these rulings; accordingly, the court did not err in
granting summary judgment to defendants. E.g., Yohey v. Collins, 985 F.2d
222, 224–25 (5th Cir. 1993) (“Although we liberally construe the briefs of
pro se appellants, we also require that arguments mut be briefed to be
preserved.” (citation omitted)); Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987) (holding appellant abandons claim
on appeal by failing to identify error in district court’s analysis); Hugh Symons
Grp., plc v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir. 2002)
(“Unsubstantiated assertions . . . [and] conclusory allegations are not
competent summary judgment evidence and are insufficient to overcome a
summary judgment motion”.).
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No. 21-40807
As for Malone’s claims of procedural error, the court did not abuse its
discretion. The court declined to grant Malone additional extensions to
conduct discovery because he generally asserted defendants possessed
evidence he needed, as opposed to identifying any evidence that would
produce a genuine dispute of material fact. E.g., Am. Family Life Assur. Co.
of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (explaining non-moving
party requesting additional discovery “may not simply rely on vague
assertions that additional discovery will produce needed, but unspecified,
facts” (citation omitted)).
Additionally, the court denied his requests for appointment of
counsel, based on his failing to show exceptional circumstances existed. E.g.,
Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (“[A] district court is not
required to appoint counsel in the absence of exceptional circumstances”.
(citation omitted)).
Next, in denying his motion to supplement his more definite
statement of his claims, the court ruled it was untimely because it was filed
four months after defendants filed their summary-judgment motion and after
the deadline in the scheduling order for filing amended pleadings. E.g.,
Wright v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005) (stating motion
to amend may be permissibly denied for “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, . . . and futility of amendment” (citation
omitted)).
Further, the court did not abuse its discretion by striking Malone’s
cross-motion for summary judgment because it ruled his motion was
untimely and that Malone failed to show good cause to excuse the
untimeliness. E.g., Batiste v. Lewis, 976 F.3d 493, 500 (5th Cir. 2020) (noting
district court’s broad discretion in enforcing scheduling order deadlines).
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And, that evidence contains “variations, discrepancies, and
contradictions”, does not make it inadmissible; therefore, the court did not
abuse its discretion in denying Malone’s motions to strike defendants’
summary-judgment evidence. Rogers v. Pearland Indep. Sch. Dist., 827 F.3d
403, 406–07 (5th Cir. 2016) (alterations omitted) (citation omitted); see also
Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 (5th Cir. 2007).
Regarding Malone’s assertion that the court failed to consider various
items of evidence, the record reflects the court did consider his evidence.
Any evidence not considered was improper summary-judgment evidence and
not before the court.
Finally, Malone makes no assertions concerning the denial of his new-
trial motion; therefore, he abandoned any challenge he may have had on that
basis. E.g., Yohey, 985 F.2d at 224–25; Brinkmann, 813 F.2d at 748.
AFFIRMED.
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