Chadwick Wright v. Williams Smith ( 2018 )


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  •      Case: 16-30344         Document: 00514507458          Page: 1    Date Filed: 06/11/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-30344                         FILED
    June 11, 2018
    Lyle W. Cayce
    CHADWICK WRIGHT,                                                              Clerk
    Plaintiff - Appellant
    v.
    WILLIAMS SMITH, Lieutenant, Suing in personal capacity; GARY
    AYMOND, Captain, Suing in personal capacity,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 2013-CV-775
    Before JOLLY, JONES, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Chadwick Wright, Louisiana prisoner # 368195, filed a pro se civil rights
    complaint, under 42 U.S.C. § 1983, against several prison officials: Lieutenant
    William Smith, 1 Captain Gary Aymond, Nurse Supervisor Katherine Bell, and
    an unidentified “Jane Doe” medical technician employed at the prison. Wright
    alleges that, in April 2012, defendant Gary Aymond charged Wright with a
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    1   The correct spelling of Lt. Smith’s first name is William, not Williams.
    Case: 16-30344     Document: 00514507458      Page: 2    Date Filed: 06/11/2018
    No. 16-30344
    false retaliatory disciplinary report in response to Wright’s exercise of his First
    Amendment right to seek redress of grievances and that, on June 30, 2012,
    defendant Aymond and the remaining defendants variously subjected Wright
    to an improper search, charged him with false and retaliatory disciplinary
    reports, subjected Wright to excessive force, and exhibited deliberate
    indifference to Wright’s serious medical needs.             The magistrate judge
    recommended, and the district court granted, summary judgment in favor of
    the defendants. See Wright v. Smith, No. 3:13-CV-775, 
    2016 WL 1032802
    (Feb.
    25, 2016). For the reasons given below, we affirm in part and vacate in part
    the district court’s order and remand for further proceedings.
    As an initial matter, in his appellate brief, Wright does not challenge the
    district court’s dismissal of Wright’s claims against Bell and Doe for failure to
    effect service of process. See Fed. R. Civ. Proc. 4(m). Nor does Wright challenge
    the district court’s dismissal of his claims, as time-barred, pertaining to the
    events of April 2012. Likewise, Wright does not assert error regarding the
    district court’s dismissal, on summary judgment, of Wright’s Fourth
    Amendment claim against Aymond. By failing to challenge the district court’s
    reasoning regarding these claims, Wright has abandoned any such claims on
    appeal. See Yohey v. Collins, 
    985 F.2d 222
    , 225 (5th Cir. 1993) (“Although we
    liberally construe the briefs of pro se appellants, we also require that
    arguments must be briefed to be preserved.”). Thus, the only claims remaining
    are Wright’s claims against Smith and Aymond for excessive force, and against
    Aymond for retaliation, pertaining to the events of June 30, 2012. We turn to
    those now.
    In the proceedings before the magistrate judge, Smith and Aymond
    moved for summary judgment, relying on the pleadings, affidavits, copies of
    the disciplinary reports, and portions of Wright’s medical records.         Wright
    opposed the motion for summary judgment, relying only on his own unsworn
    2
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    No. 16-30344
    declaration. Importantly, Wright’s unsworn declaration did not fully comply
    with the requirements of 28 U.S.C. § 1746(2). Although Wright’s declaration
    stated that the statements contained therein were, “true and correct,” the
    declaration did not indicate that the statements were made “under penalty of
    perjury,” as required by § 1746(2).         Thus, the magistrate judge held that
    Wright’s declaration was not competent summary judgment evidence. Wright,
    
    2016 WL 1032802
    at *1 n.2. 2 Because, apart from his declaration, Wright had
    no evidence to oppose summary judgment, the magistrate judge considered
    only the defendants’ summary-judgment evidence and concluded that Wright
    had not shown the existence of a genuine issue of disputed fact sufficient to
    preclude summary judgment. As a result, the magistrate judge recommended
    summary judgment in favor of the defendants.
    Wright timely objected to the magistrate’s recommendation, arguing
    that he should be given an opportunity to correct the defect in his original
    declaration.     Along with his objections, Wright submitted an amended
    declaration for the district court’s review. In his amended declaration, Wright
    stated that his statements were made “under penalty of perjury,” thus
    remedying the defect.
    The district court agreed with the magistrate’s recommendation,
    however, and granted the defendants’ motion for summary judgment.
    Although the district court’s brief opinion indicated that the court reviewed
    and considered Wright’s objection, it did not indicate whether the court
    considered Wright’s amended declaration.
    2 We note that, following the 2010 amendments to Federal Rule of Civil Procedure 56,
    declarations and affidavits are only one way to support a fact for summary-judgment
    purposes, the key question being only whether the particular material can be presented in
    an admissible form. See Lee v. Offshore Logistical & Transport, L.L.C., 
    859 F.3d 353
    , 354–
    55 (5th Cir. 2017) (citing Fed. R. Civ. P. 56(c)(1)).
    3
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    Wright timely appealed. He argues that the district court abused its
    discretion by not giving him an opportunity to properly support his assertions
    of fact in opposition to the defendants’ summary-judgment motion. He does
    not dispute the magistrate judge’s determination that his original declaration
    was defective, but he argues that his amended declaration remedied the
    defects. He also argues that the facts asserted in his amended declaration,
    which are substantially identical to those in his original declaration, preclude
    summary judgment on his excessive-force and retaliation claims.
    “We review the district court’s grant of summary judgment de novo. To
    decide whether summary judgment is proper here, we must, as a threshold
    matter, determine what evidence in the record is to be considered.” Davis v.
    Hernandez, 
    798 F.3d 290
    , 292 (5th Cir. 2015) (citation omitted). “Of course, as
    a general matter, the competent evidence of the summary judgment
    nonmovant is to be accepted and credited.” 
    Id. (citation omitted).
    When
    objecting to a magistrate judge’s recommendation on summary judgment,
    litigants may submit additional evidence for the district court’s de novo review.
    
    Id. In Freeman
    v. Bexar County, we held that the district court is not required
    to accept any such new evidence but has discretion to determine whether the
    new evidence should be accepted in the light of all pertinent circumstances. 
    Id. (citing Freeman,
    142 F.3d 848
    , 852–53 (5th Cir. 1998)). Thus, we review the
    district court’s decision whether to permit the new evidence for abuse of
    discretion.
    This appeal presents a situation nearly identical to that which we
    addressed in Davis v. Hernandez. See 
    798 F.3d 290
    . In Davis, a pro se inmate
    claimed that jail staff used excessive force against him, violating his
    constitutional rights. 
    Id. at 291.
    The plaintiff opposed the defendants’ motion
    for summary judgment using an unsworn declaration that did not declare
    “under penalty of perjury” that it was true and correct. 
    Id. The magistrate
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    judge held that the plaintiff’s declaration was not competent summary-
    judgment evidence. 
    Id. When the
    plaintiff objected to the magistrate judge’s
    recommendation, he submitted an amended declaration, which stated that the
    declarations were made under penalty of perjury. Nevertheless, like this case,
    the district court overruled the plaintiff’s objections, adopted the magistrate
    judge’s recommendation, and granted summary judgment to the defendants.
    The district court “did not acknowledge that Davis, on objection to the
    magistrate judge’s report, reiterated his testimony while declaring it under
    penalty of perjury to be true and correct.” 
    Id. at 292.
    Because the plaintiff’s
    amended declaration became competent summary-judgment evidence upon
    the plaintiff’s declaration that it was made under penalty of perjury, and
    because the district court’s opinion did not indicate whether the court had
    exercised its discretion, we held that the district court did not actually exercise
    its discretion under Freeman to decline to consider the amended declaration.
    
    Id. Such is
    the case here.
    Although we noted in Davis that we could simply vacate the district
    court’s summary judgment and remand the case with instructions that the
    district court decide in the first instance whether to accept new evidence, we
    further held that it would have been an abuse of discretion under Freeman to
    exclude the amended declaration. 
    Id. at 292–93.
    In reaching that conclusion,
    we considered four factors. First, we noted, “importantly, Davis is pro se, and
    federal courts . . . have a ‘traditional disposition of leniency toward pro se
    litigants.’” 
    Id. at 293
    (quoting Spotville v. Cain, 
    149 F.3d 374
    , 477 (5th Cir.
    1998) (per curiam)). Second, “although Davis did not initially satisfy 28 U.S.C.
    § 1746 when he opposed summary judgment, he came close.” 
    Id. “When a
    violation of this nature is committed by an unrepresented litigant who corrects
    the error promptly upon learning of it, as did Davis, there is an especially
    compelling case for the court to exercise its discretion to excuse the error.” 
    Id. 5 Case:
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    No. 16-30344
    Third, the substance of the amended testimony did not change from that of the
    original testimony. “An attestation under 28 U.S.C. § 1746 was added, but the
    facts remained the same.” 
    Id. at 294.
    Thus, there was no prejudice to the
    defendants. 
    Id. Fourth, “it
    matters that Davis’s entire evidentiary response to
    the [summary-judgment motion] is at issue. If his evidence is excluded, he will
    be left speechless against [the defendants’ argument, which] calls for dismissal
    of the case.” 
    Id. at 294.
    Based upon these four factors, we held that the
    exclusion of Davis’s evidence would be an abuse of discretion. 
    Id. All four
    considerations are present here. Wright is pro se. Wright’s error
    here is the same as that in Davis. The substance of Wright’s testimony did not
    change in his amended declaration, and thus there is no prejudice to the
    defendants. Finally, Wright’s declaration is his “entire evidentiary response”
    to the defendants’ motion for summary judgment. See 
    id. Accordingly, under
    Davis, on remand, it would be an abuse of discretion for the district court not
    to consider Wright’s amended declaration in evaluating whether the
    defendants are entitled to summary judgment.
    For the foregoing reasons, the district court’s grant of summary
    judgment is affirmed in part and vacated in part. To sum up what we have
    held, Wright has abandoned all claims except his excessive-force and
    retaliation claims against Smith and Aymond, pertaining to the events of June
    2012 only. With respect to those claims, and those claims only, we vacate the
    district court’s grant of summary judgment and remand for further
    proceedings not inconsistent with this opinion. Specifically, we remand for the
    district court to take in as evidence Wright’s amended declaration and to
    consider whether Smith and Aymond are entitled to summary judgment in the
    light of the facts asserted therein. We affirm in all other respects.
    AFFIRMED in part; VACATED in part; and REMANDED.
    6
    

Document Info

Docket Number: 16-30344

Filed Date: 6/11/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021