Carlton Turner v. Jake Baird ( 2017 )

Case: 17-30024 Document: 00514282894 Page: 1 Date Filed: 12/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30024 FILED
Summary Calendar December 21, 2017
Lyle W. Cayce
Clerk
CARLTON TREMELL TURNER,
Plaintiff-Appellant
v.
JAKE BAIRD; VINCENT COLEMAN,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:14-CV-625
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Carlton Tremell Turner, Louisiana prisoner # 372940, filed a 42 U.S.C.
§ 1983 complaint alleging that the defendants denied him a telephone call
without a valid reason, sprayed him three times with a chemical agent while
he was restrained, and filed a false disciplinary report. Defendants moved for
summary judgment and submitted supporting affidavits generally refuting
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30024 Document: 00514282894 Page: 2 Date Filed: 12/21/2017
No. 17-30024
Turner’s allegations. The district court granted summary judgment for the
defendants and dismissed Turner’s complaint.
We review a grant of summary judgment de novo. Haverda v. Hays Cty.,
723 F.3d 586, 591 (5th Cir. 2013). Summary judgment is warranted when “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
The defendants properly supported their summary judgment motion
with sworn affidavits, and Turner did not submit any competent summary
judgment evidence. Even pro se litigants may not oppose summary judgment
motions with unsworn materials. See Gordon v. Watson, 622 F.2d 120, 123
(5th Cir. 1980). Neither Turner’s original complaint nor his summary
judgment opposition was sworn or verified under 28 U.S.C. § 1746. 1 Because
the only competent evidence came from the defendants, the district court
correctly found that Turner failed to show a “genuine dispute as to any
material fact.”
The evidence also shows that the defendants were entitled to judgment
as a matter of law. Defendant Baird’s affidavit provides a valid reason for the
suspension of telephone calls on Turner’s tier. See Waganfeald v. Gusman, 674
F.3d 475, 485 (5th Cir. 2012)). Because Turner was refusing orders and
becoming increasingly belligerent, we conclude that the district court did not
1 Turner did finally submit a properly signed and certified declaration from himself
and another inmate as part of his objections to the magistrate’s recommendation. A district
court has discretion to accept new evidence at that stage. 28 U.S.C. § 636(b)(1); Freeman v.
County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998). But Turner did not move to supplement
the evidence with the new declarations and the district court did not rule on the issue. The
district court’s overruling of the objections and dismissal of the complaint could be construed
as an effective denial of an implicit request to supplement. Performance Autoplex II Ltd. v.
Mid-Continent Cas. Co., 322 F.3d 847, 862 & n.22 (5th Cir. 2003). In any event, on appeal
Turner does not argue that the district court erred in failing to consider the declarations
including in the objections to the magistrate’s report and his brief barely relies on the two
declarations.
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Case: 17-30024 Document: 00514282894 Page: 3 Date Filed: 12/21/2017
No. 17-30024
err in finding that the single burst of chemical agent was used in a “good-faith
effort to maintain or restore discipline,” rather “than maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).
Finally, we note that Turner does not argue on appeal that the district court
erred in granting summary judgment on his claim that he received a false
disciplinary report. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
AFFIRMED.
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