Damon Patterson v. City of New Orleans , 574 F. App'x 306 ( 2014 )

Case: 13-30298 Document: 00512670617 Page: 1 Date Filed: 06/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30298
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 19, 2014
DAMON PATTERSON,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
CITY OF NEW ORLEANS; NEW ORLEANS POLICE DEPARTMENT;
BRADLEY WAX, Sergeant; WESTLEY HUMBLE, Officer, also known as
Hummer Humble; JASON HICKMAN, Detective; THERESA MORRIS,
Detective; RAPHAEL DOBARD, Detective,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-3124
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Damon Patterson, Louisiana prisoner # 125836, filed a civil rights
complaint against the City of New Orleans, the New Orleans Police
Department, a police sergeant, and four police officers. Patterson complained
that the police officers violated his constitutional rights in arresting him on
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-30298
October 4, 2011. The district court dismissed the claims against the City of
New Orleans and the New Orleans Police Department with prejudice, and the
magistrate judge, acting by consent, dismissed the claims against the
individual defendants without prejudice pursuant to the rule of Heck v.
Humphrey, 512 U.S. 477 (1994). Patterson gave timely notice of his appeal.
Patterson raises no issue on appeal with respect to the dismissal of his
claims against the City of New Orleans or the New Orleans Police Department.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (unbriefed issues are
waived).
Patterson contends generally that the magistrate judge erred in failing
to consider the merits of his constitutional claims. He raises no issue with
respect to the magistrate judge’s determination that his claims are barred
under the rule in Heck except insofar as he contends that Heck may be
distinguished on the basis of its underlying facts. The distinctions drawn by
Patterson do not go to the question whether Patterson’s constitutional claims
implicate the validity of his criminal convictions. See Heck, 512 U.S. at 487.
Next, Patterson asserts that summary judgment should not have been
granted before discovery was completed. Patterson did not complain in his
memorandum in opposition to the motion for summary judgment that
discovery had not been completed. See FED. R. CIV. P. 56(d)(2). He has made
no showing that additional discovery would have generated evidence germane
to the summary judgment motion. See Int’l Shortstop, Inc. v. Rally’s, Inc., 939
F.2d 1257, 1266-67 (5th Cir. 1991). Patterson contends that the affidavits and
exhibits filed by the defendants in support of their motion for summary
judgment were “false and altered” and a “fraud upon the court,” and that the
magistrate judge should have convened a hearing to consider the reliability of
those documents. These unsubstantiated and conclusional assertions are
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No. 13-30298
insufficient to preclude entry of summary judgment. See Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011). Patterson complains that the clerk
of the district court misfiled his exhibit index, but he does not explain how he
was adversely impacted by the clerk’s error, if any.
Finally, Patterson asserts that the magistrate judge erred in failing to
issue a writ of habeas corpus and in failing to determine that he had been
denied access to the courts by his prison unit. Patterson did not request habeas
relief in the district court. He is imprisoned in Monroe, Louisiana, and the
record does not reflect that the New Orleans-based defendants are responsible
for the conditions of his confinement.
The appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R.47.5.4. We
CAUTION Patterson that this decision counts as a strike for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). If he accumulates three strikes, Patterson will be barred from
proceeding in forma pauperis in any civil action or appeal filed in a court of the
United States while he is incarcerated or detained in any facility unless he “is
under imminent danger of serious physical injury.” § 1915(g).
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