Cortez v. Genualdo ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
June 25, 2007
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-10301
Summary Calendar
ANDREW MACEDONIO CORTEZ,
Plaintiff-Appellant,
versus
P. R. GENUALDO, Badge No. 3052,
Fort Worth Police Department,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:04-CV-782)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Andrew Macedonio Cortez, Texas prisoner #
1194766, appeals the summary-judgment dismissal of his 42 U.S.C. §
1983 complaint, in which he raised: an excessive-force claim
against P.R. Genualdo, a police officer with the Fort Worth Police
Department; and the denial of his motion for appointment of
counsel.
*
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this opinion should not be published and is not precedent except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.
A summary judgment is reviewed de novo. E.g., Guillory v.
Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). Such
judgment is appropriate when the record demonstrates “there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law”. FED. R. CIV. P. 56(c);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en
banc). If the movant meets this burden, the nonmovant must show,
inter alia, a genuine material-fact issue for trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant cannot do so
with conclusional allegations, unsubstantiated assertions, or only
a scintilla of evidence. Little, 37 F.3d at 1075.
Summary judgment was proper because no record evidence shows
Genualdo committed the assault alleged by Cortez. To the contrary,
Cortez testified he did not see Genualdo assault him and failed to
present any evidence identifying Genualdo as the officer who
allegedly did so.
The district court did not abuse its discretion in declining
to appoint counsel to represent Cortez. See Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982).
AFFIRMED
2