Pryor v. Thaler ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-20476
Summary Calendar
MARK DUANE PRYOR, ET AL,
Plaintiffs,
MARK DUANE PRYOR
Plaintiff-Appellant,
versus
RICHARD C. THALER; TIMOTHY SIMMONS; CRAIG PRICE; SYLVIA PIASTA;
ROBERT GAYLOR; TERRY PICKETT, Captain; JAMES MCKEE; GENE WOODS;
JASON FRAZIER; JOHN PIPKIN; JANIE COCKRELL; LANG SPENCER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CV-2274
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Mark Duane Pryor, Texas inmate # 496264, proceeding pro se,
appeals following the district court’s grant of summary judgment
in favor of Terry Pickett, Timothy Simmons, and Sylvia Piasta on
his failure-to-protect claim, and the district court’s grant of
Pryor’s motion to voluntarily dismiss, without prejudice, claims
*
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this opinion should not be published and is not precedent except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.
No. 04-20476
-2-
against Richard C. Thaler, James McKee, and Jason Frazier.
Pryor’s action was based on an April 26, 1999, incident in which
he was stabbed by a fellow inmate, Emmitt Brager. We AFFIRM.
Pryor first contends that his action should not have been
dismissed simply because he did not name the correct defendants.
Pryor points to nothing in the record to suggest that he was
unable to ascertain the identity of any person who may have been
legally responsible for his injuries. He has not shown an
entitlement to relief.
Pryor next argues that he has not been permitted proper
discovery. The record reveals that Pryor did not move in the
district court for additional discovery pursuant to FED. R. CIV.
P. 56(f) prior to the district court’s grant of summary judgment.
His argument is therefore foreclosed. See Potter v. Delta
Airlines, Inc., 98 F.3d 881, 887 (5th Cir. 1996).
Pryor contends that his action was dismissed due to the
questionable strategy of his appointed counsel. “[T]he sixth
amendment right to effective assistance of counsel does not apply
to civil litigation.” Sanchez v. U.S. Postal Serv., 785 F.2d
1236, 1237 (5th Cir. 1986). Any potential remedy Pryor may have
against his appointed attorney is separate and distinct from his
action against the defendants in the instant matter. See id.Finally, Pryor argues that the district court was under
“equivocated and paltering belief” and that the district court
relied on “half-truths and out right lies” in dismissing his
No. 04-20476
-3-
claims. He submits that defendants Thaler, Simmons, and Piasta
decided, in September 1997, to release Brager from a high
security building into the general population and to change
Brager’s custody classification to “medium custody.” We
liberally construe Pryor’s contentions as an attack on the
dismissal of his failure-to-protect claim against these three
defendants. See Haines v. Kerner, 404 U.S. 519, 520 (1972),
Our review of the summary judgment evidence reveals that
Brager had only one violent offense on his record in the four-
year period preceding the attack on Pryor. “Prison
administrators . . . should be accorded wide-ranging deference in
the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Buchanan v.
United States, 915 F.2d 969, 972 (5th Cir. 1990) (internal
quotation and citation omitted). Pryor has not shown that the
district court erred in granting summary judgment in favor of
Simmons and Piasta.
Because Pryor’s motion to voluntarily dismiss his claims
against Thaler was granted, without adverse conditions, he has no
grounds to appeal the dismissal of Thaler. See Ryan v.
Occidental Petroleum Corp., 577 F.2d 298, 302 (5th Cir. 1978)
(abrogated on other grounds by Federal Sav. & Loan Ins. Corp. v.
Cribbs, 918 F.2d 557 (5th Cir. 1990)); FED. R. CIV. P. 41(b).
AFFIRMED.