Eichelberger v. Cunningham , 108 F. App'x 891 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-60997
Summary Calendar
BETSY EICHELBERGER; CALVIN HAMPTON,
Plaintiffs-Appellants,
versus
STANLEY CUNNINGHAM, etc.; ET AL.,
Defendants,
STANLEY CUNNINGHAM, In his Official Capacity
as Chancery Clerk of Winston County,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:02-CV-286
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Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants Betsy Eichelberger and Calvin Hampton,
Mississippi residents, appeal from the district court’s order
granting summary judgment to defendant-appellee Stanley
Cunningham. The plaintiffs filed this 42 U.S.C. § 1983 civil
rights complaint for “declaratory relief,” seeking primarily to
*
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that this opinion should not be published and is not precedent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. 03-60997
-2-
enjoin or disrupt a lawsuit that had been filed against them in
the Chancery Court of Winston County, Mississippi. The
plaintiffs asserted that Cunningham had violated their procedural
and substantive due process rights by permitting the lawsuit to
continue against them based on an amended complaint that had been
improperly filed with the same case number as the original
complaint, which had been dismissed without prejudice. The
plaintiffs also indicated that Cunningham had caused them to be
falsely imprisoned for contempt of court, after they failed to
appear at a hearing in the case.
The plaintiffs have abandoned all claims against the three
private defendants who had filed the Chancery Court lawsuit
against them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993); FED. R. APP. P. 28(a)(9).
This court reviews de novo a district court’s order granting
a party’s summary-judgment motion. Whittaker v. BellSouth
Telecomm., Inc., 206 F.3d 532, 534 (5th Cir. 2000). Summary
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits filed in support of the motion, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
The moving party bears the burden of showing the district court
that there is an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
No. 03-60997
-3-
(1986). If the moving party meets the initial burden of showing
that there is no genuine issue, the burden shifts to the
nonmovant to set forth specific facts showing the existence of a
genuine issue for trial. Rule 56(e).
The district court correctly concluded that the plaintiffs’
allegations failed to establish a violation of their procedural
due process rights. The plaintiffs have never clearly identified
either a “liberty” or “property” interest of which they were
deprived by Cunningham or a legal “process” or procedure of which
they were deprived. See Zinermon v. Burch, 494 U.S. 113, 125-27
(1990). Moreover, they have failed to show how Cunningham, who
allegedly only filed the private defendants’ amended complaint
and issued a summons to plaintiff Eichelberger, was personally
involved in any deprivation of due process or caused any such
deprivation. See Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.
1987). The plaintiffs’ substantive due process claim is
frivolous, as they have failed to show that Cunningham’s alleged
errors could be characterized as “conscience shocking.”
See Zinermon, 494 U.S. at 125; County of Sacramento v. Lewis,
523 U.S. 833, 847 (1998). We will not consider the plaintiffs’
equal-protection claim, which is raised for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
Because the plaintiffs’ appeal is “entirely without merit,”
the appeal is DISMISSED as frivolous. FED. R. APP. P.
34(a)(2)(A); 5TH CIR. R. 42.2.