John Powell v. United States ( 2011 )

Case: 10-31206 Document: 00511520196 Page: 1 Date Filed: 06/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2011
No. 10-31206 Lyle W. Cayce
Summary Calendar Clerk
JOHN D. POWELL,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-1873
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant John D. Powell (“Powell”) appeals from the district
court’s order of summary judgment in favor of Defendant-Appellee United States
of America (“Government”). Powell sued the Government for negligence under
the Federal Tort Claims Act, 28 U.S.C. § 1346. We AFFIRM the district court.
Powell visited the Veterans Administration Medical Center (“VA”) in
Jackson, Mississippi, on March 21, 2006. An altercation arose after Powell
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-31206
refused to remove items from his pockets at the security checkpoint. A security
guard struck Powell’s arm and knocked away Powell’s finger, which was pointed
at the guard. The squabble ended moments later without further incident.
Powell sued the Government for negligence for its employee’s actions and alleged
damages based on mental anguish and pain, medical expenses, and physical
pain and suffering. The district court found a complete absence of evidence to
support a finding of damages and granted summary judgment in favor of the
Government.
We review a summary judgment order de novo, applying the same
standard as the district court. United States v. Lawrence, 276 F.3d 193, 195 (5th
Cir. 2001). “Summary judgment is proper when no issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Questions of
fact are reviewed in the light most favorable to the nonmovant and questions of
law are reviewed de novo.” Deas v. River West, L.P., 152 F.3d 471, 475 (5th Cir.
1998). Here, Mississippi tort law applies to Powell’s claim. See 28 U.S.C. §
1346(b)(1).
The Government argued that Powell cannot satisfy his burden of proof
regarding damages for his claim of negligence. To overcome the Government’s
summary judgment motion, Powell had to show a genuine issue of fact as to the
element of damages. See Carpenter v. Nobile, 620 So. 2d 961, 964 (Miss. 1993);
Sellars ex rel. Dill v. Walgreen Co., 971 So. 2d 1278, 1279 (Miss. Ct. App. 2008).
Nothing in the record supports Powell’s allegations of injury. In response to the
Government’s Motion, Powell did not set out any specific facts to show a genuine
issue of fact existed regarding his alleged injury. In fact, Powell has failed to
supply any evidence that shows he suffered an injury from the brief squabble.
Accordingly, the district court did not err by granting summary judgment in
favor of the Government because no genuine issue existed over whether Powell
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Case: 10-31206 Document: 00511520196 Page: 3 Date Filed: 06/24/2011
No. 10-31206
could satisfy his burden of proof regarding damages. See Carpenter, 620 So. 2d
at 964.
We AFFIRM the district court’s summary judgment order in favor of the
Government.
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