Filed: Aug. 03, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D August 3, 2007 UNITED STATES COURT OF APPEALS FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-40249 Summary Calendar TRACEY SCOTT MASSAY, Plaintiff-Appellant, versus FEDERAL CORRECTIONAL INSTITUTION-TEXARKANA, ET AL.; Defendants, UNITED STATES OF AMERICA, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Texas (5:05-CV-7) Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* Tracey S
Summary: United States Court of Appeals Fifth Circuit F I L E D August 3, 2007 UNITED STATES COURT OF APPEALS FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-40249 Summary Calendar TRACEY SCOTT MASSAY, Plaintiff-Appellant, versus FEDERAL CORRECTIONAL INSTITUTION-TEXARKANA, ET AL.; Defendants, UNITED STATES OF AMERICA, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Texas (5:05-CV-7) Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* Tracey Sc..
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United States Court of Appeals
Fifth Circuit
F I L E D
August 3, 2007
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-40249
Summary Calendar
TRACEY SCOTT MASSAY,
Plaintiff-Appellant,
versus
FEDERAL CORRECTIONAL INSTITUTION-TEXARKANA, ET AL.;
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(5:05-CV-7)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Tracey Scott Massay appeals, pro se, the summary-judgment
dismissal of his Federal Tort Claims Act (FTCA) action, which
asserted the Bureau of Prisons’s (BOP) failed to repair a prison-
yard tire rut, causing him, inter alia, to fracture his leg and
ankle.
*
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this opinion should not be published and is not precedent except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.
The Government maintains Massay’s appeal is abandoned because
his brief is insufficient under Federal Rule of Appellate Procedure
28. A pro se litigant’s brief is entitled to liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberally construed,
Massay’s brief claims the district court erred in denying him
appointment of counsel and granting summary judgment. Massay has
not abandoned his appeal. Because the Government has briefed these
issues, it is not prejudiced by our accepting Massay’s brief.
Massay claims his requests for appointment of counsel should
have been granted. The denial of appointment of counsel is
reviewed for abuse of discretion. Castro Romero v. Becken, 256
F.3d 349, 354 (5th Cir. 2001). Because Massay’s case does not
present unusual or especially complex issues or facts, the district
court did not abuse its discretion in denying appointment of
counsel. See, e.g., Santana v. Chandler,
961 F.2d 514, 515-16 (5th
Cir. 1992).
Massay next challenges the summary judgment, claiming it:
applied the wrong standard of care; and erred in resolving issues
of material fact. A summary judgment is reviewed de novo.
Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.
1996). Summary judgment is proper if “there is no genuine issue as
to any material fact and ... the moving party is entitled to a
judgment as a matter of law”. FED. R. CIV. P. 56(c).
Concerning Massay’s standard-of-care contention, this court
has not resolved whether the standard under 18 U.S.C. § 4042 or the
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Texas Recreational Use Statute (TRUS) applies to federal prisoners’
FTCA actions in Texas, and we need not do so here. As the district
court found, the same result would be reached under the TRUS or §
4042’s higher ordinary-care standard.
Massay next contends the court erred in making the factual
determination that no BOP employee was grossly negligent. He
asserts, inter alia: BOP witnesses offered “perjured affidavits”;
his sworn statement and other witnesses refute the BOP’s claim it
maintained the yard; and the treating orthopedist’s report
indicated his injuries were caused by a hole. Factual
controversies are resolved in favor of the nonmoving party, “but
only when there is an actual controversy; that is, when both
parties have submitted evidence of contradictory facts”. Guillory,
95 F.3d at 1326.
The Government submitted several sworn statements
establishing: the prison recreation yard was inspected daily for
defects and hazards; the mechanical lift used on the yard in
February of 2003 did not create any ruts; none of the inmate crews
reported any ruts during the time surrounding Massay’s accident;
and no inmates reported injuries concerning ruts on the yard during
that time period.
To oppose the summary-judgment motion, Massay submitted his
own sworn statement, which contained statements by a prison
recreation officer and a statement from his orthopedist’s report,
which was not produced. The officer’s and orthopedist’s statements
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are inadmissible hearsay. See FED. R. EVID. 801(c). Accordingly,
we cannot consider them as raising a material-fact issue. See
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th
Cir. 1987).
Massay’s sworn statement also declared that witnesses saw
heavy-equipment tires stuck in the mud on the yard and that the BOP
forced inmates to play athletics on the field, constantly neglected
the field, and caused his injuries. He provided only conclusory
assertions to contend the BOP breached its duty and caused his
injuries. “A summary assertion made in an affidavit is simply not
enough evidence to raise a genuine issue of material fact.” Melton
v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th
Cir. 1997); see also FED. R. CIV. P. 56(e).
Massay submitted the affidavit of a fellow inmate before the
Government moved for summary judgment. Although entitled “SIGNED
AND SEALED AFFIDAVIt” and indicating his fellow inmate gave the
statement under oath, it is not notarized and does not indicate it
was made “under penalty of perjury” or that the statements
contained therein were “true and correct.” Thus, this document is
not competent summary-judgment evidence. See 28 U.S.C. § 1746;
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.
1988).
Viewing the competent summary-judgment evidence in the light
most favorable to Massay, we cannot reasonably infer the BOP
4
breached its duty or caused Massay’s injuries. For the foregoing
reasons, summary judgment was proper.
AFFIRMED
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