Case: 09-40947     Document: 00511216531          Page: 1    Date Filed: 08/26/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 26, 2010
                                     No. 09-40947
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JASON WEATHERS,

                                                   Plaintiff-Appellant

v.

RUTH CANO,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 2:08-CV-54


Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jason Weathers, Texas prisoner # 1358550, appeals the district court’s
grant of summary judgment in favor of defendant Ruth Cano, denial of
Weathers’s motion for judgment, and dismissal of Weathers’s 42 U.S.C. § 1983
complaint. Weathers’s complaint alleged that on June 7, 2007, he was involved
in a physical altercation with another inmate, Larry Burr. Both Burr and
Weathers were seen throwing punches at each other. Following the altercation,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40947    Document: 00511216531 Page: 2       Date Filed: 08/26/2010
                                 No. 09-40947

both Burr and Weathers signed a document stating that they were not in fear
of safety and did not require protection.
        Four days later, on June 11, 2007, Weathers and Burr were placed in the
same holding cell in G-Building while awaiting an appearance before the Unit
Classification Committee.     Although Weathers did not allege that another
physical altercation occurred, he contended that a female guard, identified as
Jane Doe in his original complaint, violated his constitutional rights by failing
to protect him from Burr.      Weathers informed the guard of the previous
altercation and stated that he did not want to be placed in the same cell. The
guard ignored his complaint and placed him in the cell, after which she left the
area.
        Weathers was unaware of the identity of the female guard at the time he
filed suit, but subsequently identified Ruth Cano as the defendant.           The
identification process involved two photographs provided by the Assistant
Attorney General, working with prison personnel to determine who might have
been on duty on the day in question that matched Weathers’s description. The
photographs were presented to Weathers, and from them he selected Cano as the
female guard. Cano moved for summary judgment, arguing that she was not
personally involved in the incident. She submitted her affidavit and a personal
calendar indicating that she was not working in the G-Building on June 11,
2007. Based on Cano’s evidence and the lack of countervailing evidence from
Weathers, the district court granted Cano’s summary judgment motion, finding
that she was not personally involved. The district court alternatively found that,
if she had been involved, Cano was entitled to qualified immunity.
        The district court did not err in granting summary judgment in favor of
Cano. She presented evidence that she was not personally involved and showed
there was no genuine issue as to identity. See Little v. Liquid Air Corp., 

, 1075 (5th Cir. 1994) (en banc). Weathers did not present any rebuttal
evidence or challenge her assertion that she was not working in the G-building

                                        2
   Case: 09-40947    Document: 00511216531 Page: 3          Date Filed: 08/26/2010
                                 No. 09-40947

on June 11, 2007.      Weathers failed to set forth specific facts showing the
existence of a genuine issue for trial. See id.; F ED. R. C IV. P. 56(e).
      Moreover, if Cano had been involved, she was entitled to qualified
immunity. Weathers did not show that she violated his constitutional rights.
See Lytle v. Bexar County, Tex., 

, 410 (5th Cir. 2009). There was no
indication of a substantial risk of harm. See Adames v. Perez, 

, 512
(5th Cir. 2003); Neals v. Norwood, 

, 533 (5th Cir. 1995). Weathers
had signed a form indicating that he did not fear his safety and did not require
protection.
      Weathers contends that the district court erred in failing to grant his
motion for default judgment. He argues that Cano failed to submit a timely joint
pretrial order in accordance with the district court’s order establishing deadlines
and that Cano’s failure to oppose his motion to amend his complaint entitled him
to a default judgment. Weathers’s argument is without factual or legal support.
Cano was under no obligation to submit a joint pretrial order because she timely
filed a dispositive motion in accordance with the order setting deadlines.
Additionally, the failure to oppose a motion to amend his complaint to include
additional requests for relief does not equate with a failure to answer the
complaint.
      Weathers also argues that the district court erred in denying his motion
for the appointment of counsel. The issues in this case were not complex.
Weathers demonstrated an ability to present and investigate his case. The
evidence submitted was not complex. Thus, the district court did not abuse its
discretion in denying Weathers’s motion for the appointment of counsel. See
Baranowski v. Hart, 

, 126 (5th Cir. 2007); Ulmer v. Chancellor, 

, 212-13 (5th Cir. 1982).
      The judgment of the district court is AFFIRMED.




                                          3