Case Information
*1 Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM: [*]
Tony Vann appeals pro se the district court’s grant of summary judgment in favor of defendant-appellees and the denial of his motion to compel discovery, his motion for summary judgment, and his motion to stay the proceedings.
Vann sued Fort Worth Police Officers Caleb Ferren, Carey Gilbert, and Eric Wood for false arrest, false imprisonment, use of excessive force in effectuating his arrest, and violating 42 U.S.C. § 1985. We affirm the district court’s denial of each of Vann’s motions and the grant of summary judgment in favor of defendant-appellees.
I. Facts
On June 8, 2008, Ferren observed Vann and a female park their vehicle in a private church parking lot, walk across the street, and enter a vacant, boarded-up house across the street. Ferren pulled his patrol car over and walked up to the house. As Ferren approached, Vann came to the door of the house, explaining that he had been hired by the owner of the home to do work on the house and providing the name and phone number of the owner. At Ferren’s request, Vann identified his female companion as his wife but gave Ferren the incorrect last name and date of birth for the woman. Further investigation revealed that her name was Susan Reeves and that she was not Vann’s wife. Ferren testified that he believed that the pair were trespassing for the purpose of prostitution and detained Vann. Vann claims he was then placed in Ferren’s patrol car for a substantial amount of time despite the 100-plus- degree weather. Ferren radioed for backup, and Gilbert and Wood arrived. While Vann was in Ferren’s patrol car, Ferren discovered that Vann had four outstanding warrants for his arrest on Class C misdemeanors. Despite this, Ferren released Vann after confirming with the owner of the home that Vann had permission to be on the premises. After Vann exited the patrol car, Ferren discovered what appeared to be a bag of marijuana under the back seat of Ferren’s patrol car.
The remaining events are disputed. According to Vann, he immediately informed Ferren that the bag of marijuana was not his, but Ferren responded by making accusations against Vann and shouting racial slurs. Vann then threw the bag to the ground in frustration. In response, the three officers began to stomp on Vann’s neck and back while he was on the ground. The officers also threatened to shoot Vann’s dog and harassed Reeves by taunting her and watching a female officer strip search Reeves in another patrol car.
According to Ferren, after discovering what appeared to be a bag of marijuana, he placed the bag on the trunk of his patrol car and informed Vann that he was under arrest. Although Vann initially appeared to comply with Ferren’s orders, Vann then grabbed the bag as he was being handcuffed and began to eat its contents. According to Ferren, he attempted to stop Vann from eating the contents of the bag by “delivering one knee strike to Vann’s common peroneal area and applying an arm bar technique to get Vann to the ground.” When Vann was on the ground, Vann continued to resist arrest, and Gilbert and Wood intervened. Gilbert testified that he used his hands to apply “an epiglottal pressure point technique in an effort to prevent Mr. Vann from swallowing” the contents of the bag and “applied one distractionary knee strike to Mr. Vann’s left side to gain compliance.” Wood grabbed Vann’s left arm to help place Vann in handcuffs.
It is undisputed that after he was arrested, Vann pleaded guilty to attempted tampering with evidence and received ninety days in county jail. Vann filed this lawsuit on February 18, 2009.
II. Vann’s Motion to Compel Discovery
Originally, the district court set the deadline for discovery for May 31, 2011. The district court later granted Vann’s June 24, 2011 motion to extend the district court’s scheduling order thirty days to allow for additional discovery. The district court set a new discovery deadline of July 25, 2011 and a new pretrial motion deadline of August 8, 2011. On August 9, 2011, after the revised discovery deadline and pretrial motion deadline both had passed, Vann filed a motion to extend the district court’s discovery deadline until December 3, 2011. The motion for the extension did not explain what discovery was needed or why discovery was not sought earlier; it only stated that Vann needed to prepare himself for the jury trial. The motion was denied by the district court on October 6, 2011. Vann next sent a discovery request to defendant-appellees on August 22, 2011. Vann filed a motion to compel on October 11, 2011 stating that a set of interrogatories had been sent to the defendants on August 22, 2011 and that the interrogatories remained unanswered after the thirty-day deadline set forth in Federal Rule of Civil Procedure 33. This motion was denied by the district court with Vann’s other pending motions on November 18, 2011.
Vann argues that the district court abused its discretion by denying his
motion to compel because he “has been argueing [sic] discovery since cause [sic]
was reversed and remanded. Before the deadline of July 25[,] 2011. Also since
first court order denying discovery dated Feb 17, 2011 . . . .” “We review a
district court’s discovery rulings, including the denial of a motion to compel, for
abuse of discretion. We will affirm such decisions unless they are arbitrary or
clearly unreasonable. ”
Wiwa v. Royal Dutch Petroleum Co.
,
The district court did not abuse of discretion by denying Vann’s October
11, 2011 motion to compel. Because the district court’s amended scheduling
order required all discovery to be completed by July 25, 2011, the motion to
compel was untimely. The district court had already extended the discovery
deadline thirty days to allow Vann further time for discovery but according to
the record, Vann failed to seek any discovery during those thirty days. In light
of Vann’s “unexplained delay in seeking the court’s assistance in compelling
discovery,” the district court’s decision to deny Vann’s motion to compel was not
“arbitrary or clearly unreasonable.”
See Curry v. Strain
,
III. Vann’s Motion for Summary Judgment
On October 11, 2011, Vann filed a motion for summary judgment in
conjunction with his motion to compel discovery. The portion of the motion
addressing summary judgment did not include any evidence, caselaw, argument,
or analysis. It merely stated that the motion was pursuant to Federal Rule of
Civil Procedure 56. Thus, Vann failed to demonstrate that, “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a);
see also QBE Ins. Corp. v. Brown &
Mitchell, Inc.
,
IV. Vann’s Motion to Stay the Proceedings
Vann informed the district court that he planned to file a petition for writ
of mandamus with this court and asked the district court to stay the case during
the pendency of the writ. We review the denial of a stay for abuse of discretion.
Williams v. Thaler
,
because [mandamus] requests are only granted in exceptional circumstances, the Federal Rules of Civil Procedure do not provide for an automatic stay of district court proceedings while a petition for writ of mandamus is pending. If the district court or the court of appeals finds it appropriate to stay proceedings while a petition for mandamus relief is pending, such a stay may be granted in the court’s discretion.
Woodson v. Surgitek, Inc.
,
V. Defendant-Appellees ’ Motion for Summary Judgment
“We review a grant of summary judgment de novo, applying the same
standards as the district court.”
Dillion v. Rogers
,
A. Vann’s False-Arrest and False-Imprisonment Claims
The district court dismissed Vann’s false-arrest and false-imprisonment
claims because they failed as a matter of law under
Heck v. Humphrey
, 512 U.S.
477 (1994), and in the alternative, because defendant-appellees are entitled to
qualified immunity. Under
Heck
, “[a] § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does not accrue until
the conviction or sentence has been invalidated.” 512 U.S. at 489–90. Vann
contests his arrest and imprisonment as a result of Ferren’s discovery of the
marijuana and Vann’s attempt to consume the marijuana. His claim fails as a
matter of law, as the district court held, because these two actions are part of
Vann’s still-valid conviction for attempted tampering with evidence.
See Connors
v. Graves
,
Next, Vann argues that defendant-appellees used excessive force when they arrested him after the marijuana was discovered. “To prevail on an excessive force claim, a plaintiff must establish: (1) injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Freeman v. Gore , 483 F.3d 404, 416 (5th Cir. 2007) (citations and internal quotation marks omitted).
In order for summary judgment to be granted in favor of defendant-
appellees, because the burden at trial would rest on Vann, the defendant-
appellees prevail if they demonstrate the absence of evidentiary support in the
record for Vann’s claim.
Miss. River Basin Alliance v. Westphal
,
Finally, in his brief before this court, Vann asserts that a conspiracy exists
to interfere with his civil rights because the Forth Worth Police Department
withheld video recordings of his arrest. However, this allegation did not appear
in Vann’s complaint, and no evidence was offered to support it. Vann’s motion
for summary judgment and attached declarations did not mention video
recordings or that they were withheld. No other evidence was offered by Vann.
Mere “conclusory allegations” or “unsubstantiated assertions” are insufficient to
demonstrate a genuine issue of material fact for trial.
Calbillo v. Cavender
Oldsmobile, Inc.
,
VI. Conclusion
The district court did not abuse its discretion in denying the motion to compel discovery or motion to stay proceedings. Vann’s motion for summary judgment was properly denied as it included no evidence, argument, or analysis. The district court properly granted summary judgment in favor the defendant- appellees. Therefore, we AFFIRM.
Notes
[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.
[1] Although we construe a pro se plaintiff’s pleadings liberally, Perez v. United States , 312 F.3d 191, 194–95 (5th Cir. 2002) (citing Haines v. Kerner , 404 U.S. 519, 520 (1972)), Vann’s complaint explicitly disclaims that his detention prior to the marijuana being discovered was an arrest.