     Case: 13-10949      Document: 00512841162         Page: 1    Date Filed: 11/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10949
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 18, 2014
OTHNIEL MCKINNEY,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

UNITED STATES OF AMERICA, care of Ekwenugo unnamed Does,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-394


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Othniel McKinney, federal prisoner # 24693-077, filed a negligence claim
against the Government under the Federal Tort Claims Act, alleging that
Bureau of Prisons (BOP) officials failed to assist McKinney, who was shackled
and 79 years old, when he descended steps to disembark from a private jet
while being transported to FMC Butner in North Carolina. The Government
moved for summary judgment. After considering McKinney’s negligence claim


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10949

under North Carolina law as required, see 28 U.S.C. § 1346(b)(1), the district
court granted the Government’s motion and dismissed McKinney’s action with
prejudice. McKinney now appeals.
      Summary judgment is proper if the movant shows 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). We review de novo a district court’s
grant of summary judgment. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d
752, 754 (5th Cir. 2011).    To recover on a negligence claim under North
Carolina law, the plaintiff “must offer evidence of the essential elements of
negligence: duty, breach of duty, proximate cause, and damages.” Camalier v.
Jeffries, 460 S.E.2d 133, 136 (N.C. 1995).
      The district court assumed that BOP officials had a duty to assist
McKinney in disembarking from the airplane, that the duty was breached, and
that McKinney fell down the steps as a result of that breach of duty. The
Government presented evidence showing the following. McKinney sustained
an elbow abrasion and complained of lower back pain, but x-rays showed only
degenerative changes in McKinney’s elbow and back. The medical staff at
FMC Butner did not observe any manifestation of any injury to McKinney’s
back. The day after his fall, a medical examination revealed that McKinney
had a normal gait with no limp and that he had a full range of motion in his
back, arms, and legs. Eight days after the fall, a doctor examining McKinney
for an unrelated condition noted that he had no apparent leg problems or
injuries. Although McKinney was issued a walker while at FMC Butner, it
was not issued until almost three weeks after the fall. Additionally, a physical
therapist who met with McKinney more than five weeks after the fall observed
that McKinney could walk without difficulty.




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                                No. 13-10949

      The competent summary judgment evidence presented by the
Government showed a complete absence of proof of an actionable physical
injury to McKinney, an essential element of his negligence claim. See Martin
v. John W. Stone Oil Dist., 819 F.2d 547, 549 (5th Cir. 1987). McKinney did
not respond to the Government’s motion and thus failed to meet his burden of
pointing to some specific evidence to support his claim. See Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010). Nothing in the record before us
indicates that the district court erred in concluding that summary judgment
was appropriate in this case. See Melton v. Teachers Ins. & Annuity Ass’n of
Am., 114 F.3d 557, 559 (5th Cir. 1997).
      McKinney argues for the first time in his reply brief that the district
court erred in denying his request for the appointment of counsel. We do not
consider this argument as it was not raised in McKinney’s opening brief. See
United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
      AFFIRMED.




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