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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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