     Case: 10-60250 Document: 00511325079 Page: 1 Date Filed: 12/17/2010




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

                                                 FILED
                                                                         December 17, 2010
                                     No. 10-60250
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

CLAY RANDOLPH SHADLEY,

                                                   Plaintiff-Appellant

v.

EARL GRIMES, Investigator;                  KEITH       WILDING,         Officer;    DAVID
SHOEMAKER, Detective,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 1:08-CV-83


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Clay Randolph Shadley appeals the summary judgment dismissal of his
42 U.S.C. § 1983 complaint against Biloxi Police Department Officers Earl
Grimes, Keith Wilding, and David Shoemaker for false arrest arising out his
arrest for the armed robbery of Kent Johnson. The claims were dismissed
because the arrest was effectuated pursuant to a valid arrest warrant and there
was probable cause for the arrest.


       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60250

      Shadley’s briefs are convoluted, but he appears to contend that Grimes
failed to conduct an adequate investigation before obtaining a warrant. For
support, Shadley appears to argue that an investigation would have revealed
that money was withdrawn from Johnson’s bank account before the alleged
robbery took place and Johnson’s injuries were less severe than they were
reported or appeared to be. Shadley also appears to argue that Johnson was not
a credible witness and complainant because he waited three days to report the
alleged robbery; claimed initially that he was involved in an altercation and later
that he was robbed; said he was robbed at Shadley and his girlfriend’s house, but
Shadley and his girlfriend were homeless; and stated that he voluntarily went
with Shadley to see his dog even though Shadley had robbed him before.
      Grimes averred that he did not know Shadley or know that he was
homeless and believed there was probable cause for his arrest.             Shadley’s
unsubstantiated belief otherwise fails to raise a genuine issue of material fact
on this point.    Grimes also averred that nothing in Johnson’s demeanor,
appearance, or account caused him to believe or suspect that he was wrong or
lying. Based on this record, Shadley failed to show that Grimes’s failure to
investigate further before obtaining a warrant amounts to “more than
negligence.” Herrera v. Millsap, 862 F.2d 1157, 1160 (5th Cir. 1989); cf. Sanders
v. English, 950 F.2d 1152, 1162 (5th Cir. 1992); see Simmons v. McElveen, 846
F.2d 337, 338-39 (5th Cir. 1988).
      Shadley also contends that Shoemaker falsely testified before the grand
jury that Shadley and his girlfriend broke Johnson’s arm and ribs whereas the
hospital records indicated that Johnson’s arm was not broken and his ribs were
previously fractured. Shadley did not offer Shoemaker’s grand jury testimony
into the record. Therefore, his conclusory assertion that Shoemaker falsely
testified is insufficient to raise a genuine issue of material fact on this point. See
Shields v. Twiss, 389 F.3d 142, 150 (5th Cir. 2004).



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                                  No. 10-60250

      Assuming that Shadley’s assertions are true, he failed to raise a genuine
issue of material fact as to whether the grand jury’s deliberations were tainted
by Shoemaker’s testimony. See id. The grand jury charged that Shadley and his
girlfriend caused serious bodily injury to Johnson “by breaking his arm and rib
bones.” The hospital records indicated that Johnson’s right hand was fractured.
It is unclear if Johnson’s ribs had been recently broken, but he was diagnosed
with a mild rib injury. Testimony that Johnson’s arm and ribs were broken does
not materially differ from evidence that Johnson’s hand was fractured and ribs
were mildly injured. See Porter v. Farris, 328 F. App’x 286, 288 (5th Cir. 2009).
      Shadley asserts that Officer Lance Chisum stated he assisted taking
Johnson’s statement but no statement from Johnson was ever introduced.
Similarly, he asserts that Wilding stated he assisted in Shadley’s arrest but he
was already in jail. Shadley appears to be referring to statements made by the
Biloxi Police Department on a witness list prepared for the armed robbery trial.
Putting aside Shadley’s failure to serve and add Chisum as a defendant, he
failed to allege a constitutional violation against him or Wilding. In addition, no
constitutional violation based on these assertions is apparent from the record.
Accordingly, summary judgment was properly granted on these claims.
      Shadley moves for production of the transcript of his armed robbery trial,
arguing the trial transcript is necessary to support his claims. Shadley did not
offer the transcript into the record in the district court. Because Shadley’s
motion is predicated on expanding the appellate record, which we decline to
permit, the motion is DENIED. See McIntosh v. Partridge, 540 F.3d 315, 327
(5th Cir. 2008).
      The judgment of the district court is AFFIRMED.             The motion for
production of transcripts is DENIED.




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