                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                                                               August 3, 2007
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                  Clerk

                             No. 06-40249
                           Summary Calendar


                         TRACEY SCOTT MASSAY,

                                                  Plaintiff-Appellant,

                                versus

         FEDERAL CORRECTIONAL INSTITUTION-TEXARKANA, ET AL.;

                                                           Defendants,

                      UNITED STATES OF AMERICA,

                                                  Defendant-Appellee.


             Appeal from the United States District Court
                   for the Eastern District of Texas
                              (5:05-CV-7)


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Tracey Scott Massay appeals, pro se, the summary-judgment

dismissal of his Federal Tort Claims Act (FTCA) action, which

asserted the Bureau of Prisons’s (BOP) failed to repair a prison-

yard tire rut, causing him, inter alia, to fracture his leg and

ankle.



     *
       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this opinion should not be published and is not precedent except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.
      The Government maintains Massay’s appeal is abandoned because

his brief is insufficient under Federal Rule of Appellate Procedure

28. A pro se litigant’s brief is entitled to liberal construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972).               Liberally construed,

Massay’s brief claims the district court erred in denying him

appointment of counsel and granting summary judgment.                 Massay has

not abandoned his appeal. Because the Government has briefed these

issues, it is not prejudiced by our accepting Massay’s brief.

      Massay claims his requests for appointment of counsel should

have been granted.      The denial of appointment of counsel is

reviewed for abuse of discretion.            Castro Romero v. Becken, 256

F.3d 349, 354 (5th Cir. 2001).            Because Massay’s case does not

present unusual or especially complex issues or facts, the district

court did not abuse its discretion in denying appointment of

counsel. See, e.g., Santana v. Chandler, 961 F.2d 514, 515-16 (5th

Cir. 1992).

      Massay next challenges the summary judgment, claiming it:

applied the wrong standard of care; and erred in resolving issues

of   material   fact.   A   summary       judgment   is    reviewed    de   novo.

Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.

1996). Summary judgment is proper if “there is no genuine issue as

to any material fact and ... the moving party is entitled to a

judgment as a matter of law”.     FED. R. CIV. P. 56(c).

      Concerning Massay’s standard-of-care contention, this court

has not resolved whether the standard under 18 U.S.C. § 4042 or the

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Texas Recreational Use Statute (TRUS) applies to federal prisoners’

FTCA actions in Texas, and we need not do so here.                As the district

court found, the same result would be reached under the TRUS or §

4042’s higher ordinary-care standard.

      Massay next contends the court erred in making the factual

determination that no BOP employee was grossly negligent.                            He

asserts, inter alia:       BOP witnesses offered “perjured affidavits”;

his sworn statement and other witnesses refute the BOP’s claim it

maintained    the     yard;   and     the    treating     orthopedist’s          report

indicated     his    injuries     were      caused   by    a    hole.            Factual

controversies are resolved in favor of the nonmoving party, “but

only when there is an actual controversy; that is, when both

parties have submitted evidence of contradictory facts”. Guillory,

95 F.3d at 1326.

      The     Government        submitted      several         sworn        statements

establishing:       the prison recreation yard was inspected daily for

defects and hazards; the mechanical lift used on the yard in

February of 2003 did not create any ruts; none of the inmate crews

reported any ruts during the time surrounding Massay’s accident;

and no inmates reported injuries concerning ruts on the yard during

that time period.

      To oppose the summary-judgment motion, Massay submitted his

own   sworn   statement,      which   contained      statements        by    a   prison

recreation officer and a statement from his orthopedist’s report,

which was not produced. The officer’s and orthopedist’s statements

                                         3
are inadmissible hearsay.       See FED. R. EVID. 801(c).      Accordingly,

we cannot consider them as raising a material-fact issue.                 See

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th

Cir. 1987).

      Massay’s sworn statement also declared that witnesses saw

heavy-equipment tires stuck in the mud on the yard and that the BOP

forced inmates to play athletics on the field, constantly neglected

the field, and caused his injuries.        He provided only conclusory

assertions to contend the BOP breached its duty and caused his

injuries.    “A summary assertion made in an affidavit is simply not

enough evidence to raise a genuine issue of material fact.”            Melton

v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th

Cir. 1997); see also FED. R. CIV. P. 56(e).

      Massay submitted the affidavit of a fellow inmate before the

Government moved for summary judgment.          Although entitled “SIGNED

AND SEALED AFFIDAVIt” and indicating his fellow inmate gave the

statement under oath, it is not notarized and does not indicate it

was   made   “under   penalty   of   perjury”   or    that   the   statements

contained therein were “true and correct.”           Thus, this document is

not competent summary-judgment evidence.             See 28 U.S.C. § 1746;

Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.

1988).

      Viewing the competent summary-judgment evidence in the light

most favorable to Massay, we cannot reasonably infer the BOP



                                      4
breached its duty or caused Massay’s injuries.   For the foregoing

reasons, summary judgment was proper.

                                                      AFFIRMED




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