     Case: 11-11102     Document: 00511876739         Page: 1     Date Filed: 06/05/2012




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

                                                                            FILED
                                                                            June 5, 2012

                                     No. 11-11102                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TONY LAMAR VANN

                                                  Plaintiff-Appellant
v.

GILBERT, Fort Worth Police Officer #3598; FERREN, Fort Worth Police
Officer #3613; WOOD, Fort Worth Police Officer #3653,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CV-106


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


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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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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

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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., 392 F.3d 812, 817
(5th Cir. 2004) (citations and internal quotation marks omitted).
      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, 262 F. App’x 650, 652
(5th Cir. 2008) (unpublished) (citing Moore v. Willis Indep. Sch. Dist., 233 F.3d
871, 876 (5th Cir. 2000)) (holding that the district court did not abuse its
discretion in denying the plaintiff’s motion to compel because the motion was



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filed after scheduling deadlines had expired and included a number of irrelevant
discovery requests).
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., 591 F.3d 439, 442 (“[T]he movant has the burden of showing this
court that summary judgment is appropriate.” (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). Accordingly, we affirm the district court’s denial of
Vann’s motion for summary judgment.
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, 602 F.3d 291, 309 (5th Cir. 2010). We have held that:
      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., 57 F.3d 1406, 1416 (5th Cir. 1995). Vann did not
specify in his motion what district court action he would be challenging. He had
also filed multiple frivolous motions in the district court and sought relief from


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this court four times, prompting a sanction warning by each court. The district
court did not abuse its discretion in refusing to grant the stay.
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, 596 F.3d 260, 266 (5th Cir.
2010) (citations and internal quotation marks omitted). Under Federal Rule of
Civil Procedure 56(a), “[t]he court shall grant summary judgment 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.” A party asserting that a fact is
genuinely disputed must cite “to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or . . . show[] that
the materials cited do not establish the absence . . . of a genuine dispute . . . .”
Fed. R. Civ. P. 56(c)(1)(A), (B). “The court need consider only the cited materials,
but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). The
trial court may not weigh evidence or make credibility determinations when
considering a motion for summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). “We construe all facts and inferences in the light most
favorable to the nonmoving party when reviewing grants of motions for
summary judgment.” Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2008)
(internal citations omitted). However, “[a]fter the non-movant has been given
the opportunity to raise a genuine factual issue, if no reasonable juror could find
for the non-movant, summary judgment will be granted.” Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citing Celotex, 477 U.S.
at 322).
A. Vann’s False-Arrest and False-Imprisonment Claims



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       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, 538 F.3d 373, 376 (5th Cir. 2008). The district court was correct that
any judgment that the final arrest and imprisonment was wrongful “would, in
effect, imply that his conviction was invalid.” Notably, Vann on appeal does not
contest, nor even address, the district court’s application of Heck.1
B. Vann’s Excessive-Force Claims
       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



       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.

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record for Vann’s claim. Miss. River Basin Alliance v. Westphal, 230 F.3d 170,
174 (5th Cir. 2000) (citing Celotex, 477 U.S. at 322). Vann, the non-movant,
could not rely on mere allegations in his pleadings; instead, he had to respond
to the motion for summary judgment by setting forth particular facts indicating
that there was a genuine issue for trial. See Bazan ex rel. Bazan v. Hidalgo
Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (quoting Liberty Lobby, 477 U.S. at 248).
Although Vann’s complaint stated that “one of the defendants put his foot on
plaintiffs [sic] neck for a very, very, very long time. Causing injury to plaintiffs
[sic] neck and back,” Vann’s only evidence, his declaration and Reeves’s
declaration, did not offer any evidence of description of injury.          Without
supporting evidence of any injury, even minor injury, mere allegations of injury
are insufficient to defeat a motion for summary judgment, as the district court
held. See Park v. Stockstill Boat Rentals, Inc., 492 F.3d 600, 605 (5th Cir. 2007)
(“It is not enough for [the plaintiff] to rest on mere conclusory allegations or
denials in his pleadings. [The plaintiff] must point out, with factual specificity,
evidence demonstrating the existence of a genuine issue of material fact on every
component of his case.” (citations omitted)). We therefore affirm the district
court’s grant of summary judgment on Vann’s excessive force claims.
C. Vann’s 42 U.S.C. § 1985 Claims
      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., 288 F.3d 721, 725 (5th Cir. 2002) (quoting Little v. Liquid Air

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Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)) (internal quotation marks
omitted). Because Vann failed to offer any evidence upon which to base a charge
of conspiracy to deprive him of his civil rights, summary judgment was properly
granted.
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.




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