     Case: 09-60774     Document: 00511133460          Page: 1    Date Filed: 06/07/2010




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

                                                  FILED
                                                                            June 7, 2010

                                     No. 09-60774                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



GEORGIA MAYE MCCOY, individually and on behalf of the wrongful death
beneficiaries of N.S. Gordon, Jr.,

                                                   Plaintiff - Appellant
v.

LOWNDES COUNTY, MISSISSIPPI; OFFICER MARC WILEY, in his official
and individual capacities; OFFICER ARCHIE WILLIAMS, in his official and
individual capacities; SHERIFF C. B. (BUTCH) HOWARD, in his official and
individual capacities,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1-08-CV-144


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        The plaintiff, Georgia Maye McCoy, appeals the district court’s grant of
summary judgment against her claim under 42 U.S.C. § 1983 seeking damages




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60774      Document: 00511133460         Page: 2    Date Filed: 06/07/2010

                                      No. 09-60774

for the death of her son, Nick Gordon.1 Having reviewed the parties’ arguments
and the record in this case, we conclude that the district court committed no
reversible error. The district court did not abuse its discretion by deciding
summary judgment without further discovery, as the plaintiff asked for no
further discovery and the plaintiff points to no prejudice from the lack of further
discovery.    Turning to the merits of the summary judgment decision, the
evidence shows that no reasonable jury could conclude that the officers used
excessive force. There were only three witnesses to the altercation, the officers
and a third-party witness. All agree that the altercation lasted approximately
four to five minutes and that the officers initially approached Gordon at the top
of a staircase after Gordon refused to come down. The officers say Gordon had
a nail gun, which they told him drop, and the witness confirmed that they told
him to drop whatever he was holding, though she was unsure what the object
was. When Gordon refused, the officers tased him. A fight ensued. The witness
said she saw Gordon strike one officer in the head with the object, causing blood
to pour from the officer’s head. After successive blows, the officer was unable to
get up. Gordon also hit the other officer multiple times, causing him to stagger.
After the fight continued some more, the officer fired his gun at Gordon twice,
at which point Gordon took another swing at the officer. No reasonable jury
could conclude the force in this case was excessive. Accordingly, the county and
the individual defendants are entitled to summary judgment.
       The judgment of the district court is
                                                                            AFFIRMED.




       1
         The district court also granted summary judgment on state-law claims, but McCoy
does not appeal the dismissal of those claims. Further, we do not address McCoy’s contention
that her son’s rights under the Americans with Disabilities Act were violated, as this claim
was never presented to the district court.

                                             2
