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

                                                                            FILED
                                                                        December 30, 2008

                                     No. 08-30429                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




WALTER JACKSON

           Plaintiff - Appellant

  v.

KENNETH BAILEY, Individually and in his official capacity as Sheriff of
Claiborne Parish and as a corrections officer for the Claiborne Parish
Detention Center; RACHEL ROBINSON, Individually and in her official
capacity as an employee of the Claiborne Parish Detention Center

           Defendants - Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:06-CV-1083


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Walter Jackson appeals the district court’s grant of summary
judgment in favor of Appellees and subsequent denial of Appellant’s motion for
new trial.    Appellant failed to respond to Appellees’ motion for summary


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-30429

judgment, and the district court dismissed Appellant’s claims asserted under 42
U.S.C. § 1983 and state law. For the following reasons, we affirm the judgment
of the district court.


                                       I.
      Appellant Walter Jackson, Jr. was an inmate at the Claiborne Parish
Detention Center in Homer, Louisiana. Appellant claims that while he was on
a work crew with several other inmates washing public school buses, he climbed
onto the roof of one of the buses to wash it and slipped and fell. Due to injuries
related to this incident, Appellant filed a claim against Appellees Claiborne
Parish Sheriff Kenneth Bailey and Nurse Rachel Robinson, among other
employees of the Claiborne Parish Detention Center, asserting violations of his
constitutional rights under 42 U.S.C. § 1983 and Louisiana state law negligence
claims.
      Appellant served Appellees with discovery requests in May 2007. Trial
was set for May 19, 2008, and the pre-trial deadline for discovery and dispositive
motions was set for January 22, 2008. On January 21, 2008, the parties filed a
joint motion to extend that deadline until February 5, 2008. Appellant never
received responses to his discovery requests. On February 5, 2008, Appellees
filed a motion for summary judgment, seeking dismissal of Appellant’s claims.
Appellant’s opposition was due on February 20, 2008. Appellant did not respond
to Appellee’s motion, but on March 5, 2008, two weeks after the deadline to file
an opposition expired, Appellant filed a motion for extension of time to respond
to the summary judgment motion, arguing that without responses to the
discovery requests, Appellant could not properly respond to Appellee’s summary
judgment motion. The district court granted summary judgment and denied
Appellant’s request for an extension, noting that it had been filed beyond the
date by which Appellant was required to respond to the motion for summary


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judgment.    Appellant then filed a motion for new trial—reasserting the
arguments made in his motion for an extension—which was denied by the
district court. Appellant appeals both the district court’s grant of summary
judgment and the denial of Appellant’s motion for a new trial.
                                       II.
      This Court does not ordinarily review a district court’s denial of a motion
for new trial. Toops v. Gulf Coast Marine Inc., 72 F. 3d 483, 486–87 (5th Cir.
1996); Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986) (“Ordinarily, a
district court’s decision not to grant a new trial under Rule 59(a) is not
appealable.”). An appeal from a denial of a new trial “merely restates the attack
on the merits of the final judgment. It is from the final judgment that the appeal
should be taken.” Gov’t Fin. Servs. v. Peyton Place, 62 F.3d 767, 774 (5th Cir.
1995) (citation omitted). We will only review the decision not to grant a new
trial when “new matters arise after the entry of the judgment.” Id. Because no
new matters arose after the entry of judgment in this case, and the issue
concerning the Appellees’ failure to respond to Appellant’s discovery request was
before the district court when it ruled on the summary judgment, we will review
only the district court’s order granting summary judgment.
      This Court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Hirras v. Nat’l R.R. Passenger
Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary judgment is proper if the
record reflects “that there is no genuine issue as to any material fact and that
the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The party seeking summary judgment is required to demonstrate that there is
an absence of evidence to support the nonmoving party’s case. Celestine v.
Petroleos De Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001) (citing Celotex v.
Catrett, 477 U.S. 317, 325 (1986)). To survive a proper motion for summary
judgment, the nonmovant must “bring forward sufficient evidence to

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demonstrate that a genuine issue of material fact exists for every element of a
claim.” Celestine, 266 F.3d at 349.
      Appellant first argues that the district court erred in granting summary
judgment despite Appellant’s motion requesting an extension of time to respond
to the summary judgment. Appellant argues that he could not respond to the
summary judgment because he had not received responses to his discovery
requests.   In Enplanar, Inc. v. Marsh, we stated that, in the context of a
summary judgment, a nonmovant is entitled to receive a continuance for
additional discovery if they:
      (i) requested extended discovery prior to the court’s ruling on
      summary judgment; (ii) placed the district court on notice that
      further discovery pertaining to the summary judgment motion was
      being sought; and (iii) demonstrated to the district court with
      reasonable specificity how the requested discovery pertained to the
      pending motion.

11 F. 3d 1284, 1291–92 (5th Cir. 1994). This Court has also stated that such a
continuance should not be granted when “the non-moving party has not diligently
pursued discovery of the evidence.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d
1257, 1267 (5th Cir. 1991).
      Here, Appellant was not requesting additional discovery, but was asking
for responses to previously propounded discovery requests. As noted by the
district court, in the nine months between the discovery request and the
summary judgment motion, no motion to compel discovery was filed to secure the
production of the allegedly necessary information.         In addition, although
Appellant moved for an extension before the summary judgment was ruled on,
Appellant failed to file the motion for an extension of time until two weeks after
the deadline to respond to the summary judgment had expired. Appellant has
not even attempted to justify this delay in filing for an extension. Because
Appellant failed to exercise diligence in obtaining the allegedly necessary


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evidence, the district court did not err in resolving the motion for summary
judgment in spite of Appellant’s late-filed request for an extension.
      Appellant also argues that the court erred in finding there was no issue of
genuine material fact as to Appellant’s claims. Appellant failed to file any
substantive response to Appellee’s motion for summary judgment. On appeal,
Appellant points to no facts that provide a satisfactory evidentiary basis for his
claims. The district court concluded that (1) there was no evidence of deliberate
indifference on the part of the defendants to support the alleged violation of
Appellant’s constitutional rights; (2) there was evidence that Appellant received
prompt and thorough medical treatment after the incident; (3) there was no
evidence in the record to support the claim that Appellee Bailey failed to train his
employees or promulgated any policy related to Appellant’s fall or subsequent
medical treatment; and (4) there was no evidence to support a claim of negligence
against the Appellees.     Appellant does not point to any contrary evidence
sufficient to create a fact issue in the record. The district court did not err in
granting summary judgment in favor of the Appellees. The judgment of the
district court is AFFIRMED.




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