     Case: 16-30344         Document: 00514507458          Page: 1    Date Filed: 06/11/2018




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

                                         No. 16-30344                         FILED
                                                                          June 11, 2018
                                                                         Lyle W. Cayce
CHADWICK WRIGHT,                                                              Clerk

                 Plaintiff - Appellant

v.

WILLIAMS SMITH, Lieutenant, Suing in personal capacity; GARY
AYMOND, Captain, Suing in personal capacity,

                 Defendants - Appellees




                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                                USDC No. 2013-CV-775


Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Chadwick Wright, Louisiana prisoner # 368195, filed a pro se civil rights
complaint, under 42 U.S.C. § 1983, against several prison officials: Lieutenant
William Smith, 1 Captain Gary Aymond, Nurse Supervisor Katherine Bell, and
an unidentified “Jane Doe” medical technician employed at the prison. Wright
alleges that, in April 2012, defendant Gary Aymond charged Wright with a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   The correct spelling of Lt. Smith’s first name is William, not Williams.
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false retaliatory disciplinary report in response to Wright’s exercise of his First
Amendment right to seek redress of grievances and that, on June 30, 2012,
defendant Aymond and the remaining defendants variously subjected Wright
to an improper search, charged him with false and retaliatory disciplinary
reports, subjected Wright to excessive force, and exhibited deliberate
indifference to Wright’s serious medical needs.             The magistrate judge
recommended, and the district court granted, summary judgment in favor of
the defendants. See Wright v. Smith, No. 3:13-CV-775, 2016 WL 1032802 (Feb.
25, 2016). For the reasons given below, we affirm in part and vacate in part
the district court’s order and remand for further proceedings.
      As an initial matter, in his appellate brief, Wright does not challenge the
district court’s dismissal of Wright’s claims against Bell and Doe for failure to
effect service of process. See Fed. R. Civ. Proc. 4(m). Nor does Wright challenge
the district court’s dismissal of his claims, as time-barred, pertaining to the
events of April 2012. Likewise, Wright does not assert error regarding the
district court’s dismissal, on summary judgment, of Wright’s Fourth
Amendment claim against Aymond. By failing to challenge the district court’s
reasoning regarding these claims, Wright has abandoned any such claims on
appeal. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we
liberally construe the briefs of pro se appellants, we also require that
arguments must be briefed to be preserved.”). Thus, the only claims remaining
are Wright’s claims against Smith and Aymond for excessive force, and against
Aymond for retaliation, pertaining to the events of June 30, 2012. We turn to
those now.
      In the proceedings before the magistrate judge, Smith and Aymond
moved for summary judgment, relying on the pleadings, affidavits, copies of
the disciplinary reports, and portions of Wright’s medical records.         Wright
opposed the motion for summary judgment, relying only on his own unsworn
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declaration. Importantly, Wright’s unsworn declaration did not fully comply
with the requirements of 28 U.S.C. § 1746(2). Although Wright’s declaration
stated that the statements contained therein were, “true and correct,” the
declaration did not indicate that the statements were made “under penalty of
perjury,” as required by § 1746(2).         Thus, the magistrate judge held that
Wright’s declaration was not competent summary judgment evidence. Wright,
2016 WL 1032802 at *1 n.2. 2 Because, apart from his declaration, Wright had
no evidence to oppose summary judgment, the magistrate judge considered
only the defendants’ summary-judgment evidence and concluded that Wright
had not shown the existence of a genuine issue of disputed fact sufficient to
preclude summary judgment. As a result, the magistrate judge recommended
summary judgment in favor of the defendants.
      Wright timely objected to the magistrate’s recommendation, arguing
that he should be given an opportunity to correct the defect in his original
declaration.     Along with his objections, Wright submitted an amended
declaration for the district court’s review. In his amended declaration, Wright
stated that his statements were made “under penalty of perjury,” thus
remedying the defect.
      The district court agreed with the magistrate’s recommendation,
however, and granted the defendants’ motion for summary judgment.
Although the district court’s brief opinion indicated that the court reviewed
and considered Wright’s objection, it did not indicate whether the court
considered Wright’s amended declaration.




      2 We note that, following the 2010 amendments to Federal Rule of Civil Procedure 56,
declarations and affidavits are only one way to support a fact for summary-judgment
purposes, the key question being only whether the particular material can be presented in
an admissible form. See Lee v. Offshore Logistical & Transport, L.L.C., 859 F.3d 353, 354–
55 (5th Cir. 2017) (citing Fed. R. Civ. P. 56(c)(1)).
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      Wright timely appealed. He argues that the district court abused its
discretion by not giving him an opportunity to properly support his assertions
of fact in opposition to the defendants’ summary-judgment motion. He does
not dispute the magistrate judge’s determination that his original declaration
was defective, but he argues that his amended declaration remedied the
defects. He also argues that the facts asserted in his amended declaration,
which are substantially identical to those in his original declaration, preclude
summary judgment on his excessive-force and retaliation claims.
      “We review the district court’s grant of summary judgment de novo. To
decide whether summary judgment is proper here, we must, as a threshold
matter, determine what evidence in the record is to be considered.” Davis v.
Hernandez, 798 F.3d 290, 292 (5th Cir. 2015) (citation omitted). “Of course, as
a general matter, the competent evidence of the summary judgment
nonmovant is to be accepted and credited.” Id. (citation omitted). When
objecting to a magistrate judge’s recommendation on summary judgment,
litigants may submit additional evidence for the district court’s de novo review.
Id. In Freeman v. Bexar County, we held that the district court is not required
to accept any such new evidence but has discretion to determine whether the
new evidence should be accepted in the light of all pertinent circumstances. Id.
(citing Freeman, 142 F.3d 848, 852–53 (5th Cir. 1998)). Thus, we review the
district court’s decision whether to permit the new evidence for abuse of
discretion.
      This appeal presents a situation nearly identical to that which we
addressed in Davis v. Hernandez. See 798 F.3d 290. In Davis, a pro se inmate
claimed that jail staff used excessive force against him, violating his
constitutional rights. Id. at 291. The plaintiff opposed the defendants’ motion
for summary judgment using an unsworn declaration that did not declare
“under penalty of perjury” that it was true and correct. Id. The magistrate
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judge held that the plaintiff’s declaration was not competent summary-
judgment evidence. Id. When the plaintiff objected to the magistrate judge’s
recommendation, he submitted an amended declaration, which stated that the
declarations were made under penalty of perjury. Nevertheless, like this case,
the district court overruled the plaintiff’s objections, adopted the magistrate
judge’s recommendation, and granted summary judgment to the defendants.
The district court “did not acknowledge that Davis, on objection to the
magistrate judge’s report, reiterated his testimony while declaring it under
penalty of perjury to be true and correct.” Id. at 292. Because the plaintiff’s
amended declaration became competent summary-judgment evidence upon
the plaintiff’s declaration that it was made under penalty of perjury, and
because the district court’s opinion did not indicate whether the court had
exercised its discretion, we held that the district court did not actually exercise
its discretion under Freeman to decline to consider the amended declaration.
Id. Such is the case here.
      Although we noted in Davis that we could simply vacate the district
court’s summary judgment and remand the case with instructions that the
district court decide in the first instance whether to accept new evidence, we
further held that it would have been an abuse of discretion under Freeman to
exclude the amended declaration. Id. at 292–93. In reaching that conclusion,
we considered four factors. First, we noted, “importantly, Davis is pro se, and
federal courts . . . have a ‘traditional disposition of leniency toward pro se
litigants.’” Id. at 293 (quoting Spotville v. Cain, 149 F.3d 374, 477 (5th Cir.
1998) (per curiam)). Second, “although Davis did not initially satisfy 28 U.S.C.
§ 1746 when he opposed summary judgment, he came close.” Id. “When a
violation of this nature is committed by an unrepresented litigant who corrects
the error promptly upon learning of it, as did Davis, there is an especially
compelling case for the court to exercise its discretion to excuse the error.” Id.
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Third, the substance of the amended testimony did not change from that of the
original testimony. “An attestation under 28 U.S.C. § 1746 was added, but the
facts remained the same.” Id. at 294. Thus, there was no prejudice to the
defendants. Id. Fourth, “it matters that Davis’s entire evidentiary response to
the [summary-judgment motion] is at issue. If his evidence is excluded, he will
be left speechless against [the defendants’ argument, which] calls for dismissal
of the case.” Id. at 294. Based upon these four factors, we held that the
exclusion of Davis’s evidence would be an abuse of discretion. Id.
      All four considerations are present here. Wright is pro se. Wright’s error
here is the same as that in Davis. The substance of Wright’s testimony did not
change in his amended declaration, and thus there is no prejudice to the
defendants. Finally, Wright’s declaration is his “entire evidentiary response”
to the defendants’ motion for summary judgment. See id. Accordingly, under
Davis, on remand, it would be an abuse of discretion for the district court not
to consider Wright’s amended declaration in evaluating whether the
defendants are entitled to summary judgment.
      For the foregoing reasons, the district court’s grant of summary
judgment is affirmed in part and vacated in part. To sum up what we have
held, Wright has abandoned all claims except his excessive-force and
retaliation claims against Smith and Aymond, pertaining to the events of June
2012 only. With respect to those claims, and those claims only, we vacate the
district court’s grant of summary judgment and remand for further
proceedings not inconsistent with this opinion. Specifically, we remand for the
district court to take in as evidence Wright’s amended declaration and to
consider whether Smith and Aymond are entitled to summary judgment in the
light of the facts asserted therein. We affirm in all other respects.
                     AFFIRMED in part; VACATED in part; and REMANDED.


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