                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                          January 30, 2006
                                FOR THE FIFTH CIRCUIT
                               _________________________
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk
                                           No. 04-31177
                                         Summary Calendar
                                    _________________________

KELVIN PAUL WELLS, SR.,

                                                                                    Plaintiff-Appellant,

versus

DOUG WELBORN; TRACY VIOLA,
also known as T. Vuela; DEBRA BELL,

                                                                                 Defendants-Appellees.

                          ________________________________________

                            Appeal from the United States District Court
                                for the Middle District of Louisiana
                                        (No. 03:03-CV-58)
                          ________________________________________

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

         In this civil rights action, the district court granted summary judgment in favor of defendants-

appellees. For the reasons that follow, we affirm.

                                 I. FACTS AND PROCEEDINGS

         Kelvin Paul Wells, Sr., litigated various civil cases within the 19th Judicial District Court of




         *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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East Baton Rouge Parish, Louisiana.1 In at least two of the actions from which Wells’s complaint

arises, he was allowed to proceed in forma pauperis during a portion of the proceedings.2

Subsequently, in both actions, the Louisiana courts revoked Wells’s pauper status.

           During the course of the previous litigation, Wells was cast with costs by the Louisiana

courts and assessed with filing fees by defendants-appellees (the “Clerk”). After his pauper status had

been revoked, Wells attempted to file motions to proceed again in forma pauperis. On both

occasions, the motions, which accompanied several other pleadings, were sent to the Clerk by

facsimile transmission and were received on December 11 and 18, 2002, respectively. After receiving

each of these transmissions, the Clerk acknowledged receipt of the filings and sent a notice that the

original signed document and the applicable fees should be forwarded to the Clerk within five days,

pursuant to LA. REV. STAT. § 13:850. When, on December 23, 2002, the originals and the

outstanding balance due had not been delivered, the Clerk returned the pleadings to Wells.

       The district court found that the Clerk’s refusal to file the motion to proceed in forma

pauperis, if it could be proven, was a violation of Wells’s right to access the court under the Due

Process and Equal Protection clauses of the Fourt eenth Amendment. However, the district court

determined that the Clerk was entitled to qualified immunity because the constitutional right in

question was not so clearly established that a reasonable official would understand that the official’s

actions violated a constitutional right. On the basis of this finding, the district court granted the



       1
        The district court’s ruling on summary judgment sets out the details of the state court
proceedings.
       2
        In one, the Clerk filed Wells’s motions to proceed in forma pauperis, despite the fact that
Wells was in arrears for over $2000 at the time of filing. The motions were subsequently denied by
the Louisiana courts.

                                                 -2-
Clerk’s motion for summary judgment.

                                  II. STANDARD OF REVIEW

       This court reviews a district court’s grant of summary judgment de novo. Cooper Tire &

Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005) (citing Ford Motor Co. v. Tex. Dep’t of

Transp., 264 F.3d 493, 498 (5th Cir. 2001)); Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.

2004) (citing Boston Old Colony Ins. Co. v. Tiner Assocs., Inc., 288 F.3d 222, 227 (5th Cir. 2002)).

In our review of a summary judgment, we apply the same standard as the district court. Cooper Tire,

423 F.3d at 454. Summary judgment is appropriate if there are no genuine issues of material fact and

the movant is entitled to a judgment as a matter of law. Id. (quoting FED. R. CIV. P. 56(c)).

       A court considering a motion for summary judgment must view evidence and inferences in

the light most favorable to the nonmovant. Bryan, 375 F.3d at 360; Moreno v. Summit Mortgage

Corp., 364 F.3d 574, 576 (5th Cir. 2004). Moreover, “[a] material fact is one that might affect the

outcome of the suit under the governing law and a dispute about a material fact is genuine . . . if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Instone

Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423, 427 (5th Cir. 2003)

(internal quotations omitted). The burden falls on the movant to demonstrate “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 Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If the movant meets this

burden, “a nonmovant must bring forward sufficient evidence to demonstrate that a genuine issue of

material fact exists for every element of a claim.” Id. (citing Fontenot v. Upjohn Co., 780 F.2d 1190,

1196 (5th Cir. 1986)). Summary judgment is appropriate if the nonmovant “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on which


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that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. See also Instone

Travel, 334 F.3d at 427.

                                          III. DISCUSSION

        The district court ruled that the Clerk did violate Wells’s constitutional right, but the right was

not sufficiently well established to make the Clerk aware of the violation.3 As a result, the district

court found the Clerk entitled to qualified immunity and granted summary judgment in favor of the

Clerk. The district court’s conclusion, with respect to the constitutional violation, depends on its

finding that the Clerk, on December 11 and 18, 2002, refused to file Wells’s pleadings, which

included a motion to proceed in forma pauperis, due to Wells’s failure to pay outstanding fees. The

undisputed facts do not support this finding.

        In Louisiana, litigants in a civil action may file pleadings by facsimile. See LA. REV. STAT. §

13:850. However, with the privilege of using facsimile transmission comes additional duties, which

are not attendant if a litigant simply files an original pleading with the court. For a facsimile pleading

to be entitled to the same force and effect as an original pleading, the party filing the document must,

within five business days, provide (1) the original signed document, (2) the applicable filing fee, if any,


        3
          According to the district court, the only potential constitutional violations occurred in the
prosecution of the divorce petition and subsequent contempt proceedings relating to the enforcement
of the visitation agreement. These events took place on December 11 and 18, 2002, respectively.
Wells does not contest this finding, and we limit our review to the two instances identified by the
district court. The district court also declined to exercise supplemental jurisdiction over the state law
claims. Wells does not contest this decision, and we, therefore, do not reach those claims.
        With respect to Wells’s claims of racial and sexual discrimination, the district court pointed
out that Wells had failed to identify any evidence of discrimination due to race. The district court
held that Wells “cannot show that he was treated differently from persons outside of his protected
class.” The same is true for his sex discrimination claim. The summary judgment evidence showed
that the Clerk acted in accord with the policies of the office and the laws of Louisiana. Wells has
failed to show anything different. Summary judgment is appropriate for those claims.

                                                   -4-
and (3) a transmission fee of five dollars.     LA. REV. STAT. § 13:850(B). 4 If the party filing a

document fails to comply with these conditions, “the facsimile filing shall have no force or effect.”

LA. REV. STAT. § 13:850(C). Nevertheless, when an original document has been presented within

the allotted time, Louisiana specifically permits a litigant to file a motion to proceed in forma

pauperis in lieu of paying applicable fees. See Tenney v. Burlington Northern & Sante Fe Ry. Co.,

03-1260, p. 4 (La. 1/21/04); 863 So. 2d 526, 528 (holding that, where the litigant submitted the

original pleading within the time allotted, “an application to proceed in forma pauperis satisfies the

requirement of [LA. REV. STAT. §] 13:850 that applicable filing fees and a transmission fee be paid

within five days of a facsimile filing”).

        In his complaint, Wells alleged that he had been denied access to the courts when the Clerk

returned and ignored his pleadings. His motion for summary judgment did not identify any specific


        4
         LA. REV. STAT. § 13:850 provides, in part:
                A. Any paper in a civil action may be filed with the court by facsimile
                transmission. All clerks of court shall make available for their use
                equipment to accommodate facsimile filing in civil actions. Filing shall
                be deemed complete at the time that the facsimile transmission is
                received and a receipt of transmission has been transmitted to the
                sender by the clerk of court. The facsimile when filed has the same
                force and effect as the original.
                B. Within five days, exclusive of legal holidays, after the clerk of court
                has received the transmission, the party filing the document shall
                forward the following to the clerk:
                    (1) The original signed document.
                    (2) The applicable filing fee, if any.
                    (3) A transmission fee of five dollars.
                C. If the party fails to comply with the requirements of Subsection B,
                the facsimile filing shall have no force or effect. The various district
                courts may provide by court rule for other matters related to filings by
                facsimile transmission. . . .

                                                  -5-
facts in support of his claim, but purported to adopt the entire record in the various state court

proceedings and incorporate them as a “true history of facts.” By contrast, in the Clerk’s statement

of uncontested facts, the Clerk provided the district court with a lengthy history of the state court

proceedings, all supported by record evidence.          In response to the Clerk’s statement and

documentation, Wells failed to controvert any of the Clerk’s facts, except to assert, again without

specific support in the record, that the Clerk was attempting to “mislead” the court.

       In the statement of uncontested facts, the Clerk maintained that Wells’s pleadings, which were

submitted by facsimile, were returned unfiled because (1) the applicable fees had not been paid and

(2) the originals were not provided within five days as required by law. Wells did not controvert this

statement, nor does he challenge it on appeal.5 The Clerk has established that his refusal to file the

pleadings was not simply due to Wells’s purported inability to pay applicable fees, but was due to

Wells’s failure to provide the originals of the pleadings. Had Wells provided the originals, under the

rationale of Tenney, the Clerk would have been obligated to file the pleadings regardless of any

outstanding amounts due because Wells’s motion to proceed in forma pauperis would have satisfied

the payment requirements of LA. REV. STAT. § 13:850(B). However, having failed to submit the

original signed documents, Wells prevented the Clerk from filing the pleadings.

       While Wells may have shown that he was denied the abilit y to file pleadings by facsimile

without providing the originals and applicable fees, he has failed to show that he was



       5
         According to the district court’s local rules, all material facts set out in a summary judgment
movant’s statement of uncontested material facts are “deemed admitted, for purposes of the motion,
unless controverted.” M.D. LA. LOC. R. 56.2. See also Smith v. Brenoettsy, 158 F.3d 908, 910 n.2
(5th Cir. 1998) (applying the rule, formerly Local Rule 2.10); Soc’y of Roman Catholic Church of
Diocese of Lafayette and Lake Charles v. Interstate Fire & Cas. Co., 26 F.3d 1359, 1362 n.2 (5th
Cir. 1994) (same).

                                                 -6-
unconstitutionally denied access to the courts. To conclude, as the district court did, that the Clerk’s

refusal to file Wells’s facsimile pleadings violated his constitutional right of access to the courts,

would be to hold that litigants have a constitutional right to file pleadings by facsimile. There is no

authority in support of such a holding, and, on these facts, this court will not hold that such a right

exists.

                                         IV. CONCLUSION

          Because the undisputed facts in the record support a judgment as a matter of law in favor of

the defendants-appellees, we AFFIRM.




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