     Case: 10-60731 Document: 00511441239 Page: 1 Date Filed: 04/11/2011




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

                                                 FILED
                                                                            April 11, 2011
                                     No. 10-60731
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOHN JAMES GALADA,

                                                   Plaintiff-Appellant

v.

GEORGE H. PAYNE, JR.; DIANNE GATSON-RILEY, Major; MARTIN
LIPSCOMB, Deputy Sheriff; HARRISON COUNTY ADULT DETENTION
CENTER JAIL ADMINISTRATOR; SHERIFF OF HARRISON COUNTY,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 1:07-CV-937


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       John James Galada, Mississippi prisoner # 131955, appeals the district
court’s grant of the defendants’ motions for summary judgment and dismissal
for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6).
In his 42 U.S.C. § 1983 civil suit, Galada claimed that prison officials had
violated his Fourteenth Amendment right to due process by subjecting him, as



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60731 Document: 00511441239 Page: 2 Date Filed: 04/11/2011

                                  No. 10-60731

a pretrial detainee, to deplorable conditions of confinement caused by
overcrowding and by using excessive force as a form of punishment.
      Galada argues that summary judgment was inappropriate in this case
because he presented a genuine dispute and because the record was not properly
developed.    He further asserts that the district court erred in denying his
motions for appointment of counsel and in dismissing his complaint for failure
to state a claim upon which relief can be granted. In addition, Galada asserts
that the proper standard to analyze his use of force claim was not whether
officials used excessive force but, rather, whether he received corporal
punishment without due process.
      We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009). Galada
fails to make an adequate showing of a genuine dispute, and the evidence he
presented to the court tends to establish only that the facility in which he was
housed was overcrowded. This court has held that absent a showing that the
conditions constituted “punishment” under the Fourteenth Amendment,
“[o]vercrowding of persons in custody is not per se unconstitutional.” Collins v.
Ainsworth, 382 F.3d 529, 540 (5th Cir. 2004). Galada has not made such a
showing here.
      Galada’s contention that summary judgment was inappropriate because
the record was undeveloped due to his inability to complete discovery is
unavailing.     Galada was provided ample time to conduct discovery and
acknowledged that many of the documents he sought to support his claims were
part of public record. In addition, Galada failed to even request a Federal Rule
of Civil Procedure 56 continuance for further discovery in the district court and
did not provide the district court with specific facts explaining his inability to
make a substantive response to the summary judgment motion and
demonstrating how additional time for discovery would have allowed him to



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                                   No. 10-60731

present a genuine issue of material fact. Washington v. Allstate Ins. Co., 901
F.2d 1281, 1285 (5th Cir. 1990).
      The denial of Galada’s appointment of counsel motion was not an abuse
of discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). Galada’s
constitutional issues are not particularly complex, and he has proven himself
more than capable of competently proceeding without the assistance of counsel.
See Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988); Branch v. Cole, 686 F.2d
264, 266 (5th Cir. 1982).
      Galada does not address the district court’s specific reasons for dismissing
his claims against Dianne Gatson-Riley in her official capacity.          When an
appellant fails to identify error in the district court’s analysis, it is the same as
if the appellant had not appealed the judgment. See Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). In addition, Galada
does not plead any specific facts tending to establish Gatson-Riley’s liability in
her individual capacity; therefore, he has not demonstrated that his right to
relief rises above the speculative level. See Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009), cert. denied, 130 S. Ct. 1505 (2010). Accordingly, the district
court did not err in dismissing the claims against Gatson-Riley in her individual
capacity. See id.
      Galada does not cite to any cases utilizing a corporal punishment standard
in the context of excessive use of force against a pretrial detainee. The standard
Galada espouses is essentially the same one we use to analyze excessive use of
force claims. In order to prevail on a claim of excessive use of force, the plaintiff
must establish that the force was not applied in a good-faith effort to maintain
or restore discipline, but rather was applied maliciously and sadistically with the
intention to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Although
a showing of “significant injury” is not necessary, we require that the plaintiff
have suffered at least some form of injury that is more than de minimis. Glenn
v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). Galada has not made the

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                                No. 10-60731

required showing and acknowledges that he suffered no significant physical
injuries. See id. Given that he alleges no physical injuries, Galada is barred
from seeking damages for mental or emotional distress. See 42 U.S.C.§ 1997e(e);
Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005.
      AFFIRMED.




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