     Case: 18-30717      Document: 00515122179        Page: 1     Date Filed: 09/18/2019




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

                                                                               FILED
                                   No. 18-30717                       September 18, 2019
                                 Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk



RONNIE K. HONGO,

                                                Plaintiff−Appellant,

versus

JERRY GOODWIN; RYAN KIMBALL; JAMES ARNOLD; CHRIS EVANS;
SCOTT COTTRELL; SERGEANT SHANICE MORGAN,

                                                Defendants−Appellees.




                  Appeals from the United States District Court
                      for the Western District of Louisiana
                                No. 5:16-CV-324




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

      Ronnie Hongo, Louisiana prisoner #98420, appeals a summary judgment


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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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                                  No. 18-30717

in his civil rights suit under 42 U.S.C. § 1983. He also filed a motion for extra-
ordinary relief requesting a temporary restraining order (“TRO”) and a motion
for appointment of appellate counsel.       The motion for a TRO is DENIED
because Hongo cannot establish a substantial likelihood that he will succeed
on the merits. See Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). His
motion for appointment of counsel is DENIED because he has not shown excep-
tional circumstances. See Cooper v. Sheriff, Lubbock Cty., Tex., 929 F.2d 1078,
1084 (5th Cir. 1991).

      Hongo contends that the district court erred by ruling on summary judg-
ment without first requiring the defendants to produce certain discovery evi-
dence that Hongo alleges would have supported his claims. As correctly noted
by the defendants, Hongo did not seek the proper recourse by requesting a
continuance under Federal Rule of Civil Procedure 56(d) to obtain discovery to
defend against their summary judgment motion. See Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). But even if the various discovery-
related motions filed by Hongo were liberally construed as seeking Rule 56(d)
relief, he did not make the necessary showing that further discovery was neces-
sary to defeat summary judgment. See King v. Dogan, 31 F.3d 344, 346 (5th
Cir. 1994). The district court did not abuse its discretion by denying further
discovery before ruling on summary judgment. See id.

      For his second point, Hongo contends that the district court erred by
denying his motion seeking an order under Federal Rule of Civil Procedure
35(a) for a physical examination. Because Hongo failed to show good cause for
that order, the district court did not abuse its discretion by denying the motion.
See Grogan v. Kumar, 873 F.3d 273, 281 (5th Cir. 2017).

      Regarding the summary judgment on excessive force and refusal to pro-
vide proper medical treatment, we review de novo review by applying the same


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                                No. 18-30717

standards as did the district court. See Austin v. Kroger Tex., L.P., 864 F.3d
326, 328 (5th Cir. 2017). “The court shall grant summary judgment if the mov-
ant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The
moving party must demonstrate the absence of a genuine issue of material fact,
but it does not need to negate the elements of the nonmovant’s case. Duffie v.
United States, 600 F.3d 362, 371 (5th Cir. 2010). If the moving party meets
that initial burden, the burden shifts to the nonmovant to set forth specific
evidence to support his claims. Id. All facts and reasonable inferences must
be construed in the light most favorable to the nonmovant, and the court must
not weigh evidence or make credibility calls. Deville v. Marcantel, 567 F.3d
156, 163−64 (5th Cir. 2009). The nonmovant cannot satisfy his burden with
“conclusory allegations,” “unsubstantiated assertions,” or “only a scintilla of
evidence.” Duffie, 600 F.3d at 371 (internal quotation marks and citation
omitted).

      The defendants provided affidavits and photographs establishing that no
excessive force was used against Hongo on August 17, 2015, after certain de-
fendants forcibly stopped Hongo’s attack on another prisoner. The defendants
also provided affidavits and medical records showing that Hongo received med-
ical examinations and treatment following that incident. Because he failed to
provide any competent summary judgment evidence, there was no genuine dis-
pute of material fact regarding either of his claims. Accordingly, the summary
judgment is AFFIRMED. See Duffie, 600 F.3d at 371.




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