UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50020
Summary Calendar
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GARY W. BAILEY,
Plaintiff-Appellant,
versus
DON HARRIS, Officer; RODRIGUEZ, Officer,
Individually and in Their Capacity as Law Enforcement
Officers of the Town of Anthony, Texas;
EL PASO COUNTY SHERIFF’S DEPT.; THE TOWN OF
ANTHONY; THE LIFE AMBULANCE COMPANY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
EP-96-CV-320
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July 1, 1997
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM1:
Gary W. Bailey appeals the summary judgment in favor of the
Town of Anthony, Texas, Anthony police Officers Harris and
Rodriguez, and the Life Ambulance Company; the judgment dismissed
his claims for defamation, violations of the Americans with
Disabilities Act, and violations of his civil rights. Bailey
1
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this opinion should not be published and is not precedent except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.
contends that the district court erred by granting summary judgment
prior to the expiration of the deadline for his response, by ruling
that the issue of probable cause is a question of law, by holding
that the allegedly defamatory statements made by some of the
defendants were not communicated to a third person, by ignoring his
claims for personal injury and medical expenses resulting from the
use of excessive force, and by dismissing the County for lack of
service of process. (Contrary to the Federal Rules of Appellate
Procedure, Bailey’s brief does not contain any cites to the record.
On that basis alone, the appeal could -- and should -- be
dismissed. See FED. R. APP. P. 28(a)(4),(6); 5th Cir. R. 28.2.3,
42.3.2; United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).)
Although the motion was filed and served on 14 November 1996,
Bailey’s attorney did not receive it until 25 November.
Accordingly, the last day for filing a response to the summary
judgment motion was 6 December 1996. See Local Court Rules, U.S.
Dist. Ct. W.D. Tex. CV-7(f) (1996) (requiring response to the filed
and served 11 “calendar days from the date of receipt”). Bailey
did not file a response, and judgment was signed and entered on 5
December. Bailey’s motion for an extension was not filed until 16
December. Even assuming that the entry of summary judgment was
premature, any error was harmless because Bailey never filed a
response in opposition to the defendants’ summary judgment motion.
See Resolution Trust Co. v. Leslie (Matter of Liberty Trust Co.),
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903 F.2d 1053, 1055 (5th Cir. 1990) (where non-movant did not file
response to summary judgment motion, order granting summary
judgment was not premature; even if it was, it was not error; and,
even if it was error, it was harmless). Instead, subsequent to the
deadline for his response, Bailey filed the motion for an extension
of time.
Although Bailey’s failure to oppose the summary judgment, in
itself, was not a sufficient basis for granting summary judgment,
the appellees established their entitlement to summary judgment by
showing the absence of a genuine issue of material fact and that
they were entitled to judgment as a matter of law. See Resolution
Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995); FED.
R. CIV. P. 56. Accordingly, as hereinafter discussed, the claims
were properly dismissed by summary judgment.
Based on the affidavits submitted by the appellees in support
of their summary judgment motion, the district court did not err by
holding that a reasonable peace officer could have concluded that
Bailey had committed the offense of driving while intoxicated. See
Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994) (probable
cause to arrest exists if police officer has knowledge that would
warrant a prudent person’s belief that the arrestee had committed
a crime).
In addition, the court did not err by dismissing Bailey’s
defamation claim. Even assuming that the allegedly defamatory
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statements were communicated to a third person, the summary
judgment record does not reflect the existence of a material fact
issue as to whether the statements were defamatory.
Next, the district court did not err by failing to address
Bailey’s claims for personal injury and medical expenses, because
Bailey did not allege that those injuries and expenses were the
result of the use of excessive force by the appellees; instead, he
alleged that excessive force was used by El Paso County deputies.
Bailey’s unsupported assertion that the appellees are liable for
the deputies’ alleged use of excessive force under a “continuing
tort” theory is totally without merit.
Finally, the district court properly dismissed El Paso County;
the record does not support Bailey’s assertion that a waiver of
service, signed by the Sheriff, was filed in the record.
AFFIRMED
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