Case: 08-41182 Document: 00511159474 Page: 1 Date Filed: 06/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 30, 2010
No. 08-41182
Summary Calendar Lyle W. Cayce
Clerk
EMERICO GARCIA; GLORIA GARCIA
Plaintiffs-Appellants
v.
A CONTRERAS, Officer (#172); MENDOZA, Detective; LONGORIA, Officer;
GARCIA, Officer (#077); RUIZ, Officer (#710); GARCIA, Officer (#708);
KIRKPATRICK, Officer (#712); MCGEE, Officer (#711); GONZALEZ, Officer
(#071); CANTU, Officer; CISNEROS, Officer; KLEBERG COUNTY SHERIFF
DEPARTMENT; THE CITY OF KINGSVILLE; KLEBERG COUNTY
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CV-359
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, Emerico and Gloria Garcia
appeal the dismissal of their 42 U.S.C. § 1983 complaint. Liberally construing
their brief, the Garcias contend that the district court erred in granting
summary judgment because they: had mailed a motion for an extension of time
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41182
to respond to the summary judgment motion; and, were entitled to the services
of an interpreter. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)) (pro se briefs should be liberally
construed).
In district court, the Garcias contended defendants entered their home
without consent or a warrant, assaulted them, and shocked them with a Tazer
gun. The district court dismissed defendants associated with Kleberg County
based on the Garcias’ failure to effectuate timely service of process. For the
remaining defendants, the district court granted summary judgment, ruling:
none of the individual defendants violated the Garcias’ constitutional rights;
and, the Garcias failed to allege a City of Kingsville policy that resulted in a
violation of their rights. (On appeal, the Garcias do not challenge the rationale
behind the district court’s ruling on summary judgment. They also have failed
to brief any challenge to the district court’s dismissal of some defendants for
failure to serve. Because the Garcias do not raise such challenges on appeal,
these issues are deemed abandoned. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).)
The Garcias’ motion for additional time to respond to the summary-
judgment motion was not filed until the day final judgment was entered.
Therefore, the district court considered the motion a postjudgment motion for
reconsideration and denied it. Because the Garcias’ motion failed to “‘specifically
explain . . . how a continuance would enable’” them to present evidence of a
genuine issue of material fact, they were not entitled to a continuance. See
Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 719 (5th Cir. 1999)
(quoting Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930
(5th Cir.1995)). Likewise, the district court did not abuse its discretion in
denying the postjudgment motion. See Martinez v. Johnson, 104 F.3d 769, 771
(5th Cir. 1997).
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No. 08-41182
The Garcias also appear to contend that they were entitled to the services
of an interpreter. The record belies any assertion that the Garcias did not
understand English or that a lack of understanding of the English language
precluded them from participating in the legal proceedings. To the extent they
contend their ignorance of the law and court procedures entitled them to the
assistance of counsel, they have failed to show that exceptional circumstances
warranted such an appointment in a civil proceeding. Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982).
AFFIRMED.
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