IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-41262
SHAWN ERIC MCGEE,
Plaintiff-Appellant,
versus
D. HORTON, Warden Beto I, ET AL,
Defendants,
UNIDENTIFIED HODGES,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(6:95-CV-930)
December 29, 1999
Before HIGGINBOTHAM, and SMITH, Circuit Judges, and DUPLANTIER 1,
District Judge.
PER CURIAM2:
Shawn Eric McGee, a Texas state inmate, filed a pro se
complaint against various correctional officers, including Captain
Weldon Hodges, seeking damages under 42 U.S.C. §1983 for violations
of plaintiff’s civil rights, including the failure to protect him
from assaults by other inmates. Pursuant to 28 U.S.C. §636(c)(1),
1
District Judge of the Eastern District of Louisiana,
sitting by designation.
2
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this opinion should not be published and is not precedent except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.
the parties consented to the conduct of all proceedings by the
magistrate judge. The magistrate judge dismissed, as frivolous,
all of plaintiff’s claims except the claim alleging that Captain
Hodges demonstrated deliberate indifference for plaintiff’s safety.
McGee appealed the dismissal of those other claims; the dismissal
was affirmed. McGee v. Horton, No. 96-41262 (5th Cir. July 1, 1997).
The magistrate judge granted summary judgment in favor of Captain
Hodges, the sole remaining defendant, and dismissed plaintiff’s
suit. Plaintiff appeals.
Ten days before counsel for defendant filed the motion for
summary judgment, plaintiff notified the clerk of the district
court in writing that his address had changed and provided the
clerk with his new address. Plaintiff alleges that he notified
defendant’s counsel of the change of address; however, the record
contains no evidence of such notice. Defendant’s counsel elected
not to respond to the appeal; hence we assume that he received
notice of the address change.
A motion for summary judgment shall "be served at least 10
days before the time fixed for hearing." Fed.R.Civ.P. 56(c). Rule
5(b) of the Federal Rules of Civil Procedure provides that
"[w]henever under these rules service is required . . . [it] shall
be made by . . . mailing it to the attorney or party at the
attorney’s or party’s last known address[.]"
Defendant served a copy of the motion for summary judgment on
plaintiff at his prior address, not at plaintiff’s last known
address as indicated in the record. It is undisputed that
plaintiff did not receive a copy of the motion for summary judgment
prior to the granting of the motion by the magistrate judge.
Because defendant failed to serve the motion for summary
judgment upon plaintiff, he had no opportunity to respond to the
motion, and thus the summary judgment must be set aside. The
judgment granting defendant’s motion for summary judgment is
reversed. The case is remanded to the district court without
prejudice to defendant’s right to reurge his motion for summary
judgment after providing proper notice of the motion to plaintiff.
3