UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-31290
Summary Calendar
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WILLIE C. GEORGE,
Plaintiff-Appellant,
versus
POLICE DEPT. OF HAYNESVILLE; KEITH MILLS;
VINCENT SMITH; WILLIE EVANS; KELVIN KILPATRICK;
MARY LOGON GEORGE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
(96-CV-867)
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February 2, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Willie C. George (#224037) appeals, pro se, an adverse summary
judgment (Defendants Mary Logon George, discussed infra, and Kelvin
Kilpatrick were earlier dismissed as not being state actors.
George does not challenge that ruling. The remaining Defendants,
at issue here, are the police department and three of its
Officers.)
First, he contends that the district court abused its
discretion by permitting Defendants to refile their summary
judgment motion. This issue is without merit.
*
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this opinion should not be published and is not precedent except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.
"A party against whom a claim ... is asserted ... may, at any
time, move with or without supporting affidavits for a summary
judgment...." FED. R. CIV. P. 56(b) (emphasis added). This is in
keeping with the civil procedure rules being “construed and
administered to secure the just, speedy, and inexpensive
determination of every action”. FED. R. CIV. P. 1. For obvious
reasons, we defer ordinarily to the district court in the
management of its own docket. See Union City Barge Line, Inc. v.
Union Carbide Corp., 823 F.2d 129, 135 (5th Cir. 1987).
George contends that the magistrate judge's minute entry
requiring Defendants only to refile a summary judgment motion and
the magistrate judge's recommendation that Defendants’ first
summary judgment motion be granted indicates that the magistrate
judge was unfairly biased. A judicial ruling will support a claim
of bias only if it reveals an opinion based on an extrajudicial
source or demonstrates “such a high degree of favoritism or
antagonism as to make fair judgment impossible”. See Liteky v.
United States, 510 U.S. 540, 555 (1994). Adverse rulings, alone,
do not call into question a judge's impartiality. Id.
Next, George maintains that the defendant Officers entered his
home illegally; and that the district court erred in concluding
that there were no material fact issues regarding this point.
Officer Mills was authorized to enter the house by Mary George.
Police may rely on the voluntary consent of a person holding common
authority over the place to be searched. Illinois v. Rodriguez,
497 U.S. 177, 181 (1990). George asserts that Mary George did not
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give the Officers permission to enter; but, he does not have
personal knowledge of this fact and he has not presented summary
judgment evidence showing that there is a genuine issue whether
Mary George authorized the entry.
Finally, George claims that the district court erred in
granting summary judgment dismissing his excessive-force claim.
The Fourth Amendment governs such claims concerning force used
during an arrest. Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir.
1993). To establish such a claim, a plaintiff must prove by a
preponderance of the evidence: (1) an injury; (2) which resulted
directly and only from the use of force which clearly was excessive
to the need; and (3) that the excessiveness of the force was
objectively unreasonable. Id. The arresting Officers' affidavits
establish that, when Officer Mills entered the residence, he was
attacked by George with an axe; and that Mills struggled with
George until Officers Evans and Smith arrived and assisted Mills in
placing George under arrest. The summary judgment evidence
submitted by George shows only that he suffered an injury during
the arrest; and that he was admitted to the hospital for treatment
of the injury. George has not established that there is a material
fact issue whether the force used was unreasonably excessive.
AFFIRMED
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