United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 5, 2006
May 2, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-30458
Summary Calendar
RICHARD FISHER,
Plaintiff-Appellant,
versus
CARL CASTERLINE; ET AL,
Defendants
A. COHEN; S. LEMOINE; MR. BRADSHAW; MR. SAPP;
MR. PACE; MR. ILSE,
Defendants-Appellees
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:03-CV-2231
--------------------
Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Richard Fisher, federal prisoner # 09363-007, appeals the
summary judgment dismissal of his Bivens** suit and moves for
appointment of counsel, oral argument, and production of the
*
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this opinion should not be published and is not precedent except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.
**
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 05-30458
-2-
videotape of the alleged constitutional violation. He argues
that the district court improperly resolved disputed, material
factual issues against him in rejecting his excessive force claim
and that the summary judgment ruling was premature because
discovery was not yet complete.
“Summary judgment is proper ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” E.g., Skotak v. Tenneco Resins,
Inc., 953 F.2d 909, 912 (5th Cir. 1992) (quoting FED. R. CIV. P.
56(c)). We hold that the facts material to the determination
whether the complained-of use of force was applied in a good-
faith effort to maintain or restore discipline were not in
dispute and supported the district court’s finding as a matter of
law that the force at issue was not constitutionally excessive.
See Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir. 1998).
We further hold that the district court’s summary judgment
ruling was not premature. Fisher did not move for a continuance
to obtain discovery under FED. R. CIV. P. 56(f), and therefore has
waived any objection on appeal. Access Telecom, Inc. v. MCI
Telecomms. Corp., 197 F.3d 694, 719 (5th Cir. 1999). His motion
to supplement the appellate record with the videotape is denied.
See Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224
(5th Cir. 1981).
No. 05-30458
-3-
Fisher has not assigned error to the district court’s
dismissal of his suit as malicious pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i), and he has therefore waived its review. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The
district court’s dismissal counts as a strike for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Fisher is cautioned that once he accumulates three
strikes, he may not proceed in forma pauperis in any civil action
or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
AFFIRMED; MOTIONS FOR APPOINTMENT OF COUNSEL, ORAL ARGUMENT,
AND PRODUCTION OF VIDEOTAPE DENIED; SANCTION WARNING ISSUED.