United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2007
Charles R. Fulbruge III
Clerk
No. 05-11206
Summary Calendar
DANIEL MONTES, JR.
Plaintiff-Appellant,
versus
JEFFERY P. RANSOM, # 6952; DEMARCUS F. BLACK, # 7574; WILLIE FAYE
WASHINGTON; DAVID BONNER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-1027
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Daniel Montes Jr. appeals from the district court’s grant of
motions for summary judgment in favor of police officers and
prison officials and dismissal of his federal and state claims.
Montes argues that defendants Jeffery P. Ransom and Demarcus
Black, who were arresting officers, used excessive force when
they handcuffed him too tightly. He argues that defendants
Willie Faye Washington and David Bonner, officials at the jail
while he was held in custody prior to his release, failed to
*
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this opinion should not be published and is not precedent except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.
No. 05-11206
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loosen his handcuffs. He argues, inter alia, that the district
court misapplied the law of this circuit when it dismissed his
claims.
Handcuffing too tightly, without more, does not amount to
excessive force. See Tarver v. City of Edna, 410 F.3d 745, 752
(5th Cir. 2005); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th
Cir. 2001). Moreover, admissible medical evidence establishing
some injury is required to satisfy the injury requirement of an
excessive force claim based on the application of handcuffs. See
Tarver 410 F.3d at 752 (citing, approvingly, Crumley v. City of
St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003)); Clark v.
America’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir.
1997). As the district court observed, photographs that Montes
submitted do not reveal anything other than minor red marks and
perhaps a small amount of swelling. Such minor injuries are
inherently transient, are only de minimis, and are not
actionable. See Tarver, 410 F.3d at 751-52; Glenn, 242 F.3d at
314. Regarding Montes’s complaints of permanent injury, Montes’s
argument fails to establish error in the district court’s
evidentiary ruling, which is in accord with this circuit’s
precedent establishing that unauthenticated documents are not
competent summary judgment evidence. See King v. Dogan, 31 F.3d
344, 346 (5th Cir. 1994); Haynes v. Pennzoil Co., 141 F.3d 1163
(5th Cir. 1998). The district court therefore did not err in
dismissing Montes’s claims of excessive force.
No. 05-11206
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To the extent that Montes is asserting that Washington and
Bonner violated his constitutional rights by delaying or denying
medical care, Montes’s failure to establish “serious medical
needs” that were overlooked or denied, or “substantial harm,”
defeats his claim that Washington and Bonner’s actions
constituted an Eighth Amendment violation. See Easter v. Powell,
457 F.3d 459, 462-65 (5th Cir. 2006). To the extent that Montes
is asserting that Washington and Bonner are liable in a
supervisory capacity, a supervisor cannot be liable under § 1983,
where, as here, there is no underlying constitutional violation.
See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425-26 (5th Cir.
2006).
Montes also argues that the fact that he was handcuffed in
an inappropriate manner and forced to remain in handcuffs while
he was in custody violated equal protection. The district court
concluded that Montes failed to adduce any evidence that tended
to show that the defendants treated him any differently than
others who were similarly situated or that the defendants
purposefully discriminated against him. Despite the district
court’s ruling, Montes’s argument before this court consists only
of conclusional assertions that the officials were black, he is
Hispanic, and an unnamed black judge with whom Montes has
previously had difficulty was involved in his arrest. Blue
brief, 22-23. Such conclusional allegations are insufficient to
No. 05-11206
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defeat a summary judgment motion. See Hugh Symons Group v.
Motorola, Inc., 292 F.3d 466, 468 (5th Cir. 2002).
Montes also contends that the district court should have
analyzed his claim of conspiracy to violate his civil and equal
protection rights under the First Amendment and Due Process
clause. Unlike in his argument before this court, Montes’s
allegations of a conspiracy resulting from the law enforcement
officials’s reaction to his threat of lawsuit were tied to causes
of action under 42 U.S.C. § 1985(2) and (3). Therefore, the
district court analyzed Montes’s claims under § 1985(2) and (3).
Montes fails to argue that the district court erred with respect
to his claims of conspiracy under § 1985(2) and § 1985(3). He
therefore has abandoned these issues. See Grant v. Cuellar, 59
F.3d 523, 524 (5th Cir. 1995); Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Regarding
Montes’s argument that the district court erred by failing to
consider whether the officers’s response to his lawsuit threat
violated his rights under the First Amendment, Due Process
Clause, Fourth, Eighth, and Fourteenth Amendments, Montes did not
present this argument to the district court. This court will not
consider arguments that were not presented to the district court.
See Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir.
1994) (en banc).
Montes argues that the district court erred when it
dismissed his state law claims. As the district court did not
No. 05-11206
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err in its dismissal of Montes’s federal claims, the district
court did not abuse its discretion under 28 U.S.C. § 1367(c)(3)
when it dismissed Montes’s state law claims. See Priester v.
Lowndes County, 354 F.3d 414, 425 (5th Cir. 2004).
Montes also argues that the district court abused its
discretion by failing to allow him to amend his complaint to add
a defendant. Montes fails to explain why the district court’s
denial of his motion to file an amended complaint amounted to an
abuse of discretion when Montes sought to file an “unnamed
defendant” after he had previously been given leave on one prior
occasion to file an amended complaint, after he had filed an
amended complaint, and after responsive pleadings were filed. He
also sought to file the amended complaint after the deadline
established in the district court’s scheduling order for filing
motions requesting joinder of additional parties or amendments of
pleadings. Moreover, Montes did not subsequently identify in the
district court the party who he sought to add as a defendant.
Even if the district court abused its discretion in denying
Montes’s motion for leave to amend his pleadings, a remand to the
district court to consider the merits of Montes’s claim against
the unnamed defendant would be a waste of judicial resources.
See Halbert v. City of Sherman, Tex., 33 F.3d 526, 530 (5th Cir.
1994).
Finally, Montes raises a recusal argument for the first time
on appeal. As Montes’s assertions do not establish good cause
No. 05-11206
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for why he did not file an affidavit requesting recusal of the
trial judge, nor do his assertions show exceptional circumstances
why this court should consider these issues for the first time on
appeal, this court should decline to consider the argument. See
Clay v. Allen, 242 F.3d 679, 681 (5th Cir. 2001).
For the foregoing reasons the judgment of the district court
is AFFIRMED.