UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 95-10244
Summary Calendar
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MELVIN JOSHUA DELANEY
Plaintiff-Appellant,
VERSUS
SHAWN KELM, Lt
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(3:94 CV 1230 AH)
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July 31, 1995
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:1
Appellant Delaney, a Texas state prisoner, sued Deputy Sheriff
Kelm under § 1983 alleging use of excessive force. The parties
agreed to trial by a magistrate judge who granted summary judgment
for Defendant. We affirm.
In the order of reference the district court recited that any
appeal from the judgment rendered by the magistrate judge would lie
in the district court. This was error. It is the agreement of the
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Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
parties which governs. Oliver v. Collins, 904 F.2d 278, 280 (5th
Cir. 1990), 28 U.S.C. § 636(c). The parties did not agree to
appeal to the district court so the general rule applies and appeal
to this court is correct.
Appellant contends that it was error for the court to grant
summary judgment because he did not have an opportunity to respond
to it. Seven months after the suit was filed, Defendant moved for
summary judgment. About three weeks later the judge ruled and
granted the motion. The following day Appellant asked for more
time to respond which request was denied as untimely. Appellant
was entitled to ten days to respond to the motion under Rule 56(c).
He was afforded more than that. We find no abuse of discretion.
The record amply supports the summary judgment. Defendant
submitted affidavits fully documenting the use of force incident
which make it clear that the force was not excessive and was
necessary. Appellant submitted nothing in opposition. He claims
in this Court, by way of a motion to supplement the record, that he
was precluded from submitting information from the infirmary
records because the rules of the Northern District prohibit the
filing into the record of the results of discovery. We deny his
motion, however, because the rules, while they do not permit the
routine filing of discovery matter, specifically provide for the
filing into the record of matter discovered which is relied upon in
opposition to a motion for summary judgment. We note in passing
that the material, even if considered, goes to the severity of the
alleged injury and not to the reasonableness or necessity of the
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force. This record makes clear that the force was applied in a
good faith effort to restore discipline and not maliciously or
sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7
(1992).
AFFIRMED.
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