Carson v. Perry

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_______________

No. 95-40551

(Summary Calendar) _______________

ARTHUR W CARSON,

Plaintiff-Appellant,

versus

OLGA A PERRY; TDC INMATE TRUST FUND,

Defendants-Appellees.

_______________________________________________

Appeal from the United States District Court For the Eastern District of Texas 6:92-CV-506 _______________________________________________ June 6, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Arthur W. Carson appeals the district court's grant of the

defendants' motion for summary judgment in Carson's 42 U.S.C.

§ 1983 action regarding the withdrawal of funds from his prison

trust fund account.1 We affirm the judgment of the district court.

* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 1 Carson alleged in his suit that his constitutional rights were violated based on errors that occurred involving his prison trust fund account. The district court granted the defendants' motion for summary judgment because the court found that Carson did not experience any monetary loss as a result of We review a district court's grant of summary judgment de novo

applying the same standard as the district court. Resolution Trust

Corp. v. Camp, 965 F.2d 25, 28 (5th Cir. 1992). Summary judgment

is appropriate if there is no dispute as to a material fact, and

the moving party is entitled to judgment as a matter of law. FED.

R. CIV. P. 56(c). When a party moves for summary judgment, the

nonmoving party must either submit facts to establish that the

moving party's allegations are questionable, or demonstrate that

the allegations are not properly supported. Camp, 965 F.2d at 29.

Carson pursues the later course by arguing that the affidavit

which accompanied the defendants' motion was insufficient summary

judgment evidence. Specifically, Carson contends that the

affidavit contained hearsay, was prepared in anticipation of

litigation, and was not based on the affiant's personal knowledge.

FED. R. CIV. P. 56(e) provides that "affidavits shall be made on

personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein."

We have held that an affidavit can adequately support a motion for

summary judgment when the affiant's personal knowledge is based on

a review of her employer's business records and the affiant's

position with the employer renders her competent to testify on the

particular issue which the affidavit concerns. See F.D.I.C. v.

these errors.

-2- Selaiden Builders, Inc., 973 F.2d 1249, 1254-55 n.12 (5th Cir.

1992) (lawsuit involving promissory notes), cert. denied, 507 U.S.

1051, 113 S. Ct. 1944, 123 L. Ed. 2d 650 (1993); Camp, 965 F.2d at

29 (same). We will be particularly reluctant to reverse a summary

judgment based on such an affidavit when there is no reason for the

court to doubt the veracity of the affiant's testimony. See Camp,

965 F.2d at 29 (stating that the court "would not hesitate to

reverse summary judgment had Appellants pointed to evidence in the

record to the effect that they had a legitimate fear" that the

affiant's testimony concerning a promissory note was untrue). We

see no reason not to apply this pragmatic approach to this case.

The defendants' motion for summary judgment was supported by

an affidavit from John Michael Turner. Turner testifies in his

affidavit that as the Assistant Director for Local Funds at the

Texas Department of Criminal Justice, Institutional Division

("TDCJ-ID"), he is charged with the supervision of the Education

and Recreation Accounting Department and Inmate Trust Fund of TDCJ-

ID. Turner further states that he is the custodian of the inmate

trust fund records, which are maintained in the regular course of

business on each inmate incarcerated in the TDCJ-ID. Based on his

review of Carson's inmate trust fund records for the disputed time

period, Turner then details the series of transactions that

occurred involving Carson's account. Turner explains in the

affidavit that although the TDCJ-ID's accounting system is

-3- confusing and errors did occur with Carson's account, the errors

were corrected and Carson did not experience any monetary loss.

Given Turner's position as the custodian of the inmate trust

fund records at TDCJ-ID and his carefully detailed account of the

transactions involving Carson's account, we find that Turner's

affidavit was adequate support for the defendants' motion for

summary judgment. Furthermore, we note that there is no reason to

doubt the accuracy of Turner's affidavit because Carson's trust

fund account records were on file with the court and were

considered by the district court when it ruled on the defendants'

motion for summary judgment.2

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

2 Carson also contends that the district court erred by denying his motion for a continuance to obtain discovery to oppose the defendants' summary judgment motion. Carson argues that he needed documents that were introduced at an earlier hearing to demonstrate that the defendants' allegations in the motion for summary judgment were false. We have reviewed the record and conclude that the district court acted within its sound discretion in denying Carson's motion. See Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930 (5th Cir. 1995) (stating standard as abuse of discretion).

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