Cook v. Faulkner

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2000
• Docket: 99-60621
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 99-60621

(Summary Calendar) _________________

TROY E. COOK,

Plaintiff-Appellant,

versus

SONNY FAULKNER, Etc.; ET AL.,

Defendants,

SONNY FAULKNER, Sheriff of Union County, Mississippi,

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Mississippi USDC No. 3:94-CV-5-S-A

April 28, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Troy E. Cook, Mississippi prisoner # 033020, filed a 42 U.S.C. § 1983 complaint against

Union County Sheriff Sonny Faulkner and Police Chief David Grisham, alleging that they had violated

his constitutional rights by housing him in the Union County Jail with inmates who had tuberculosis

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. (“TB”) and from whom he contracted the disease. He now appeals pro se from the district court’s

grant of summary judgment in favor of appellee Sonny Faulkner.1 For the reasons set forth below,

we affirm the judgment of the district court.

On appeal, Cook first argues that the district court erred in granting summary judgment in

light of his court-appointed counsel’s failure to respond to Faulkner’s summary judgment motion.

We review the grant of a motion for summary judgment de novo, applying the same standard utilized

by the district court. See Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000).

Cook argues that he was denied effective assistance of counsel, but he fails to address the

district court’s grant of summary judgment on the merits. A civil litigant proceeding under § 1983

has no constitutional or absolute constitutional right to counsel. See Ulmer v. Chancellor, 692 F.2d

209, 212-13 (5th Cir. 1982). Consequently, there can be no legally cognizable constitutional claim

of ineffective assistance of counsel in such a proceeding. By failing to challenge the grant of summary

judgement on the merits in his initial appellate brief, Cook has waived the issue. See Hidden Oaks

Ltd. v. City of Austin, 138 F.3d 1036, 1045 (5th Cir. 1998). Standing alone, Cook’s unsubstantiated

assertions that he was exposed to tuberculosis while housed in the Union City jail are insufficient to

satisfy his summary judgment burden. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (“This [summary judgment] burden is not satisfied with ‘some metaphysical doubt as to the

material facts,” by ‘conclusory allegations,” by ‘unsubstantiated assertions,’ or by only a ‘scintilla’

of evidence. . . . We do not . . . in the absence of any proof, assume that the nonmoving party could

or would prove the necessary facts.”) (internal citations omitted).

Cook further contends that the district court abused its discretion by denying his request for

new counsel submitted after the magistrate judge issued a report recommending that summary

judgment be granted (and thus when the district court’s disposition of the case was at hand). Cook

has failed to demonstrate that the district court abused its discretion in denying his request for the

1 Cook agreed to dismiss his claims against Grisham with prejudice pursuant to Fed. R. Civ. P. 41.

-2- appointment of counsel at this juncture in the case. See Jackson v. Cain, 864 F.2d 1235, 1242 (5th

Cir. 1989). Accordingly, the judgment of the district court is AFFIRMED.

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