Winslow v. Smith

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-20406 Summary Calendar

JOHN W. WINSLOW,

Plaintiff-Appellant,

versus

CHARLES SMITH; ET AL.,

Defendants,

CHARLES SMITH; LINDA PATTERSON; S. O. WOODS; M. COUNTZ, Warden; R. BELANGER, Asst. Warden; R. JONES, Asst. Warden; L. HEUSZEL, Asst. Warden; G. PIERSON, Asst. Warden; H. TERRY, Asst. Warden,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-94-CV-1777 - - - - - - - - - - October 31, 1997 Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

John W. Winslow, Texas prisoner # 442811, appeals from the

district court’s grant of summary judgment as unopposed and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-20406 -2-

dismissing his 42 U.S.C. § 1983 complaint for lack of

prosecution. Winslow argues that the defendants intentionally

used the disciplinary process to prevent him from filing a timely

response to the summary judgment motion.

Even if his allegations are true, Winslow has not shown

prejudice because he was able to respond to the defendants’

summary judgment motion. Lewis v. Casey, 116 S. Ct. 2174, 2180

(1996). Although the district court erred in granting summary

judgment on the basis that Winslow had not responded to the

summary judgment motion, the grant of summary judgment was

appropriate. Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir.

1992) (permitting affirmance of judgment on any basis supported

by the record). The defendants met their initial burden of

showing that they were entitled to judgment, and Winslow’s

conclusional allegations and unsubstantiated assertions failed to

carry his burden of showing that they were not entitled to

judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994) (en banc).

AFFIRMED.