### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-31206 Summary Calendar

JOHN D. POWELL, Plaintiff-Appellant
v. UNITED STATES OF AMERICA, Defendant-Appellee

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CV-1873

Before JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM: * Plaintiff-Appellant John D. Po w e l l (“Powell”) appeals from the district court’s order of summary judgment in f avor of D ef

e n d ant-Appellee United States of America (“Government”). Powell sued the Government for negligence under the Federal Tort Claims Act, 28 U.S.C. § 1346. We AFFIRM the district court. Pow e l l visited the Veterans Administration Medical Center (“VA”) in Jackson, Mississippi, on March 21 , 2 006. An altercation arose after Powell U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 24 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-31206 Document: 00511520196 Page: 1 Date Filed: 06/24/2011No. 10-31206

refused to remove items from his pockets at the security checkpoint. A security guard struck Powell’s arm and knocked away Powell’s finger, which was pointed at the guard. The squabble ended m o ments later without further incident. Powell sued the Government for negligence for its employee’s actio n s an d all e ged damages base d o n mental anguish and pain, medical expenses, and physical pa i n and suffering. The district court found a complete absence of evidence to suppo r t a finding of damages and granted summary judgment in favor of the Government. We revi e w a s u mmary judgment order de novo, applying the same standard as the district court. United States v. Lawrence , 276 F.3d 193, 195 (5th Cir. 2001). “Summary judgment is proper when no issue of material fact exists and the moving party is e n t i tled to judgment as a matter of law. Questions of fact are reviewed in the light most favorable to the nonmovant and questions of law are reviewed de novo.” Deas v. River West, L.P. , 152 F.3d 471, 475 (5th Cir. 1998). Here, Mississippi tort law applies to Powell’s claim. Se e 2 8 U.S.C. § 1346(b)(1). The Government argued that Powell cannot satisfy his burden of proof regarding damages for his claim of negligence. To overcome the Government’s summary judgment motion, Powell had to show a genuine issue of fact as to the element of damages. See Carpenter v. Nobile , 620 So. 2d 961, 964 (Miss. 1993); Sellars ex rel. Dill v. Walgreen Co. , 971 So. 2d 1278, 1279 (Miss. Ct. App. 2008). Nothing in the record supports Powell’s allegations of injury. In response to the Government’s Motion, Powell did not set out any specific facts to show a genuine issue of fact existed regarding his alleged i njury. In fact, Powell has failed to supply any evidence that shows he suffered an inj u ry f r o m the brief squabble. Accordingly, the dist r i ct court did not err by granting summary judgment in favor of the Government because no genuine issue existed over whether Powell

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could satisfy his burden of proof regarding damages. See Carpenter , 620 So. 2d at 964. We AFFIRM the district court’s summary judgment order in favor of the Government.

3 Case: 10-31206 Document: 00511520196 Page: 3 Date Filed: 06/24/2011