*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opinion should not be published and is not precedent except under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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-10355

Summary Calendar

 

JIMMY RAY BRIGHAM, SR.,

Plaintiff-Appellee,

versus

OFFICER RABB, ET AL.,

Defendants,

OFFICER RABB; OFFICER SWONSON;

OFFICER MURPHY,

Defendants-Appellants.

 

Appeal from the United States District Court

for the Northern District of Texas

(3:96-CV-2212-BC)

 

December 23, 1998

Before KING, GARWOOD and SMITH, Circuit Judges.*

PER CURIAM:

Officers Romney Rabb, Joseph C. Swonson, and Thomas Murphy

(officers) have filed an interlocutory appeal of the order of the

magistrate judge (by whom the parties consented to have the case
2

decided) denying their motion for summary judgment based upon

qualified immunity. To the extent that the officers argue that the

record contains insufficient evidence to overcome the evidence that

they presented or to create any genuine issue of material fact,

this Court lacks jurisdiction. A summary judgment denial based

upon there being sufficient evidence to create a genuine issue of

material fact is not subject to immediate appeal. Hare v. City of

Corinth, Miss., 74 F.3d 633, 638 (5th Cir. 1996) (citing Johnson v.

Jones, 115 S.Ct. 2151, 2156 (1995)).

To the extent that the officers argue that Brigham’s failure

to present or discuss any evidence in his response to their summary

judgment motion requires, as a matter of law, that summary judgment

be granted in their favor, their argument lacks merit. It appears

that the magistrate judge, in determining there were genuine issues

of material fact, likely relied on other evidence in the record,

most notably Brigham’s responses to the magistrate judge’s

questionnaire, as raising a genuine issue of material fact

regarding whether the officers engaged in the conduct forming the

basis of Brigham’s complaint. The answers to the magistrate

judge’s questions are verified, and verified pleadings may be

considered as proper summary judgment evidence if they meet the

other standards set forth in Fed. R. Civ. P. 56(e) for affidavit

evidence. See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.,

831 F.2d 77, 80 (5th Cir. 1987). We find that Brigham’s answers to

the magistrate judge’s questions, when viewed in light of the

record as a whole, meet the Rule 56(e) criteria. See id.
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Brigham’s failure to call the magistrate judge’s attention to

these materials in his response to the summary judgment motion did

not preclude their consideration by the magistrate judge in denying

the motion for summary judgment. A district court has no

affirmative duty to search the record for competent summary

judgment evidence supporting a party’s opposition to a motion for

summary judgment. See Ragas v. Tennessee Gas Pipeline Co., 136

F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins, Inc., 953

F.2d 909, 915-16 & n.8 (5th Cir. 1992). However, the district

court is not prohibited from considering such evidence, if it

exists in the record, by the nonmoving party’s failure to call the

court’s attention to it. Skotak, 953 F.2d at 16 & n.7. In the

instant case, the magistrate judge was familiar with the

questionnaire, which she had drafted, and with Brigham’s response

to it. Reversible error in the denial of summary judgment is not

demonstrated by the trial court’s entire reliance on otherwise

proper evidentiary material then of record merely because the

nonmovant has not called that material to the trial court’s

attention in responding to the motion for summary judgment.

Assuming that this Court would have jurisdiction over the

officers’ argument that summary judgment should have been entered

based upon 42 U.S.C. § 1997e(e), their argument fails. The

officers did not make this argument before the district court, and

review is for plain error. See Highlands Ins. Co. v. National

Union Fire Ins. Co. of Pittsburgh, 27 F.3d 1027, 1031-32 (5th Cir.

1994). Failure to consider section 1997e(e) on this interlocutory
4

appeal will not bar defendants from hereafter relying on it in the

district court or otherwise work any injustice.

AFFIRMED