IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-41262

SHAWN ERIC MCGEE,

Plaintiff-Appellant,

versus

D. HORTON, Warden Beto I, ET AL,

Defendants,

UNIDENTIFIED HODGES, Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas (6:95-CV-930)

December 29, 1999

Before HIGGINBOTHAM, and SMITH, Circuit Judges, and DUPLANTIER 1, District Judge.

PER CURIAM2:

Shawn Eric McGee, a Texas state inmate, filed a pro se

complaint against various correctional officers, including Captain

Weldon Hodges, seeking damages under

for violations

of plaintiff’s civil rights, including the failure to protect him

from assaults by other inmates. Pursuant to

(c)(1),

1 District Judge of the Eastern District of Louisiana, sitting by designation. 2 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the parties consented to the conduct of all proceedings by the

magistrate judge. The magistrate judge dismissed, as frivolous,

all of plaintiff’s claims except the claim alleging that Captain

Hodges demonstrated deliberate indifference for plaintiff’s safety.

McGee appealed the dismissal of those other claims; the dismissal

was affirmed. McGee v. Horton, No. 96-41262 (5th Cir. July 1, 1997).

The magistrate judge granted summary judgment in favor of Captain

Hodges, the sole remaining defendant, and dismissed plaintiff’s

suit. Plaintiff appeals.

Ten days before counsel for defendant filed the motion for

summary judgment, plaintiff notified the clerk of the district

court in writing that his address had changed and provided the

clerk with his new address. Plaintiff alleges that he notified

defendant’s counsel of the change of address; however, the record

contains no evidence of such notice. Defendant’s counsel elected

not to respond to the appeal; hence we assume that he received

notice of the address change.

A motion for summary judgment shall "be served at least 10

days before the time fixed for hearing." Fed.R.Civ.P. 56(c). Rule

5(b) of the Federal Rules of Civil Procedure provides that

"[w]henever under these rules service is required . . . [it] shall

be made by . . . mailing it to the attorney or party at the

attorney’s or party’s last known address[.]"

Defendant served a copy of the motion for summary judgment on

plaintiff at his prior address, not at plaintiff’s last known

address as indicated in the record. It is undisputed that

plaintiff did not receive a copy of the motion for summary judgment prior to the granting of the motion by the magistrate judge.

Because defendant failed to serve the motion for summary

judgment upon plaintiff, he had no opportunity to respond to the

motion, and thus the summary judgment must be set aside. The

judgment granting defendant’s motion for summary judgment is

reversed. The case is remanded to the district court without

prejudice to defendant’s right to reurge his motion for summary

judgment after providing proper notice of the motion to plaintiff.

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