United States District Court, S.D. Mississippi, Western Division
REPORT AND RECOMMENDATION
Michael T. Parker United States Magistrate Judge
MATTER is before the Court on Defendant's Motion for
Summary Judgment  and Motion to Strike . Having
considered the Motions, the record, and the applicable law,
the undersigned recommends that the Motion to Strike  be
denied, the Motion for Summary Judgment  be granted, and
this action be dismissed with prejudice.
10, 2017, Plaintiff Andre Luckett, proceeding pro se
and in forma pauperis, filed this civil action
pursuant to 42 U.S.C. § 1983. The allegations in
Plaintiff's complaint occurred while he was incarcerated
as a post-conviction inmate at the Jefferson-Franklin
Correctional Facility. In his complaint and as clarified in
his testimony at the Spears hearing, Plaintiff alleges
that Defendant violated his constitutional rights by failing
to provide him adequate protection from harm.
to Plaintiff, on May 5, 2017, at approximately 3:15 p.m.,
three inmates approached him and one of the inmates asked
Plaintiff if he had stolen the inmate's soap. After
Plaintiff denied stealing the soap, the inmate attempted to
punch Plaintiff. At that point, the three inmates allegedly
attacked Plaintiff. The inmates kicked and
“stomped” Plaintiff while he was on the floor.
According to Plaintiff, he did not expect the confrontation
or attack. Plaintiff alleges that he did not steal any soap
and had no problems with the three inmates prior to the
to Plaintiff, officers responded to the attack after
approximately five minutes. The guards took Plaintiff to the
medical unit for evaluation and then to Jefferson County
Hospital for treatment. Plaintiff allegedly suffered a cut
above his left eye, which required stitches.
alleges that no officer was located in the guard tower or in
his zone at the time of the attack. After the attack,
Defendant Warden Kahoe allegedly told Plaintiff that he would
review the video footage of the attack, but Plaintiff did not
communicate with Defendant after that encounter. Plaintiff
claims that Defendant should have made sure officers were in
the tower or in the zone and that his failure to do so gives
rise to a claims for failure to protect him from harm.
15, 2018, Defendant filed his Motion for Summary Judgment
. Thereafter, Plaintiff filed a Response , Defendant
filed a Rebuttal , and Plaintiff filed a Surrebuttal
FOR SUMMARY JUDGMENT
motion for summary judgment will be granted only when
“the record indicates that there is ‘no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.'”
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d
285, 288 (5th Cir. 2004) (citing Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The Court must view “the evidence in the light most
favorable to the nonmoving party.” Id. The
nonmoving party, however, “cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of
evidence.'” Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)). In the absence of proof, the Court does not
“assume that the nonmoving party could or would prove
the necessary facts.” Little, 37 F.3d at 1075
asserts that Defendant failed to protect him from harm at the
hands of his fellow inmates. Under the Eighth Amendment,
prison officials have a duty to protect inmates from violence
by fellow inmates. Longoria v. Texas, 473 F.3d 586,
592 (5th Cir. 2006) (citing Farmer v. Brennan, 511
U.S. 825, 832-33 (1994)). However, every injury suffered by
one prisoner at the hands of another does not amount to a
constitutional violation by prison officials.
Farmer, 511 U.S. at 834. To prevail on a failure to
protect claim, Plaintiff must show that “he was
incarcerated under conditions posing a substantial risk of
serious harm and that prison officials were deliberately
indifferent to his need for protection.” Jones v.
Greninger, 188 F.3d 322, 326 (5th Cir. 1999).
indifference consists of the official being aware of both the
“facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.” Farmer, 511 U.S. at 837.
Deliberate indifference “‘is an extremely high
standard to meet.'” Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006) (quoting Domino v.
Texas Dep't of Crim. Justice, 239 F.3d 752, 756 (5th
Cir. 2001)). Negligent failure to protect an inmate does not
rise to the level of a constitutional violation. Oliver
v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). The test
for establishing deliberate indifference is “one of
subjective recklessness as used in the criminal law.”
Farmer, 511 U.S. at 837.
Motion , Defendant argues that he is entitled to summary
judgment because he was not personally involved in the
alleged assault and because he was not aware of a threat to
Plaintiff. Indeed, Plaintiff failed to present, and the
record does not contain, evidence that Defendant was involved
in the assault or knew the three inmates posed an imminent
threat to Plaintiff and ignored that threat. Plaintiff did
not make Defendant aware of any ...