The opinion
Case: 19-50650 Document: 00515726378 Page: 1 Date Filed: 01/29/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
No. 19-50650 Lyle W. Cayce
Summary Calendar Clerk
Esau Poree,
Plaintiff—Appellant,
versus
Warden Chimdi A. Akwitti; Sergeant Phillip A.
Rainwater; Leslie L. Harman, Chief Classification,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CV-223
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Esau Poree, Texas prisoner # 2083174, proceeding pro se and in forma
pauperis, appeals the district court’s grant of summary judgment in favor of
the defendants and dismissal of his 42 U.S.C. § 1983 complaint. Poree
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-50650
alleged that the defendants failed to protect him and sought compensatory
and punitive damages for the injuries he suffered during an assault by a fellow
inmate while housed at the Alfred D. Hughes Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division. The assault, during
which another inmate struck Poree with a coffee cup, resulted in serious
damage to Poree’s left eye, including loss of vision.
There is no allegation that the defendants assaulted Poree or were
deliberately indifferent to Poree’s indisputably serious eye injury. Rather,
Poree’s claim rests entirely on whether the defendants were deliberately
indifferent to his requests for protection and safekeeping. 1 The crux of his
argument is that the defendants knew that he had received threats while
housed in building 8, K-Pod (8 K-Pod) prior to the assault but failed to move
him from 8 K-Pod, thereby placing him at substantial risk of harm.
Poree does not address the district court’s determination regarding
Eleventh Amendment immunity or raise any argument that could be
construed as raising a challenge to that determination. Further, aside from
conclusory references, he also does not discuss his equal protection or
retaliation claims. Accordingly, those issues are deemed abandoned. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
As to whether the defendants were entitled to qualified immunity on
the Eighth Amendment claim of deliberate indifference to Poree’s safety, we
find no error with the district court’s determination that summary judgment
was proper. See Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020), cert.
denied, 2021 WL 78130 (U.S. Jan. 11, 2021) (No. 20-498). Nothing in the
1
“Safekeeping is a housing status that separates vulnerable individuals from more
aggressive offenders.” Johnson v. Johnson, 385 F.3d 503, 512 (5th Cir. 2004).
2
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No. 19-50650
record reflects that the assailant had threatened Poree in the past; moreover,
Poree presented no competent summary judgment evidence, and he points
to no evidence in his brief, showing that any defendant knew that the assailant
presented a threat to him, much less a substantial risk to his safety. See Torres
v. Livingston, 972 F.3d 660, 663 (5th Cir. 2020). While Poree asserts that the
defendants knew that he faced a substantial risk of serious harm if he
remained in building 8 after an earlier incident during which several threats
from unknown inmates were made, that incident was not disregarded by
prison officials but was duly investigated. Moreover, Poree has not shown
that the incident presented a risk of serious harm that “was so obvious that
the [defendants] must have known about it.” Johnson, 385 F.3d at 524. Even
if the facts could be sufficient to show that a prison official may have been
negligent for failing to move Poree out of building 8 after the incident,
negligence, even gross negligence, is not enough to state an Eighth
Amendment claim. See Torres, 972 F.3d at 663.
Finally, insofar as Poree’s argument implicates the decision to deny
him placement in safekeeping while at the Hughes Unit, “a prison inmate
does not have a protectable liberty or property interest in his custodial
classification and an inmate’s disagreement with a classification is
insufficient to establish a constitutional violation.” Neals v. Norwood, 59 F.3d
530, 533 (5th Cir. 1995).
Accordingly, the district court’s judgment is AFFIRMED.
3