The opinion
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10536
Summary Calendar
RAYFIELD J. THIBEAUX
Plaintiff-Appellant,
VERSUS
T.J. MEDART AND MAJOR PRASIFKA
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(2:94-CV-72)
December 4, 1995
Before REYNALDO G. GARZA, JONES, BARKSDALE, Circuit Judges.
PER CURIAM:*
Background
Appellant Thibeaux, an inmate in the Texas Department of
Criminal Justice - Institutional Division (TDCJ-ID), filed a pro se
complaint in forma pauperis pursuant to 42 U.S.C. § 1983 while he
was incarcerated at the Swisher County Detention Center, a unit of
*
Local Rule 47.5 provides: "The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has
determined that this opinion should not be published.
TDCJ-ID.1 Appellant alleged that he was being retaliated against
by other inmates who had discovered that he was an informant.
Appellant claims that in June of 1992 he informed appellees (Warden
Medart and Major Prasifka, employees of TDCJ-ID) that he was a
narcotics informant from the Harris County, Texas area and that he
felt his life was in danger. He requested transfer to another
unit.
Following his complaint to appellees, appellant claims that
someone started to smear urine and sewage on his bed in retaliation
for his status as a drug informant. Appellant also claims that he
was involved in two altercations with other inmates because of his
narcotics status. According to appellant, appellees did nothing to
move him to a new area of the prison unit or to a new unit even
after learning of the specific acts of retaliation.
Appellees were ordered to answer. The defendants answered and
moved for summary judgment. Thibeaux responded and filed a motion
for an immediate injunction. The magistrate judge scheduled a
hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985), and to evaluate the defendants' motion for summary judgment
and Thibeaux's motion for injunctive relief. The parties consented
to proceed before the magistrate.
At the hearing, Thibeaux testified that he met with Warden
Medart shortly after his transfer to Swisher County and told Medart
that he had been an informant and that he was "having problems here
1
Appellant is currently incarcerated at the Stiles Unit of TDCJ-ID, a prison facility located
in Beaumont, Texas.
2
on the unit[.]" According to Thibeaux, Medart told him that a
single man cell was not an option.2 Thibeaux acknowledged,
however, that, in a response to a grievance he filed relating to
his problems, he was informed by Medart that "you failed to present
any evidence to corroborate your allegations. There was no
evidence of harassment o[r] retaliation. There were no signs of
urine found on your sheets or clothing." In response to a second
similar grievance, Medart informed Thibeaux that "you have never
once been able to provide evidence that your allegations have
merit[.]" Thibeaux acknowledged that "nobody can see" the urine
smeared on his bunk.
Thibeaux also testified that he had been in several fights at
the unit. He related that his most recent fight was over money.
He also related that a fight prior to that had occurred after he
turned on the television early one morning. He admitted that he
had been charged with assault with regard to that fight. The
magistrate judge asked Thibeaux for proof that he was being
assaulted because of his alleged status as an informant and
Thibeaux replied that "I have no proof. Well, I, all I can go by
is what's happening to me."
The magistrate judge determined that, assuming that Thibeaux
had stated an Eighth Amendment claim, the defendants did not
display deliberate indifference to Thibeaux's plight. The
magistrate judge further concluded that Thibeaux had failed to
2
Thibeaux also testified that he told Major Prasifka that he had been an informant and
Prasifka replied that "we don't transfer for that[.]"
3
present any evidence to show that the defendants' actions were not
objectively reasonable; thus, the defendants were entitled to
qualified immunity. The magistrate judge granted the defendants'
motion for summary judgment and denied as moot Thibeaux's motion
for an immediate injunction. This appeal followed. For the
reasons stated below, we affirm.
Discussion
A. Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment
is appropriate where the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show 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." Fed.R.Civ.P. 56(c); Duhon v. Mobil Oil Corp., 12
F.3d 55, 57 (5th Cir. 1994). This Court reviews grants of summary
judgment de novo, applying the same standards as those applied by
the district courts. Duhon, 12 F.3d at 57. If this Court
determines that the district court erred in its stated reason for
granting summary judgment, the judgment of the district court can
nonetheless be affirmed provided other adequate grounds for
granting summary judgment appear. Thompson v. Georgia Pacific
Corp., 993 F.2d 1166, 1167-68 (5th Cir. 1993).
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B. Propriety of Summary Judgment
Thibeaux argues that the magistrate judge erred by denying his
motion for injunctive relief and by granting the defendants' motion
for summary judgment.3 Although the defendants moved for summary
judgment, they did not submit any summary judgment evidence other
than their testimony at the evidentiary hearing. This court has
affirmed judgments resting on evidence adduced at a hearing when
the testimony is uncontradicted and the factual basis for the
judgment admits no genuine controversy about material matters. U.S.
v. State of Louisiana, 9 F.3d 1159, 1168 (1993). However, because
the defendants did not produce any evidence in support of their
motion until the day of the hearing, Thibeaux did not have notice
of the factual basis of the defendants' motion. Arguably, the
magistrate court's dismissal under Rule 56(c) was in error.
Nevertheless, while the magistrate judge could not rely on
testimony or prison records to make credibility decisions beyond
the scope of the Spears hearing, Thibeaux did not challenge the
essential facts which rendered his claim without merit. We may
thus affirm the judgment for defendants under 28 U.S.C. § 1915(d).
C. Dismissal of Thibeaux's Claims under 28 U.S.C. § 1915(d).
An in forma pauperis claim that has no arguable basis in law
or fact may be dismissed as frivolous under § 1915(d). Booker v.
Koonce, 2 F.3d 114, 115 (5th Cir. 1993). At the Spears hearing,
3
Thibeaux also avers that he is now housed at TDCJ Stiles Unit and is being denied medical
care. This issue was not before the court below. Since this claim is not purely legal, it is not
reviewable for the first time on appeal. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
5
Thibeaux himself acknowledged facts rendering his claim baseless in
law. Therefore, this case can properly be dismissed as frivolous
as shown infra.
Prison officials have a duty under the Eighth Amendment to
protect inmates from violence at the hands of other prisoners.
Farmer v. Brennan, 114 S.Ct. 1970, 1976 (1994). To constitute an
Eighth Amendment violation, Thibeaux must show that he was
"incarcerated under conditions posing a substantial risk of serious
harm" and that the defendants' state of mind was one of "deliberate
indifference" to his health or safety. Id. The defendants were
deliberately indifferent if they were both "aware of the facts from
which the inference could be drawn that a substantial risk of harm
exists" and they drew the inference. Id. at 1979. If Thibeaux's
allegations do not establish a failure-to-protect claim, his
complaint may be dismissed under § 1915(d). See Neals v. Norwood,
59 F.3d 530, 533 (5th Cir. 1995).
Thibeaux acknowledged that Medart answered his grievances
regarding the urine and harassment. In doing so, he acknowledged
that his claims were being investigated. Further, Thibeaux's own
recount of the fighting incidents establishes that the defendants
could not have reasonably inferred that Thibeaux faced a
substantial risk of harm from other inmates. Thibeaux admitted
that he was charged as the aggressor in one of the fights and
admitted that he was twice disciplined for fighting. On appeal, he
explains that one of the fights occurred after the inmate placed
his back-side on Thibeaux's shoulder. None of these facts suggest
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that Thibeaux was the target of inmate assaults.
In Neals, the plaintiff asserted that the defendants
jeopardized his safety by not moving him to protective custody
after determining that there was insufficient evidence to support
his claim that he needed protection. Id. at 531-32. The magistrate
judge dismissed the complaint as frivolous, noting Neals had
alleged, at most, negligence. Id. at 533. This Court affirmed,
concluding that the magistrate judge had not abused his discretion
by determining that the plaintiff had failed to raise a
constitutional claim. Id. Similarly, the essence of Thibeaux's
complaint is that the defendants erroneously determined that there
was insufficient evidence to support his claims of harassment.
Thibeaux argues that he proved, through a grievance he
submitted to the magistrate judge, that he discussed with Warden
Medart the fact that the inmates had discovered he allegedly was an
informant. He also argues that Medart admitted such on cross-
examination. Thibeaux apparently misunderstands the nature of an
Eighth Amendment violation in this context. Although Medart was
aware of Thibeaux's allegations, his failure to act on them was
based on his reasoning that Thibeaux had failed to substantiate the
allegations. Failure to act under these circumstances does not
amount to deliberate indifference and establishes, at most,
negligence. See id. at 532-33. Negligence will not support a §
1983 claim. Id. at 532.4
4
Thibeaux also suggests that the defendants lied at the evidentiary hearing. However,
because the dismissal of the complaint may be upheld under § 1915(d), the defendants'
testimony is not considered.
7
Because we hold that appellant's claim was frivolous under
§ 1915 (d) and that judgment in favor of the appellees was
appropriate, we do not reach the issue of appellees' qualified
immunity. Similarly, we do not reach the merits of Thibeaux's
request for equitable relief. His arguments regarding the
magistrate judge's denial of equitable relief were mooted by his
transfer from the Swisher County Jail. Cooper v. Sheriff, Lubbock
County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
We AFFIRM the decision of the court below.
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