Ethan Eugene Dorsey, Jr. v. Charles Bailey , 511 F. App'x 949 ( 2013 )

Case: 11-15123 Date Filed: 03/07/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15123
Non-Argument Calendar
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D.C. Docket No. 4:09-cv-00932-CLS-HGD
ETHAN EUGENE DORSEY, JR.
lllllllllllllllllllllllllllllllllllllll l Plaintiff-Appellant,
versus
CHARLES BAILEY,
in his individual capacity
and official capacity,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 7, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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Ethan Dorsey, Jr., an Alabama prisoner, appeals pro se the summary
judgment against his complaint that Charles Bailey, a shift commander at the St.
Clair Correctional Facility, acted with deliberate indifference to a substantial risk
of serious physical harm to Dorsey in violation of the Eighth Amendment. See 42
U.S.C. § 1983. Dorsey sued Bailey to recover for injuries that Dorsey suffered
during a fight with his cellmate, Jerome Terry, whom Dorsey had requested that
Bailey relocate to another prison cell. We affirm.
The district court did not err when it entered summary judgment in favor of
Bailey. Dorsey failed to establish that Bailey was subjectively aware that Dorsey
faced a substantial risk of serious physical harm from Terry. See Carter v.
Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). Bailey’s affidavit established
that, despite an earlier “disagreement” between the prisoners, he did not believe
Terry posed any risk of harm to Dorsey because the inmate-control system officer
who assigned Terry to Dorsey’s cell had determined that the two men were not
“validated enem[ies].” And the inmates had lived peaceably since their
disagreement. Dorsey averred that he and Terry had resided in the same cell block
“for months without incident” and they visited Bailey together to report the
“potential danger” in housing them together. Although Dorsey reported that he did
not “feel comfortable” living with Terry, Dorsey did not state that he had been
threatened by or feared Terry. Dorsey also agreed to “try to chill” after Bailey said
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that he would address the housing situation in a couple of days. Affidavits
prepared by other inmates established that Bailey knew Terry had been a
“troublemaker,” had “past conflicts” with Dorsey, and had been removed from the
cell block the previous week for sexual misconduct, but failed to prove that Bailey
could have known that Terry would hurt Dorsey. Bailey “arguably should have . . .
[separated Dorsey and Terry,] but [a] ‘merely negligent failure to protect an inmate
from attack does not justify liability under section 1983. . . .’” Id. at 1350 (quoting
Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990)).
We AFFIRM the summary judgment in favor of Bailey.
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