Cannon v. Culpepper ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60468
Conference Calendar
LYNWOOD CANNON,
Plaintiff-Appellant,
versus
ROBERT CULPEPPER; ET AL.,
Defendants,
LYNETTE JORDAN; CLASSIFICATION DEPARTMENT; JOHN DOES;
JAMES HOLMAN; EARNEST LEE; JAMES R. SMITH,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CV-44-BN
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lynwood Cannon, Mississippi prisoner # 59724, appeals the
denial of his 42 U.S.C. § 1983 claim. He argues that the
magistrate judge erred in denying his request for appointment of
counsel and in finding that Offender Truelove’s prior conviction
for assaulting a prison officer was insufficient to put the
*
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that this opinion should not be published and is not precedent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.
No. 01-60468
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defendants on notice that Truelove posed a serious risk of harm
to Cannon. He further argues that the lack of security
overseeing the yard is evidence of the defendants’ deliberate
indifference.
We hold that the magistrate judge did not abuse his
discretion in refusing to appoint counsel in light of the facts
that the evidence was not in dispute, the case was not complex,
and Cannon possessed a sufficient ability to investigate and
present his case. See Castro Romero v. Becken, 256 F.3d 349,
353-54 (5th Cir. 2001). We further hold that the magistrate
judge did not clearly err in finding that the defendants did not
possess the requisite knowledge to support their liability under
42 U.S.C. § 1983. See Neals v. Norwood, 59 F.3d 530, 533 (5th
Cir. 1995)(whether defendants possessed knowledge that inmate
faced a substantial risk of serious harm is a question of fact);
Nationwide Mut. Ins. Co. v. Dunning, 252 F.3d 712, 716 (5th Cir.
2001) (findings of fact are reviewed for clear error). Cannon
presented no evidence that in the one to two years after
Truelove’s conviction, he had committed any other assaults or had
exhibited behavior such that the defendants should have been
aware that he posed a risk of serious harm.
Because Cannon has failed to establish that the defendants
knew that he faced a substantial risk of serious harm, the
alleged lack of security overseeing the yard can, at most, be
negligence on the part of the defendants, which is not actionable
No. 01-60468
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in a 42 U.S.C. § 1983 action. See Oliver v. Collins, 914 F.2d
56, 60 (5th Cir. 1990).
AFFIRMED; all outstanding motions are DENIED.