Kelly v. Grounds ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41166
Conference Calendar
BOBBY JOE KELLY,
Plaintiff-Appellant,
versus
DAWN GROUNDS, Assistant Warden; STANLEY MELVIN, Ad-Seg
Major; CHARLES KING, Ad-Seg Officer; UNKNOWN ESTES,
Ad-Seg Officer; UNKNOWN LEVERETT, Ad-Seg Sergeant;
ROBERT OAKES,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:00-CV-123
--------------------
April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Bobby Kelly, Texas prisoner # 626124, appeals the district
court’s grant of summary judgment for the defendants in his 42
U.S.C. § 1983 action. Kelly argues that the district court
improperly decided disputed factual issues in granting the
defendants’ motion for summary judgment. He contends that he
alleged in his complaint, which was made under penalty of
perjury, that the defendants intentionally allowed another inmate
*
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that this opinion should not be published and is not precedent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. 01-41166
-2-
to assault him with feces. He argues that his allegations
squarely contradict the defendants’ assertions that they had no
knowledge of the assaults, and that the district court made an
impermissible credibility judgment. He contends that the
defendants were deliberately indifferent to his health and safety
by failing to protect him.**
We affirm the district court’s grant of summary judgment on
other grounds. See Matthews v. Wozencraft, 15 F.3d 432, 439 (5th
Cir. 1994). The defendants presented summary judgment evidence
in the form of an affidavit of Dr. Robert Brock, who attested
that the incidents of contact with fecal material alleged by
Kelly posed no risk of contracting tuberculosis, Hepatitis B or
C, or HIV. Kelly presented no evidence to the contrary. This
evidence supports the legal conclusion that, taking all of
Kelly’s allegations as true, he has not raised a genuine issue of
material fact concerning whether the prison officials possessed
knowledge of a substantial risk of harm. See Shakka v. Smith, 71
F.3d 162, 167-68 (4th Cir. 1995) (no evidence of significant risk
of future serious harm from denial of a shower for three days
after other inmates threw urine and feces at plaintiff, when
plaintiff had been given water and cleaning materials after
incident).
AFFIRMED.
**
Kelly makes no argument concerning the dismissal of
Leverett in his appellate brief, and his claim against Leverett
is considered abandoned. Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993).