Donnie Lair v. Larry Norris , 32 F. App'x 175 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3738
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Donnie Lair, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Larry Norris, Director, Arkansas * Eastern District of Arkansas.
Department of Correction; G. David *
Guntharp, Deputy Director, Central * [UNPUBLISHED]
Office, Arkansas Department of *
Correction; Randall Morgan, Warden, *
Maximum Security Unit, Arkansas *
Department of Correction; Richard E. *
Wimberly, Major, Maximum Security *
Unit, Arkansas Department of *
Correction; Jimmy Via, Lt. Maximum *
Security Unit, Arkansas Department of *
Correction, (originally sued as Jimmy *
Vie); Mark Nordell, Sgt. Maximum *
Security Unit, Arkansas Department of *
Correction, (originally sued as Sgt *
Nordell); Callaway, Sgt., Maximum *
Security Unit, Arkansas Department of *
Correction; R.D. Allen, Maximum *
Security Unit, Arkansas Department of *
Correction; Moses Jackson, Sgt. *
Maximum Security Unit, Arkansas *
Department of Correction, (originally *
sued as Sgt. Jackson); Gary Keith, Sgt. *
Maximum Security Unit, Arkansas *
Department of Correction, (originally *
sued as Sgt. Keith); Arkansas *
Department of Correction, Pine Bluff, *
Arkansas; Steve Outlaw, Assistant *
Warden, Maximum Security Unit, *
Arkansas Department of Correction, *
(originally sued as S. Outlaw), *
*
Appellees. *
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Submitted: March 1, 2002
Filed: April 3, 2002
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
After Arkansas inmate Donnie Lair was attacked in the exercise yard by fellow
inmate Barry Turner, Lair brought the instant 42 U.S.C. § 1983 failure-to-protect
action. The District Court1 dismissed the suit after an evidentiary hearing, and Lair
appeals. Having reviewed the District Court’s factual findings for clear error and its
conclusions of law de novo, see Choate v. Lockhart, 7 F.3d 1370, 1373 & n.1 (8th
Cir. 1993), we affirm.
Contrary to Lair’s assertions on appeal, the District Court did not abuse its
discretion in denying his various pre-hearing motions. See Beard v. Flying J, Inc.,
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable H. David Young, United States Magistrate Judge for the Eastern District
of Arkansas.
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266 F.3d 792, 802 (8th Cir. 2001) (continuance); Lee v. Armontrout, 991 F.2d 487,
489 (8th Cir.) (per curiam) (discovery), cert. denied, 510 U.S. 875 (1993); Abdullah
v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (appointment of counsel), cert.
denied, 504 U.S. 930 (1992). Further, Lair’s claims against the Arkansas Department
of Correction (ADC), ADC Director Larry Norris and Deputy Director G. Guntharp,
Tucker Maximum Security Unit (MSU) Assistant Warden Steve Outlaw, and MSU
Correctional Officers Richard Wimberly and Jimmy Via were properly dismissed.
See Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en
banc) (§ 1983 suit cannot be brought against state agency), cert. dismissed, 529 U.S.
1001 (2000); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (supervisory liability).
As to the remaining properly served defendants, Lair failed to present evidence
that MSU Warden Randall Morgan and MSU Officers Mark Nordell and Gary Keith
consciously disregarded a substantial risk to his personal safety. See Spruce v.
Sargent, 149 F.3d 783, 785 (8th Cir. 1998); Newman v. Holmes, 122 F.3d 650, 653
(8th Cir. 1997) (deliberate indifference includes something more than negligence but
less than actual intent to harm). Finally, although Lair presented evidence implicating
defendant MSU Officer Moses Jackson in a scheme to have inmate Turner attack
Lair, the defense presented contrary evidence, and the District Court resolved these
witness credibility issues, as it is entitled to do, by crediting the defense’s testimony.
See United States v. Hyatt, 207 F.3d 1036, 1038 (8th Cir. 2000) (district court’s
factual findings will be disturbed only for clear error, especially when findings
involve resolution of witness credibility issues).
Accordingly, we affirm. See 8th Cir. R. 47B.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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