     Case: 16-20670       Document: 00514328245         Page: 1     Date Filed: 01/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 16-20670
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           January 30, 2018
WILLIE ATKINS,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellant

v.

FRANK E. SZYMCZAK, Lieutenant; DAVID M. RICE, Major of Correction
Officers; LINDA J. DOUGLAS, Correction Officer-V; SAMMY L. HUBBARD,
Correction Officer-V; ELTON S. SIMMS, Lieutenant of Correction Officers;
ANNA A. SANCHEZ, Sergeant of Correction Officers; FELIPE PERALTA, JR.,
Correction Officer-V; MELLISSA A. WILSON, Sergeant of Correction Officers;
CAREY S. STAPLES, Assistant Warden,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-1985


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Willie Atkins, Texas prisoner # 1441701, proceeding pro se, challenges
the summary judgment in favor of defendants (correctional officers) against his



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 16-20670     Document: 00514328245     Page: 2   Date Filed: 01/30/2018


                                  No. 16-20670

42 U.S.C. § 1983 action claiming multiple violations of his Eighth Amendment
rights.
      Adkins alleges: in May 2010, an inmate began threatening him after a
verbal altercation regarding the inmate’s preferred television station; that
inmate’s destroying Adkins’ personal property in the following days prompted
Adkins to complain to the correctional officers; but the complaints were
ignored. In July, Adkins was ordered to change dormitories after a physical
fight with a third inmate. While he was packing his belongings in preparation
for the move, the inmate linked to the television incident, apparently still
aggrieved by it, punched Adkins in his surgically-repaired eye.
      Adkins alleges the correctional officers were deliberately indifferent to a
substantial risk of harm to him, violating his Eighth Amendment right to be
free from cruel and unusual punishment. E.g., Farmer v. Brennan, 511 U.S.
825, 837 (1994). He also alleges one correctional officer, in violation of the
Eighth Amendment, forced him to work despite his injuries.
      Summary judgment is reviewed de novo, applying the same standard as
the district court.   Hyatt v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016).
Although the movant bears the burden of identifying the absence of a genuine
issue for trial, Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992),
thereafter, “the burden shifts to the nonmov[ant] to show with ‘significant
probative evidence’ that there exists a genuine issue of material fact”,
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (internal
citation omitted). “We review evidence in the light most favorable to the
nonmov[ant], but conclusional allegations and unsubstantiated assertions may
not be relied on as evidence by the nonmov[ant].” Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011).




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                                 No. 16-20670

      Under the Eighth Amendment, “prison officials have a constitutional
duty to protect prisoners from violence at the hands of their fellow inmates”.
Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006).          But, the Eighth
Amendment is violated only by deliberate indifference to a substantial risk of
serious harm to an inmate. Farmer, 511 U.S. at 837. To state a claim for
deliberate indifference, a plaintiff must plead facts to show that “the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference”. Id. In addition, prison work requirements that knowingly compel
inmates to perform physical labor that is beyond their strength, endangers
their lives, or causes undue pain also constitute cruel and unusual punishment
in violation of the Eighth Amendment. Howard v. King, 707 F.2d 215, 219–20
(5th Cir. 1983).
      Adkins has not provided the requisite “significant probative evidence”,
Hamilton, 232 F.3d at 477, showing the correctional officers actually drew an
inference that “a substantial risk of serious harm exist[ed]”, Farmer, 511 U.S.
at 837. Even if he did complain to the corrections officers before the July
assault, the other inmate’s actions do not support an inference of a strong
likelihood of “substantial risk of serious harm” to Adkins. Id. In addition,
although his injuries were sufficient to restrict him from work, his restricted
status was not updated until after he was sent back to work.
      AFFIRMED.




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