     Case: 09-60372     Document: 00511060069          Page: 1    Date Filed: 03/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 23, 2010
                                     No. 09-60372
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

KEITH MORRIS,

                                                   Plaintiff-Appellant

v.

MATTIE COLLINS,

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:07-CV-125


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
        Keith Morris, Mississippi prisoner # K1590, appeals the district court’s
grant of summary judgment to the defendant and dismissal of his 42 U.S.C.
§ 1983 action alleging failure to protect under the Eighth Amendment. He
argues that a genuine issue of material fact exists regarding whether the
defendant was aware of, or should have been aware of, the threat to his safety.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-60372

      Morris commenced this action against Mattie Collins, a captain at the East
Mississippi Correctional Facility. He asserted that while he was in line for
dinner a large inmate named Danny Irby got in front of him and attempted to
take his food tray. Morris stopped him but then Irby pushed him and threatened
him, saying he was going to beat him up and bite him once they returned to the
zone. Morris contended that Collins saw and heard this incident but did nothing
to stop it even though he looked directly at her when he left the dining hall. Irby
attacked Morris after they had returned to their housing unit.
      Via affidavit, Collins asserted that while she was standing outside the
dining hall she observed Morris and Irby arguing. She did not hear any threats
and did not observe any physical contact between the two men. She approached
them and told them to stop it and sit down. They complied.
      We review de novo the district court’s grant of summary judgment.
Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999). Summary judgment is
appropriate if the evidence shows that “there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
F ED. R. C IV. P. 56(c)(2). To establish an Eighth Amendment claim for failure to
protect, an inmate must show that a prison official’s act or omission resulted in
his being incarcerated under conditions posing a substantial risk of serious harm
and that the prison official was deliberately indifferent to his safety. Farmer v.
Brennan, 511 U.S. 825, 834, 837 (1994).
      Morris asserted in his verified complaint that Collins saw and heard
everything that happened in the dining hall. The conclusional assertion that
Collins heard the alleged threat from Irby is not within Morris’s personal
knowledge and, therefore, does not constitute competent summary judgment
evidence.   See Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th Cir. 1998).
Accordingly, Morris has not shown that a material issue of fact exists regarding
Collins’s assertion that she did not hear any threats made. Because the evidence
does not show that Collins knew of and deliberately disregarded an excessive

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                                No. 09-60372

risk to Morris’s safety, the district court did not err in denying Morris’s Eighth
Amendment claim. See Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998);
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
      Morris’s motions for leave to supplement the record on appeal and to file
a supplemental brief are DENIED. See 5 TH C IR. R. 28.4; Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
      AFFIRMED.




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