                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                         February 13, 2004
                                    FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                            ____________                                      Clerk
                                           No. 03-30629
                                         Summary Calendar
                                          ____________


                ZEBEDEE HUTCHINSON,


                                                Plaintiff-Appellant,

                versus


                KENT O. ANDREWS; CLAYTON, Captain; WACKENHUT
                OFFICIALS; MARK FREEMAN,


                                                Defendants-Appellees.



                            Appeal from the United States District Court
                              For the Western District of Louisiana
                                      USDC No. 01-CV-469



Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

        Zebedee Hutchinson, Louisiana prisoner # 98608, challenges the summary-judgment dismissal

of his 42 U.S.C. § 1983 suit, specifically his claim that Sgt. Mark Freeman was deliberately indifferent




        *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
to his safety by failing to intervene in an altercation between himself and another inmate. Hutchinson

has waived any challenge to the 28 U.S.C. § 1915 (e)(2)(B) dismissal of his claims against Warden

Andrews and Captain Milton Clayton, by not briefing any argument on the issue, and that dismissal

is AFFIRMED. See Yohey v. Collins, 985 F.2d 222, 223-24 (5th Cir. 1993).

        This court reviews a district court’s grant of summary judgment de novo, applying the same

standard as would the district court. Wyatt v. Hunt Plywood Co. Inc, 297 F.3d 405, 408 (5th Cir.

2002). “A motion for summary judgment is properly granted only if there is no genuine issue as to

any material fact.” Id. at 408-09. An issue is material if its resolution could affect the outcome of

the action. Id. at 409. In deciding whether a fact issue has been created, this Court views the facts

and the inferences to be drawn from them in the light most favorable to the nonmoving party. Id.

        Hutchinson claims on appeal that the affidavits of fellow inmates Isiah Tate and Donald Smith

contradicted Freeman’s affidavit testimony, creating a material factual dispute regarding whether

Freeman failed to take reasonable measures to intervene in the fight, which precluded summary

judgment. Smith’s affidavit disputes Freeman’s affidavit regarding who advised Freeman about the

fight; because that question is immaterial to the question of whether Freeman acted with deliberate

indifference, Smith’s affidavit did not preclude summary judgment. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

        Tate’s affidavit, however, presents a more complicated issue. Hutchinson submitted two

affidavits by Tate to the district court. Tate’s earlier affidavit did raise a question of whether Freeman

acted with deliberate indifference because in it Tate stated that Freeman viewed the fight and then left

the area without trying to break it up. Tate’s second affidavit, however, did not state that Freeman

did not try to break up the fight, but rather that Freeman did not break up the fight as claimed, rather


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Tate and Captain Milton Clayton intervened in the fight. As who actually broke up the fight is

immaterial to whether Freeman acted with deliberate indifference, the second affidavit does not

preclude summary judgment. Liberally construing Hutchinson’s pro se brief, the brief encompasses

Tate’s first affidavit, and accordingly does establish a genuine issue of material fact. As such,

summary judgment was inappropriate.

       VACATED and REMANDED for further proceedings.




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