                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         MAY 11 2005
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 CARL DEAN WYATT,

           Plaintiff - Appellant,
                                                        No. 04-7088
 vs.                                              (D.C. No. CV-02-539-S)
                                                        (E.D. Okla.)
 GARY E. GIBSON; JEFF ODOM,
 Correctional Officer; K. SUDDUTH,
 Correctional Officer; JOHN DOE,
 Correctional Officer,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


       Carl Dean Wyatt, a state inmate appearing pro se, appeals from the district

court’s dismissal of Defendant Michael Sudduth and grant of summary judgment

in favor of Defendant Jeff Odom. Defendant Gary Gibson was granted summary


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
judgment on the basis of no personal participation. R. Doc. 86. Other

Defendants were dismissed. R. Doc. 53 (Defendant Koplidansky dismissed by

Plaintiff’s agreement); Doc. 97 (Defendant Clarkson dismissed for lack of

service).

      The parties are familiar with the fact and we need not restate them here.

The district court properly concluded that the claim of negligence against

Defendant Sudduth (for failing to detect weapons carried into the exercise yard by

other inmates and used to maim Mr. Wyatt) was not actionable. Deliberate

indifference, not negligence or even gross negligence, regarding a substantial risk

of serious harm must be alleged in a failure to protect claim. See Farmer v.

Brennan, 511 U.S. 825, 842-83 (1994) (failure to protect); Harper v. Alpert, 400

F.3d 1052, 1064 (7th Cir. 2005) (excessive force). We have reviewed the

summary judgment record insofar as Defendant Jeff Odom, taking Mr. Wyatt’s

allegations in his verified pleadings as true, and conclude that the district court’s

disposition was correct. Although Mr. Wyatt has added additional theories on

how weapons were smuggled into the yard (and the extent of the problem), we

agree with the district court that these unsworn allegations do not furnish an

evidentiary basis for resisting summary judgment. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). Thus, we affirm for substantially the reasons given by the

district court in its orders. R. Docs. 98 & 99.


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      AFFIRMED. Mr. Wyatt is reminded of his obligation to continue making

partial payments until the entire balance of the appellate filing fee is paid.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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