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

                                                                            FILED
                                                                        November 26, 2008

                                     No. 08-30365                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


NICK E EUBANKS also known as, Peety Eubanks

                                                  Plaintiff - Appellant
v.

JAMES E JORDAN also known as, Buddy Jordan; GREGG DAVIS, Chief
Deputy; RAYMOND WHITTINGTON, Warden

                                                  Defendants - Appellees



               Appeal from the United States District Court for the
                          Western District of Louisiana
                            USDC No. 1:05-CV-1532


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff Nick E. Eubanks appeals from the district court’s summary
judgment in favor of Defendants on his claims under 42 U.S.C. § 1983 and LA.
CIV. CODE ANN. art. 2315. According to Plaintiff, Defendants denied his due
process rights as a pretrial detainee and were negligent under Louisiana law
because they failed to protect him from an attack by an unknown assailant that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-30365

seriously injured him. In the alternative, Plaintiff asserts that even if he was
not assaulted, but accidentally fell from the upper bunk in his cell, Defendants
wrongfully failed to ensure that he was assigned to a lower bunk based on his
disclosed back problems and prescription for methadone.            Reviewing the
summary judgment de novo, we AFFIRM.
      Plaintiff contends that the district court improperly excluded as hearsay
the affidavit of an inmate, David Hatten. Hatten’s testimony claimed that a
deputy, Todd Williams, made statements suggesting that he had directed
another inmate to attack Plaintiff because he had complained about not
receiving his medicine. Plaintiff further asserts that Sheriff Jordan’s knowledge
and disregard of inadequate security at the jail is demonstrated by his failure to
adopt a recommendation by the Winn Parish Grand Jury that the jail install
additional security cameras. To establish Defendants’ individual liability under
§ 1983 for failure-to-protect, Plaintiff must show that Defendants subjectively
knew that he faced a substantial risk of serious harm and were deliberately
indifferent to that risk. See Hare v. City of Corinth, 74 F.3d 633, 649-50 & n.4
(5th Cir. 1996) (en banc); Scott v. Moore, 114 F.3d 51, 53-54 (5th Cir. 1997) (en
banc).
      Here, Plaintiff admitted that he never voiced concerns regarding his
personal safety to jail officials, and no evidence suggests that other attacks had
occurred in the jail. Thus, even if Hatten’s affidavit were considered alongside
the other summary judgment evidence, including the recommendation by the
grand jury, we agree with the district court that Plaintiff failed to raise a
genuine issue of material fact that Defendants were actually aware of a
substantial risk to Plaintiff’s safety.       There is similarly no evidence that
Defendants knew that failing to assign Plaintiff to a lower bunk was
substantially likely to result in his injury. In sum, Plaintiff failed to show that



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Defendants acted with subjective deliberate indifference, and summary
judgment on his § 1983 claim was therefore proper.
      For much the same reasons, we also agree with the district court that the
lack of evidence that Defendants knew of or had an adequate reason to
anticipate a threat to Plaintiff’s safety also defeats Plaintiff’s negligence claim
under Louisiana law. For negligence liability to attach, “the law requires at
least adequate reason to anticipate harm and failure to take reasonable action
to avert it.” Parker v. State, 282 So.2d 483, 486 (La. 1973) (emphasis added).
Based on the record evidence, including Hatten’s affidavit, we find no genuine
issue of material fact that Defendants knew or should have known that Plaintiff
would either be attacked or would fall from his bunk.
      AFFIRMED.




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