                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16030         ELEVENTH CIRCUIT
                                                        APRIL 27, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                  D. C. Docket No. 09-01210-CV-4-RBP-PWG

JEROME TERRY,


                                                             Plaintiff-Appellant,

                                    versus

CHARLES BAILEY,
Correctional Officer,
BISHOP,
Correctional Officer,


                                                          Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________
                               (April 27, 2010)

Before BLACK, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:
       Jerome Terry, an Alabama state prisoner proceeding pro se, appeals the

district court's sua sponte dismissal, pursuant to 28 U.S.C. §1915A, of his 42

U.S.C. § 1983 civil rights action. Terry claims prison officials violated his Eighth

Amendment rights by failing to prevent an altercation between Terry and fellow

inmate, Ethan Dorsey, and by failing to intervene during the altercation.1 On

appeal, Terry primarily reiterates the arguments he made before the district court.

We address his arguments as to each claim in turn, and affirm.

       Section 1915A requires a court to review a prisoner’s civil complaint against

a government entity or officer before or soon after docketing the case to determine

whether the case is frivolous, malicious, fails to state a claim, or whether it seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915A (a), (b).2 This Court reviews de novo the district court’s sua sponte




       1
         In his report and recommendation, the magistrate judge also addresses Terry’s claim that
the guards were deliberately indifferent to his medical needs. Even liberally construing his brief,
however, Terry fails to argue this issue on appeal and we, therefore, need not discuss it. See
Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (demonstrating a party
waives issues not argued on appeal).
       2
         Finding Bailey and Bishop were entitled to qualified immunity, the magistrate judge
dismissed Terry’s complaint under 28 U.S.C. § 1915A(b)(2) which authorizes dismissal of a
prisoner’s claim seeking monetary relief from a defendant who is immune from such relief. Because
we find no constitutional violation, however, we need not reach the issue of qualified immunity and
affirm the dismissal under 28 U.S.C. § 1915A(b)(1) for failure to state a claim. See Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (noting that this Court may affirm the district
court’s judgment “on any ground that finds support in the record.”).

                                                 2
dismissal under § 1915A, taking as true the allegations in the complaint. Boxer X

v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).

       “In order to prevail on a civil rights action under § 1983, a plaintiff must

show that he or she was deprived of a federal right by a person acting under color

of state law,” that is, a person who “acts with authority possessed by virtue of his

employment with the state.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303

(11th Cir. 2001). The Eighth Amendment provides a federal right against the

infliction of cruel and unusual punishment. U.S. Const. amend. VIII.

                                            I.

       We first address Terry’s claim that prison officers Bailey and Bishop failed

to prevent his altercation with his cellmate Dorsey. Although “prison officials

have a duty . . . to protect prisoners from violence at the hands of other prisoners,”

not every instance of inmate on inmate violence “translates into constitutional

liability for prison officials responsible for the victim’s safety.” Farmer v.

Brennan, 511 U.S. 825, 833-34, 114 S. Ct. 1970, 1976-77 (1994) (quotations

omitted). It is “[a] prison official’s ‘deliberate indifference’ to a substantial risk of

serious harm to an inmate [that] violates the Eighth Amendment.” Id. at 828, 114

S. Ct. at 1974. In order to constitute “deliberate indifference,” the prison official

(1) must have subjective knowledge of the risk of serious harm, and (2) must



                                            3
nevertheless fail to reasonably respond to the risk. Id. at 837-38, 114 S. Ct. at

1979-80. “Merely negligent failure to protect an inmate from attack does not

justify liability under section 1983 . . . . The known risk of injury must be a strong

likelihood, rather than a mere possibility before a guard’s failure to act can

constitute deliberate indifference.” Brown v. Hughes, 894 F.2d 1533, 1537 (11th

Cir. 1990) (citations and quotations omitted).

       Terry fails to allege facts indicating Bailey and Bishop had any knowledge

of an impending risk of serious harm to Terry and thus fails to sufficiently plead a

basis for deliberate indifference. Terry conceded before the district court and

concedes on appeal that he could not have put the guards on notice of an

impending attack by Dorsey, because even Terry did not anticipate that Dorsey

would attack him. Without alleging facts indicating Bailey and Bishop had

subjective knowledge of the impending attack, Terry’s claim that they violated his

Eighth Amendment rights by failing to prevent the attack fails.

                                                II.

       We next address Terry’s claim that certain, unspecified prison officials

failed to intervene in Dorsey’s attack on Terry.3 Prison correctional officers may

be held directly liable under § 1983 if they fail or refuse to intervene when a



       3
       Although it is unclear if Terry intended to bring a failure to intervene claim, we construe
his complaint liberally and address the claim accordingly. See Boxer X v. Harris, 437 F.3d at 1110.

                                                4
constitutional violation occurs in their presence. Ensley v. Soper, 142 F.3d 1402,

1407 (11th Cir. 1998). However, in order for liability to attach, the officers must

have been in a position to intervene. See id. (citing Thompson v. Boggs, 33 F.3d

847 (7th Cir. 1994)). Terry claims that some prison officers were outside of the

cubicle area where the altercation took place and merely watched he and Dorsey

fight, but Terry does not allege facts indicating that the duration of the fight or the

position of the guards were such that the guards would have been in a “position to

intervene.” Terry similarly fails to name the officials outside the cubicle area at the

time of the fight, making it unclear if they are even parties to this suit. These

deficiencies are fatal to Terry’s claim for failure to intervene.

      We affirm the district court’s dismissal of Terry’s complaint under 28

U.S.C. § 1915A for failure to state a claim.

      AFFIRMED.




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