                    Case: 11-15123            Date Filed: 03/07/2013   Page: 1 of 3

                                                                          [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                                No. 11-15123
                                            Non-Argument Calendar
                                          ________________________

                             D.C. Docket No. 4:09-cv-00932-CLS-HGD

ETHAN EUGENE DORSEY, JR.

lllllllllllllllllllllllllllllllllllllll                l                      Plaintiff-Appellant,

                                                    versus

CHARLES BAILEY,
in his individual capacity
and official capacity,

llllllllllllllllllllllllllllllllllllllll                                    Defendant-Appellee.

                                      ________________________

                            Appeal from the United States District Court
                               for the Northern District of Alabama
                                   ________________________

                                               (March 7, 2013)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 11-15123      Date Filed: 03/07/2013   Page: 2 of 3

      Ethan Dorsey, Jr., an Alabama prisoner, appeals pro se the summary

judgment against his complaint that Charles Bailey, a shift commander at the St.

Clair Correctional Facility, acted with deliberate indifference to a substantial risk

of serious physical harm to Dorsey in violation of the Eighth Amendment. See 42

U.S.C. § 1983. Dorsey sued Bailey to recover for injuries that Dorsey suffered

during a fight with his cellmate, Jerome Terry, whom Dorsey had requested that

Bailey relocate to another prison cell. We affirm.

      The district court did not err when it entered summary judgment in favor of

Bailey. Dorsey failed to establish that Bailey was subjectively aware that Dorsey

faced a substantial risk of serious physical harm from Terry. See Carter v.

Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). Bailey’s affidavit established

that, despite an earlier “disagreement” between the prisoners, he did not believe

Terry posed any risk of harm to Dorsey because the inmate-control system officer

who assigned Terry to Dorsey’s cell had determined that the two men were not

“validated enem[ies].” And the inmates had lived peaceably since their

disagreement. Dorsey averred that he and Terry had resided in the same cell block

“for months without incident” and they visited Bailey together to report the

“potential danger” in housing them together. Although Dorsey reported that he did

not “feel comfortable” living with Terry, Dorsey did not state that he had been

threatened by or feared Terry. Dorsey also agreed to “try to chill” after Bailey said

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that he would address the housing situation in a couple of days. Affidavits

prepared by other inmates established that Bailey knew Terry had been a

“troublemaker,” had “past conflicts” with Dorsey, and had been removed from the

cell block the previous week for sexual misconduct, but failed to prove that Bailey

could have known that Terry would hurt Dorsey. Bailey “arguably should have . . .

[separated Dorsey and Terry,] but [a] ‘merely negligent failure to protect an inmate

from attack does not justify liability under section 1983. . . .’” Id. at 1350 (quoting

Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990)).

      We AFFIRM the summary judgment in favor of Bailey.




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