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

                                                FILED
                                                                 February 23, 2009
                                No. 07-60883
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

MARCO CARROTHERS

                                           Plaintiff-Appellant

v.

LAWRENCE KELLY, Superintendent; STANLEY FLAGG, Associate Warden;
RICKY SCOTT, Internal Audit Division; MARY CRAFT, Case Manager;
CHRISTOPHER EPPS, Commissioner; Dr JOHN BEARRY; Medical Director;
LARRY HILL; Dr SANTOS

                                           Defendants-Appellees


                 Appeal from the United States District Court
                   for the Northern District of Mississippi
                            USDC No. 4:05-CV-80


Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Marco Carrothers, Mississippi prisoner # 65329, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 complaint alleging failure-to-protect
and inadequate medical care claims. On de novo review, see Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992), we affirm.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 07-60883

      Carrothers argues that his Eighth Amendment rights were violated when
he was stabbed by a fellow inmate, specifically alleging that defendant Ricky
Scott knew the inmate was a threat to Carrothers and was deliberately
indifferent to Carrothers’s safety when he ordered defendant Mary Craft to
classify Carrothers as a security threat group member and place him on the
same unit as his attacker. To prevail on his failure-to-protect claim, Carrothers
must establish deliberate indifference on the part of the defendants, i.e., that the
defendants knew of but disregarded an excessive risk to his health or safety. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
      Prison records contradict Carrothers’s testimony at the hearing on his
motion for preliminary injunction that both he and Scott knew the offending
inmate was a threat to his safety. Those records reveal that Carrothers gave a
statement to officials shortly after his stabbing indicating that he did not
anticipate the attack, that he never had problems with his attacker, and that he
had played cards and checkers with him without incident.
      Prison records additionally evince that Scott did not order Craft to
reclassify Carrothers and house him in the same unit as his attacker. The
records establish that decision was made by the classification committee based
on the results of an investigation that revealed Carrothers was a known gang
member and a validated security threat. Carrothers has supported his failure-
to-protect claim with only his conclusional testimony regarding the defendants’
knowledge that the offender posed a threat to his safety, and conclusional
allegations or unsubstantiated assertions do not create a fact issue on summary
judgment. See Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006).
      Carrothers also alleged that defendant Larry Hill was deliberately
indifferent to his health and safety when Hill fled the tier while Carrothers was
being stabbed. An officer’s failure to take reasonable measures to protect an
inmate from excessive force can give rise to § 1983 liability; however, the
Constitution does not require unarmed officials to endanger their own safety in

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order to protect a prisoner threatened with physical violence. Longoria v. Texas,
473 F.3d 586, 593-94 (5th Cir. 2006). Carrothers does not allege, and there is no
evidence that, Hill was armed at the time of the assault.           Prison records
establish that Hill ordered the offending inmate to drop his “shank” and, when
he refused, Hill radioed for help. Hill was the only officer on the tier at the time
of the stabbing, and, therefore, his decision to leave the tier to obtain assistance
was not unreasonable. Longoria. In light of the foregoing, Carrothers has failed
to “set forth specific facts showing that there is a genuine issue for trial”
concerning his failure-to-protect claims. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986).
      Carrothers additionally argues that Dr. John Bearry was deliberately
indifferent to his serious medical need, a nerve injury secondary to the stab
wounds, when Bearry failed to follow through with his plan to refer Carrothers
to a specialist. To establish deliberate indifference to his serious medical needs,
Carrothers must present evidence showing that he was refused treatment, his
complaints were ignored, or he was intentionally treated incorrectly in utter
disregard for his serious medical needs. See Domino v. Texas Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001).
      The evidence supports the conclusion that Dr. Bearry did not follow
through with his plan to refer Carrothers to either an orthopedist or a
neurosurgeon. Nevertheless, the medical evidence does not show that there is
a genuine issue as to whether, in so doing, Dr. Bearry was intentionally refusing
to treat Carrothers or ignoring his complaints. At best, the evidence indicates
that Dr. Bearry’s failure was the result of negligence, and acts of negligence are
not cognizable under § 1983. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991).
      Insofar as Carrothers complains that he did not receive additional physical
therapy sessions, he has failed to raise a cognizable § 1983 claim because he is
merely in disagreement with the type of medical care provided. See Varnado,

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920 F.2d at 321. The medical records indicate that Carrothers was prescribed
a “consultation to physical therapy,” which is what he received. He has shown
no error on the part of the district court in this respect.
      Finally, Carrothers’s claim regarding the treatment for his rash also
amounts to nothing more than a disagreement over the medical care received.
The medical records establish that he was repeatedly treated for his rash both
before and after his stabbing and was prescribed several different drugs over the
course of that treatment. These facts do not rise to the level of deliberate
indifference. See Domino, 239 F.3d at 756.
      Insofar as Carrothers argues that the district court erred in denying his
motions for leave to amend, to compel discovery, to sanction the defendants, and
to reschedule the viewing of his x-rays, he has shown no abuse of discretion. See
Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998); Wiwa v. Royal Dutch
Petroleum, Co., 392 F.3d 812, 817 (5th Cir. 2004). He has similarly shown no
abuse of discretion with regard to the district court’s decision to allow the
failure-to-protect defendants to file an out-of-time summary judgment motion,
see Huval v. Offshore Pipelines, Inc., 86 F.3d 454, 458 (5th Cir. 1996), or its
decision to deny his F ED. R. C IV. P. 59(e) motion to alter the judgment rendered
dismissing his medical claims. See Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990).
      AFFIRMED.




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