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

                                                               FILED
                                                            December 18, 2008
                               No. 07-60357
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

CHARLES BROOKS, SR
                                         Plaintiff-Appellant

v.

RICHARD STRINGER; JOE MINGO; MS PAYNE

                                         Defendants-Appellees


                Appeal from the United States District Court
                  for the Southern District of Mississippi
                          USDC No. 2:04-CV-120


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
     Former pretrial detainee, Charles Brooks, Sr., seeks leave to proceed in
forma pauperis (IFP) in his appeal challenging the granting of the defendants’
summary judgment motion and the subsequent dismissal of his 42 U.S.C. § 1983
suit. His civil rights lawsuit sought damages for an assault by another inmate
while he was housed as a pretrial detainee at the Marion-Walthall Correctional
Facility (MWCF).




     *
      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should not be published and is not precedent except under the limited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. 07-60357

      Brooks argues that the district court erred in finding that Marilyn Payne
and Warden Mingo had to have “in fact” knowledge of a substantial risk to
Brooks’s safety to be liable under § 1983. Brooks also argues that the district
court erred in finding that Payne was not deliberately indifferent to his safety,
that the district court erred in failing to find that there was no practice or
custom of permitting “pervasive violence” at the prison, that the district court
erred in failing to find Sheriff Stringer liable under § 1983 because he failed to
implement corrective policies to stop inmate violence at the prison, and that the
district court erred in striking the affidavit of Anthony Jackson. Because Brooks
does not address the district court’s dismissal of his state law claims, any
challenge to the dismissal of those claims has been abandoned. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Brooks also abandons his claims
against Payne and Warden Mingo in their official capacities. Id.
      Brooks has demonstrated that he is a pauper and that his appeal raises
nonfrivolous issues for appeal. Accordingly, we grant his IFP motion. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982); 28 U.S.C. § 1915(a)(3). We
dispense, however, with further briefing in this appeal, and, for the reasons
noted below, affirm the district court’s judgment.
      We find first that any error in excluding Anthony Jackson’s affidavit was
harmless because the majority of his affidavit was conclusory, lacked personal
knowledge, or constituted hearsay and the remainder of his affidavit did not
establish that the defendants violated Brooks’s constitutional rights. See FED.
R. CIV. P. 26 and 56; St. Romain v. Indus. Fabrication & Repair Serv., Inc., 203
F.3d 376, 380 (5th Cir. 2000). Accordingly, we do not consider the substance of
Jackson’s affidavit in connection with the resolution of Brooks’s remaining
appellate issues.
      Payne was not deliberately indifferent to a risk of violence, be it pervasive
or not, to Brooks if he was released into the general prison population because
she determined, based upon several conferences with Warden Mingo and her

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own observations, that Brooks would not be in danger if he was released from
lock-down. See Farmer v. Brennan, 511 U.S. 825, 843 (1994). Therefore, Brooks
has failed to make a showing of a genuine issue of material fact as to Payne’s
subjective deliberate indifference. Without making such a showing, Brooks
cannot, as a matter of law, demonstrate the violation of a clearly established
constitutional right, see id. at 834, and Payne, in her individual capacity, was
entitled to qualified immunity.
      Brooks argues that Warden Mingo must have known of “pervasive
violence” in the prison because he visited the general population once a week, he
got daily briefings from his officers, and one of the briefing officers was his son,
Derek Mingo, who was chief of security. Brooks’s conclusory speculation as to
what Warden Mingo might have known does not dispute Warden Mingo’s
testimony that inmate fights at the prison were rare and not violent and that,
with the exception of Brooks, he was unaware of any injuries suffered from
inmate fights. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). In
addition, even if Warden Mingo knew of a risk, the summary judgment evidence
indicates that he consulted several times with Payne, who believed there was no
risk to Brooks, before he approved Brooks’s release into the general population.
Accordingly, as there was no material dispute of fact regarding whether Warden
Mingo knew of a risk of “pervasive violence” and as there was no material
dispute of fact regarding whether he was subjectively indifferent to such a risk,
the district court properly granted summary judgment to Warden Mingo in his
individual capacity.
      A review of the record establishes that there is no evidence indicating that
the prison had a policy of housing rival inmates together or that Sheriff Stringer
failed to implement a policy to address inmate violence. In fact, the summary
judgment evidence indicated that pretrial detainees were placed on lock-down
and were only released to the general population if they requested such a
release, there was an evaluation done regarding the inmate’s safety, and the

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warden approved the release. Summary judgment regarding Brooks’s claims
against Sheriff Stringer in his individual and official capacities was therefore
appropriate. See Hare v. City of Corinth, Miss., 74 F.3d 633, 639, 643 (5th Cir.
1996) (en banc); Kentucky v. Graham, 473 U.S. 159, 166 (1985).
      AFFIRMED; MOTION GRANTED.




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