     Case: 15-30187      Document: 00513545952         Page: 1    Date Filed: 06/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-30187                                   FILED
                                  Summary Calendar                             June 13, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
RUSSELL HEWITT,

                                                 Plaintiff-Appellant

v.

MARCUS BEDFORD; CORPORAL CARTER; B. WRIGHT; ROBERT
WYCHE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:13-CV-2404


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Russell Hewitt, presently Louisiana prisoner # 64213, appeals from the
district court’s grant of summary judgment dismissing his 42 U.S.C. § 1983
complaint in which he contended that, while he was a pretrial detainee at the
Caddo Correctional Center, prison officials were deliberately indifferent to his
serious medical needs. He asserted that prison officials, in purposeful violation



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-30187

of a directive that he be housed in a lower bunk on a lower tier, moved him to
a cell on an upper tier to accommodate another inmate. Hewitt alleged that he
fell while descending the stairs from the second-floor cell to which he was
moved and that his back and nerves were injured. We review the grant of
summary judgment de novo. Hernandez v. Yellow Transp., Inc., 670 F.3d 644,
650 (5th Cir. 2012).
      On appeal, Hewitt does not set forth any specific argument regarding the
district court’s dismissal of his claims against Wyche. Accordingly, Hewitt has
abandoned his claims regarding that defendant. See Brinkmann v. Dallas
Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Hewitt argues that there was sufficient evidence to raise genuine issues
of material fact as to whether his back injury was a “serious medical need” and
whether the defendants responded to that need with deliberate indifference.
We need not evaluate whether Hewitt had a “serious medical need” because,
even if we assume that his injury qualified as a “serious medical need,” he has
not alleged the requisite official dereliction. Specifically, the record does not
support that the defendants were aware that Hewitt faced a substantial risk
of serious harm because of his alleged injury, disregarded that risk by moving
him to a cell on an upper tier, and intended for him to be harmed. See Farmer
v. Brennan, 511 U.S. 825, 847 (1994). While the record reflects that at least
some of the defendants knew that Hewitt was assigned to a lower bunk on the
lower tier, there is no indication that any defendant understood that the
assignment was because of a medical condition that gave rise to a substantial
risk of serious harm, thought that any medical condition would be implicated
or exacerbated by moving Hewitt to an upper tier, purposefully ignored the
likelihood that the move would create a serious risk of harm, and subjectively
intended for Hewitt to suffer harm. See id. at 847. Thus, Hewitt has not shown



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                                  No. 15-30187

that the district court incorrectly granted summary judgment on his claim of
deliberate indifference.
      Further, Hewitt maintains that the district court wrongly dismissed his
complaint as malicious pursuant to 28 U.S.C. § 1915(e). He contends that the
district court’s conclusion that he presented a fraudulent claim was a result of
it improperly making a credibility determination as to conflicting statements.
The dismissal of a complaint as malicious is reviewed for an abuse of discretion.
See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988).
      Contrary to Hewitt’s assertion, the district court’s decision to dismiss the
complaint as malicious was not based upon a credibility finding. Although his
cellmate at the time of the relevant events provided separate statements that
were not wholly consistent, only one of the statements complied with 28 U.S.C.
§ 1746 and, therefore, was competent summary judgment evidence. The other
statement, which was unsworn and did not comply with Section 1746, could
not be considered in determining whether to grant summary judgment. See
Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir. 2003); FED. R. CIV. P. 56(c)(4);
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). The
district court relied upon the statement that it could review – which averred
that Hewitt faked his fall down the stairs, fabricated his claim, and sought to
pay a witness to give false testimony – and concluded that he sought to advance
a malicious claim for purposes of Section 1915(e).
      Hewitt contends that the district court erroneously failed to require the
defendants to produce a videotape showing his move to a cell on an upper tier.
The district court did not abuse its discretion in denying his requests for the
videotape. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir.
2004). His requests were not made until after the expiration of the deadline
for discovery and after the defendants had moved for summary judgment; thus,



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the requests were untimely. Moreover, in light of the belated requests, which
Hewitt did not explain, the videotape became unavailable and no longer could
be produced by the defendants. Hewitt otherwise did not establish that the
videotape would have created a genuine issue of material fact that would have
precluded summary judgment. See McFaul v. Valenzuela, 684 F.3d 564, 580
(5th Cir. 2012).
      Accordingly, the district court’s judgment is affirmed. Hewitt’s motion
for the appointment of counsel is denied because this case does not present the
exceptional circumstances required for such an appointment. See Ulmer v.
Chancellor, 691 F.2d 209, 212–13 (5th Cir. 1982).
      The district court’s dismissal counts as a strike. Hewitt has two previous
strikes. See Hewitt v. Henderson, 291 F. App’x 570, 571 (5th Cir. 2008). Thus,
he is barred from proceeding in forma pauperis in any civil action or appeal
filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; MOTION DENIED; SANCTION BAR IMPOSED.




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