     Case: 10-31172     Document: 00511695973         Page: 1     Date Filed: 12/14/2011




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

                                                                            FILED
                                                                        December 14, 2011

                                       No. 10-31172                        Lyle W. Cayce
                                                                                Clerk

HARDIN IZELL COOPER

                                                  Plaintiff-Appellant
v.

FEDERAL BUREAU OF PRISONS, et al

                                                  Defendants-Appellees



            Appeal from the United States United States District Court
                for the Western District of Louisiana, Alexandria
                                  1:09-CV-967


Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Hardin Izell Cooper appeals the district court’s grant
of summary judgment in favor of the Federal Bureau of Prisons and several
officials employed at the United States Penitentiary in Pollock, Louisiana. The
appellant, a federal prisoner, was stabbed by a fellow inmate on June 13, 2008.
He filed a complaint pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that prison officials
were deliberately indifferent to his safety in violation of the Eighth Amendment.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-31172

The appellant argues that the district court erred in granting the motion for
summary judgment, and that he was entitled to further discovery pursuant to
Rule 56(f) of the Federal Rules of Civil Procedure. For the reasons stated below,
we VACATE the judgment of the district court and remand this case for further
proceedings.
                                          I.
      On June 13, 2008 Hardin Izell Cooper (Cooper) was incarcerated at the
United States Penitentiary in Pollock, Louisiana (USP-Pollock) and housed in
the C-2 unit along with another inmate Todd Jeffs (Jeffs). Cooper alleged that
on that date, Jeffs assaulted him with a metal shank. Cooper suffered wounds
to his abdomen and upper right arm, and underwent two surgeries to repair the
damage. Cooper asserted that Jeffs had been involved in an assault on another
prisoner the day before he was attacked. Cooper also stated that the prison
found metal shanks and metal to make other shanks in Jeffs’ cell 3 days before
Jeffs attacked him, which was supported by an offense report from the prison.
      Cooper described Jeffs as a well known weapons maker who kept an
arsenal of weapons in his cell, and argued that the Bureau of Prisons and prison
officials failed to properly initiate searches for weapons in Jeffs’ cell prior to the
assault. Prison officials stated that Jeffs was not a well known weapons maker,
and that prior to this incident he had never been involved with an assault with
a weapon. They also noted that Cooper and Jeffs had been housed in the same
unit for several weeks without issue.
      Cooper also argued that there were no metal detectors in his housing unit,
that there were too few metal detectors elsewhere in the penitentiary, and that
the metal detectors were often unmanned or ignored. Prison officials stated that
there were ten metal detectors in the facility, and that the prison staff used
hand-held metal detectors and x-ray machines to supplement the walk-through
detectors. The institution also relied on security cameras, security gates, routine

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                                        No. 10-31172

and surprise pat searches and cell searches, and disciplinary procedures to limit
inmate violence.
      Cooper filed a complaint in district court pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)
against the Bureau of Prisons, the Warden of USP-Pollock and other prison
officials alleging that they were deliberately indifferent to his safety in violation
of the Eighth Amendment. The defendants-appellees moved for summary
judgment, to which Cooper responded with an opposition and a request to
engage in further discovery pursuant to Rule 56(f) of the Federal Rules of Civil
Procedure.       The magistrate judge issued a Report and Recommendation
recommending that the district court grant the defendants-appellees’ motion for
summary judgment. The district court adopted the Report and Recommendation
and entered judgment granting defendants-appellees’ motion for summary
judgment and dismissing Cooper’s claims with prejudice.
                                              II.
      The district court’s discovery rulings are reviewed for abuse of discretion.1
      We review a grant of summary judgment de novo, applying the same
standards as the court below.2 “Summary judgment is appropriate when no
genuine issue of material fact exists and the movant is entitled to judgment as
a matter of law.”3




      1
          Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir. 2004).
      2
          Floyd v. Amite Cnty. Sch. Dist., 581 F.3d 244, 247 (5th Cir. 2009).
      3
          Id. at 247–48.

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                                        No. 10-31172

                                             III.
                                              A.
      In conjunction with his opposition to appellees’ motion for summary
judgment, Cooper sought discovery pursuant to Rule 56(f) of the Federal Rules
of Civil Procedure. Rule 56(f) allows for continuation of summary judgment to
conduct further discovery, “to safeguard non-moving parties from summary
judgment that they cannot adequately oppose.”4 Rule 56(f) motions are generally
favored, but the movant must demonstrate why the additional discovery is
necessary and how it will likely create a genuine issue of material fact.5
      The 56(f) motion in this case sought discovery designed to show that USP-
Pollock was an unsafe facility and that Jeffs was a particularly dangerous
inmate. First, it proposed to investigate why the assailant, Jeffs, was not
disciplined immediately following an assault the day before the assault on
Cooper. Second, Cooper sought to depose Jeffs regarding his earlier assaults and
“practices and procedures at Pollock” designed to control inmate possession of
weapons and more particularly what steps the prison took to discover weapons
in Jeffs’ possession. Third, he sought discovery regarding other assaults at the
prison, including interrogatories and a deposition of the warden. Fourth, Cooper
asked for discovery to resolve uncertainty over the number and placement of
walk-through metal detectors at USP-Pollock. Previous affidavits estimated the
number to be between ten and twenty. Fifth, the motion asked for a videotape
of the attack. Finally, Cooper’s 56(f) motion sought discovery of a May 2, 2009
memorandum regarding the number of attacks involving homemade weapons.




      4
          Culwell v. Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006).
      5
          Stearns Airport Equip. v. FMC Corp., 170 F.3d 518, 534-35.

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                                   No. 10-31172

      The summary judgment evidence, including prison records, supported the
view that Jeffs was a dangerous prisoner. We conclude that Cooper should have
been allowed to conduct discovery on whether prison officials knew that Jeffs
was such a danger to his fellow prisoners that they were deliberately indifferent
to the safety of other prisoners in failing to take steps to isolate him or otherwise
protect other inmates.
      The district court will exercise its discretion in the scope of the discovery
but it should include discovery on Jeffs’ history of violence, his history of
possession of and other involvement with weapons in prison, and steps prison
officials took after weapons were discovered in Jeffs’ cell a few days before he
assaulted Cooper.
      We, therefore, VACATE, the district court’s judgment and remand for
further proceedings consistent with this opinion.




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