     Case: 13-30611      Document: 00512616993         Page: 1    Date Filed: 05/02/2014




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

                                    No. 13-30611                                 FILED
                                  Summary Calendar                            May 2, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
BRENDON LEE LANDS,

                                                 Plaintiff-Appellant

v.

SERGEANT LEMOINE; SERGEANT BAPTISTE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CV-343


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Brendon Lee Lands, Louisiana prisoner # 448561, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint against Sgt. Billy
Lemoine and M. Sgt. Glenn Batiste for injuries sustained at the hands of fellow
inmate Williams Hebert while he was incarcerated at the Avoyelles
Correctional Center (ACC) in Cottonport, Louisiana. He does not challenge
the district court’s grant of Sgt. Lemoine’s motion for summary judgment or


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-30611    Document: 00512616993      Page: 2   Date Filed: 05/02/2014


                                 No. 13-30611

the district court’s denials of his motions to substitute Sgt. Gregory Normand
as a named defendant. These issues are therefore abandoned. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Lands contends that the district court erred in granting M. Sgt. Batiste’s
motion for summary judgment. He argues that the district court’s decision was
based on M. Sgt. Batiste’s false and misleading statements, that M. Sgt.
Batiste’s affidavit was deficient, that M. Sgt. Batiste violated ACC rules, and
that M. Sgt. Batiste knew there was a substantial risk of inmate attacks at the
ACC and disregarded that risk when he left his post unguarded and failed to
reasonably intervene in the attack.
      We review a grant of summary judgment de novo, using the same
standard as that employed by the district court. Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). If
the moving party establishes this, the burden shifts to the nonmovant to set
forth specific evidence to support his claims. Duffie v. United States, 600 F.3d
362, 371 (5th Cir. 2010).
      In his affidavit and certified response to the deposition by written
questions, M. Sgt. Batiste denied any knowledge of Hebert’s prior theft
complaint or that Hebert believed Lands was one of the inmates responsible.
Lands has presented no evidence that rebuts this contention. M. Sgt. Batiste’s
general acknowledgement that “[i]nmate attacks take place often at all hours
of the day and night” was insufficient to establish that he knew Lands faced a
substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 842-
43 (1994). Further, the Unusual Occurrence Reports completed by the officers
on duty at the time of the incident state that upon seeing Hebert hit Lands, M.



                                       2
    Case: 13-30611     Document: 00512616993     Page: 3   Date Filed: 05/02/2014


                                  No. 13-30611

Sgt. Batiste immediately yelled “fight,” activated a beeper, entered the tier,
and ordered Hebert to stop. Although questions about some of the details
remain, if we consider those facts in the light most favorable to Lands, they do
not show that M. Sgt. Batiste acted with deliberate indifference. M. Sgt.
Batiste had other job duties, such as rounds and counts, which required him to
walk away while still observing the tier.
      Lands’s conclusional allegations that M. Sgt. Batiste violated ACC rules
by conducting his counts 15 minutes after each hour rather than at the top of
each hour, that he left his post unguarded, and that he failed to act with
reasonable diligence in his efforts to stop the attack are insufficient to raise a
genuine issue of material fact as to whether he deliberately disregarded a
known risk to Lands’s safety. See Farmer, 511 U.S. at 837. Rather, these
allegations suggest that, at most, M. Sgt. Batiste did not act reasonably and
was negligent in his duties. Mere negligence by officials in failing to protect a
prisoner from an assault does not form the basis of a § 1983 claim. See Oliver
v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Therefore, the district court did not
err in granting M. Sgt. Batiste’s motion for summary judgment.
      Lands also contends that the district court erred in granting summary
judgment and denying, as moot, his motion for leave to file an additional brief
in support of his cross motion for summary judgment without first enforcing
the magistrate judge’s February 14, 2013, order to compel the production of
color copies of the photographs taken on the date of the incident. He argues
that the district court should have continued its consideration of the summary
judgment motions because the defendants defied the magistrate judge’s order
and the withheld evidence would have supported his claims.
      Even if Lands’s motion to enforce the magistrate judge’s order and his
objections to the magistrate judge’s report and recommendation could have



                                        3
    Case: 13-30611    Document: 00512616993     Page: 4   Date Filed: 05/02/2014


                                 No. 13-30611

been construed as requests for a continuance under Federal Rule of Civil
Procedure 56(d), he cannot show that color copies of the photographs taken on
the date of the incident would have created a genuine issue of material fact
sufficient to defeat summary judgment. See Raby v. Livingston, 600 F.3d 552,
561 (5th Cir. 2010). Therefore, Lands has failed to show that the district court
abused its discretion in granting summary judgment and denying his motion
for leave to file an additional brief in support of his cross motion for summary
judgment without first enforcing the magistrate judge’s order. See id.
      Finally, Lands contends that the district court erred in denying his April
8, 2013, motion for leave to amend his complaint. His proposed amended
complaint sought to change his claim against M. Sgt. Batiste from
“abandonment of duty” to “breach of duty,” to allege that M. Sgt. Batiste was
the acting lieutenant and responsible for overseeing the entire unit, to allege
that M. Sgt. Batiste was deliberately indifferent to his safety by failing to
intervene and stop the attack, and to expand the amount and type of requested
relief. Lands does not explain how these new facts and allegations would have
affected the disposition of his claims. Further, the proposed amendments to
Lands’s complaint would have been futile. Therefore, the district court did not
abuse its discretion in denying Lands’s motion for leave to amend his
complaint. See Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.
2005).
      Accordingly, the district court’s judgment is AFFIRMED.




                                       4
