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

                                                               FILED
                                                           September 26, 2008
                               No. 07-60329
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

HERMAN BROWN

                                         Plaintiff-Appellant
v.

LAWRENCE KELLY, Superintendent, in his official and personal capacities;
CHRISTOPHER EPPS, Commissioner, in his official and personal capacities;
EMMITT SPARKMAN, Deputy Commissioner, in his official and personal
capacities; EARNEST LEE, Warden, in his official and personal capacities;
TONYA STOKES; TOMMY MITCHELL; HENRY MAXWELL; JOHNNY
ROGERS, Deputy Warden, in his official and personal capacities, DYLESTER
FOSTER, Associate Warden, in her official and personal capacities; STANLEY
FLAGG, Intern Associate Warden, in his official and personal capacities;
BEVERLY WILLIAMS, Correctional Commander, in her official and personal
capacities

                                         Defendants-Appellees


                Appeal from the United States District Court
                  for the Northern District of Mississippi
                          USDC No. 4:05-CV-188


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
     Herman Brown, Mississippi prisoner # R3791 filed a civil rights complaint
against 11 defendants alleging that they were deliberately indifferent to his

     *
      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should not be published and is not precedent except under the limited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. 07-60329

safety because he was stabbed by other inmates.           The defendants were
Superintendent Lawrence Kelly, Commissioner Christopher Epps, Deputy
Commissioner Emmitt Sparkman, Warden Earnest Lee, Officer Stokes, Sergeant
Mitchell, Captain Maxwell, Deputy Warden Johnny Rogers, Associate Warden
Dylester Foster, Associated Warden Stanley Flagg, and Commander Beverly
Williams.
      Following a Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), hearing, the
district court dismissed the claims against Kelly, Epps, Sparkman, Lee, Foster,
and Flagg for failure to state a claim on which relief could be granted. Brown
argues that this was error. A dismissal for failure to state a claim is reviewed
under the same de novo standard as dismissals under FED. R. CIV. P. 12(b)(6).
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); see also In re Katrina
Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007), cert. denied,
128 S. Ct. 1230, 1231 (2008). Supervisory officials are not liable for the actions
of subordinates on a theory of vicarious liability or respondeat superior. See
Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). “Supervisory liability
exists even without overt personal participation in the offensive act if
supervisory officials implement a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the constitutional
violation.” Id. (internal quotations and citation omitted). Although Brown
makes such a policy argument, he has not stated the nature of the policy. His
claim was simply that the defendants should be held responsible for the actions
of their subordinates, who failed in their duties. This is insufficient to support
a claim of a constitutional violation. Brown has not shown that the district court
erred in dismissing his suit against these defendants.
      The claims against Stokes, Mitchell, Maxwell, and Rogers were not
dismissed and went to trial before a jury. At the close of Brown’s case, the
defendants moved for judgment as a matter of law pursuant to FED. R. CIV.
P. 50. The district court granted the motion as to Rogers. Following the

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presentation of the defense’s case the other defendants renewed their motion for
judgment as a matter of law. Brown made no such motion pursuant to FED.
R. CIV. P. 50. The jury returned a verdict in favor of Stokes, Mitchell, and
Maxwell. Within 10 days of the judgment, Brown filed a motion for a new trial
under FED. R. CIV. P. 59 and FED. R. CIV. P. 50(b). The district court treated the
motion as having been brought under Rule 59. The district court found that
although Brown had shown that he could not have been attacked and stabbed
without “negligence on the part of some prison staff[,]” he could not show that
the verdict rejecting the claim of deliberate indifference was against the
overwhelming weight of the evidence.
      Brown argues that the district court erred in denying his motion for a new
trial. “Ordinarily, a district court’s decision not to grant a new trial under [FED.
R. CIV. P.] 59(a) is not appealable.” Toops v. Gulf Coast Marine Inc., 72 F.3d 483,
486 (5th Cir. 1996) (quotation marks omitted). Instead, it is regarded as an
attack on the final judgment. Id. Brown failed to move for judgment as a matter
of law at the close of the evidence pursuant to FED. R. CIV. P. 50.
      If a party fails to move for judgment as a matter of law under [Rule]
      50(a) on an issue at the conclusion of all of the evidence, that party
      waives both its right to file a renewed post-verdict Rule 50(b) motion
      and also its right to challenge the sufficiency of the evidence on that
      issue on appeal. As such, it is the unwavering rule in this Circuit
      that issues raised for the first time on appeal are reviewed only for
      plain error. On plain error review, the question for this court is not
      whether there was substantial evidence to support the jury verdict,
      but whether there was any evidence to support the jury verdict.
Flowers v. Southern Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001)
(quotation marks, citations, and footnote omitted).
      To prevail on his claim that prison officials violated his Eighth
Amendment rights, Brown must have shown that officials acted with deliberate
indifference to his safety. Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). “To
find that an official is deliberately indifferent, it must be proven that the official


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knows of and disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”
Id. (internal quotation marks and citation omitted). If an inmate shows only
that officials acted negligently, his Eighth Amendment claim fails. Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (failure-to-protect case).
      Officer Mitchell testified that he personally strip searched every inmate
present in the exercise yard at the time of the attack on Brown. Officer Stokes
testified that when she unlocked inmate Frierson’s individual pen, he removed
his handcuffs and pulled a knife causing her to fall and injure her thumb.
Frierson seized Stokes’s keys when she fell. Officer Mitchell was observing the
scene and saw Frierson open inmate McGowan’s pen. Mitchell assisted Stokes
and both went for help from other officers because multiple offenders were loose
in the yard. Captain Maxwell testified that there was nothing in the prison
record to indicate that Brown was in any particular danger from his assailants.
This evidence supports the jury’s finding that Brown had not proved a case of
deliberate indifference against Stokes, Mitchell, or Maxwell. Brown has not
established plain error with respect to the jury’s verdict.
      Finally, Brown asserts that the jury did not address the claims against
Rogers. Although Brown is correct in that the jury did not address the claim
against Rogers, the district court had granted judgment as a matter of law as to
Rogers. As Brown does not argue that this motion was granted erroneously, he
has abandoned the issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987)
      The judgment of the district court is AFFIRMED.




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