Abbott v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 16, 2024
• Docket: 23-30259
• Status: Unpublished

Opinion

Case: 23-30259 Document: 53-1 Page: 1 Date Filed: 02/16/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-30259 FILED February 16, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk William R. Abbott,

Plaintiff—Appellant,

versus

United States of America,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:21-CV-3774 ______________________________

Before Higginbotham, Stewart, and Southwick, Circuit Judges. Per Curiam: * William R. Abbott, federal prisoner # 57819-083, filed a complaint against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., complaining he had been sexually harassed by his transgender cellmate and another inmate. Abbott also alleged his reports of these acts had been ignored, in violation of the Prison Rape Elimination Act (“PREA”), 34 _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.4. Case: 23-30259 Document: 53-1 Page: 2 Date Filed: 02/16/2024

No. 23-30259

U.S.C. § 30301 et seq. Abbott appealed the district court’s order and judgment granting the United States’s motion for summary judgment. We review a district court’s grant of summary judgment de novo, applying the same standards as the district court. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment should be granted “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). Abbott argues the district court deprived him of his Seventh Amendment right to a trial by jury. That right does not prevent granting summary judgment when no material facts are genuinely in dispute. See Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir. 1988). Abbott next complains that prison employees failed to initiate and follow the PREA administrative process in response to his complaints of sexual harassment. The district court concluded that Abbott’s claims were barred under 42 U.S.C. § 1997e(e), which requires a “showing of physical injury or the commission of a sexual act.” See also 28 U.S.C. § 1346(b)(2). Abbott’s own allegations and the witness statements he submitted confirm Abbott’s complaints are limited to alleged mental and emotional injuries and do not create a factual issue as to whether Abbott sustained a physical injury. See Dillon, 596 F.3d at 266. His assertion that the court made credibility determinations about those statements is unsupported by the record. Abbott also asserts his claims relate to sexual acts, which are excluded from the statutory bar. However, the conduct complained of by Abbott does not meet the statutory definition. See 18 U.S.C. § 2246(2). The judgment is AFFIRMED. Abbott’s motion for oral argument and for appointment of counsel is DENIED.