Cannon v. Culpepper

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 20, 2002
• Docket: 01-60468
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60468 Conference Calendar

LYNWOOD CANNON,

Plaintiff-Appellant,

versus

ROBERT CULPEPPER; ET AL.,

Defendants,

LYNETTE JORDAN; CLASSIFICATION DEPARTMENT; JOHN DOES; JAMES HOLMAN; EARNEST LEE; JAMES R. SMITH,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:00-CV-44-BN -------------------- June 18, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Lynwood Cannon, Mississippi prisoner # 59724, appeals the

denial of his 42 U.S.C. § 1983 claim. He argues that the

magistrate judge erred in denying his request for appointment of

counsel and in finding that Offender Truelove’s prior conviction

for assaulting a prison officer was insufficient to put the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-60468 -2-

defendants on notice that Truelove posed a serious risk of harm

to Cannon. He further argues that the lack of security

overseeing the yard is evidence of the defendants’ deliberate

indifference.

We hold that the magistrate judge did not abuse his

discretion in refusing to appoint counsel in light of the facts

that the evidence was not in dispute, the case was not complex,

and Cannon possessed a sufficient ability to investigate and

present his case. See Castro Romero v. Becken, 256 F.3d 349,

353-54 (5th Cir. 2001). We further hold that the magistrate

judge did not clearly err in finding that the defendants did not

possess the requisite knowledge to support their liability under

42 U.S.C. § 1983. See Neals v. Norwood, 59 F.3d 530, 533 (5th

Cir. 1995)(whether defendants possessed knowledge that inmate

faced a substantial risk of serious harm is a question of fact);

Nationwide Mut. Ins. Co. v. Dunning, 252 F.3d 712, 716 (5th Cir.

2001) (findings of fact are reviewed for clear error). Cannon

presented no evidence that in the one to two years after

Truelove’s conviction, he had committed any other assaults or had

exhibited behavior such that the defendants should have been

aware that he posed a risk of serious harm.

Because Cannon has failed to establish that the defendants

knew that he faced a substantial risk of serious harm, the

alleged lack of security overseeing the yard can, at most, be

negligence on the part of the defendants, which is not actionable No. 01-60468 -3-

in a 42 U.S.C. § 1983 action. See Oliver v. Collins, 914 F.2d

56, 60 (5th Cir. 1990).

AFFIRMED; all outstanding motions are DENIED.