Sylvester Barbee v. Jason Boyd

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 20-1261 ___________________________

Sylvester Barbee

lllllllllllllllllllllPlaintiff - Appellant

v.

Jason Boyd, Poultry/Swine Company Inspector, Cummins Unit, ADC

lllllllllllllllllllllDefendant - Appellee

Troy Moore, Physician; Cheryl Ellis, Inspector, Cummins Unit, ADC; Aundrea Weekly, Safety and Sanitation Officer, Cummins Unit, ADC

lllllllllllllllllllllDefendants

Angelika Smarjessi, Food Preparation & Service Manager, Cummins Unit, ADC

Doe, 2012 Henhouse Sanitation Inspector

lllllllllllllllllllllDefendant ____________

Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff ____________

Submitted: August 3, 2020 Filed: August 7, 2020 [Unpublished] ____________ Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges. ____________

PER CURIAM.

In this 42 U.S.C. § 1983 action, Arkansas inmate Sylvester Barbee appeals following the district court’s1 adverse grant of summary judgment. Viewing the record in a light most favorable to Barbee, and drawing all inferences in his favor, we find that summary judgment was properly granted. See Murchison v. Rogers, 779 F.3d 882, 886-87 (8th Cir. 2015) (de novo standard of review). Specifically, we agree with the district court that Barbee did not exhaust administrative remedies on his claims against defendant Angelika Smarjessi, see King v. Iowa Dep’t of Corr., 598 F.3d 1051, 1052 (8th Cir. 2010) (reviewing de novo a dismissal for failure to exhaust); and that the record did not reflect defendant Jason Boyd’s deliberate indifference to Barbee’s risk of exposure to salmonella, see Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017) (finding, in a case challenging conditions of confinement, that requisite state of mind is deliberate indifference to inmate health and safety; official is deliberately indifferent if he actually knows of the substantial risk and fails reasonably to respond to it); Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2009) (recognizing that deliberate indifference is similar to criminal recklessness and requires more than gross negligence). The judgment is affirmed, see 8th Cir. R. 47B; and Barbee’s motion for counsel is denied as moot. ______________________________

1 The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District of Arkansas.

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