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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60372

Summary Calendar

KEITH MORRIS,

Plaintiff-Appellant

v.

MATTIE COLLINS,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:07-CV-125

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Keith Morris, Mississippi prisoner # K1590, appeals the district court’s

grant of summary judgment to the defendant and dismissal of his 42 U.S.C.

§ 1983 action alleging failure to protect under the Eighth Amendment. He

argues that a genuine issue of material fact exists regarding whether the

defendant was aware of, or should have been aware of, the threat to his safety.

United States Court of Appeals

Fifth Circuit

F I L E D

March 23, 2010

Charles R. Fulbruge III

Clerk

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No. 09-60372

2

Morris commenced this action against Mattie Collins, a captain at the East

Mississippi Correctional Facility. He asserted that while he was in line for

dinner a large inmate named Danny Irby got in front of him and attempted to

take his food tray. Morris stopped him but then Irby pushed him and threatened

him, saying he was going to beat him up and bite him once they returned to the

zone. Morris contended that Collins saw and heard this incident but did nothing

to stop it even though he looked directly at her when he left the dining hall. Irby

attacked Morris after they had returned to their housing unit.

Via affidavit, Collins asserted that while she was standing outside the

dining hall she observed Morris and Irby arguing. She did not hear any threats

and did not observe any physical contact between the two men. She approached

them and told them to stop it and sit down. They complied.

We review de novo the district court’s grant of summary judgment.

Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999). Summary judgment is

appropriate if the evidence shows that “there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c)(2). To establish an Eighth Amendment claim for failure to

protect, an inmate must show that a prison official’s act or omission resulted in

his being incarcerated under conditions posing a substantial risk of serious harm

and that the prison official was deliberately indifferent to his safety. Farmer v.

Brennan, 511 U.S. 825, 834, 837 (1994).

Morris asserted in his verified complaint that Collins saw and heard

everything that happened in the dining hall. The conclusional assertion that

Collins heard the alleged threat from Irby is not within Morris’s personal

knowledge and, therefore, does not constitute competent summary judgment

evidence. See Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th Cir. 1998).

Accordingly, Morris has not shown that a material issue of fact exists regarding

Collins’s assertion that she did not hear any threats made. Because the evidence

does not show that Collins knew of and deliberately disregarded an excessive

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3

risk to Morris’s safety, the district court did not err in denying Morris’s Eighth

Amendment claim. See Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998);

Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).

Morris’s motions for leave to supplement the record on appeal and to file

a supplemental brief are DENIED. See 5TH CIR. R. 28.4; Theriot v. Parish of

Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).

AFFIRMED.

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