* 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should not be published and is not precedent except under the limited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. 07-60357

Summary Calendar

CHARLES BROOKS, SR

Plaintiff-Appellant

v.

RICHARD STRINGER; JOE MINGO; MS PAYNE

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:04-CV-120

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Former pretrial detainee, Charles Brooks, Sr., seeks leave to proceed in

forma pauperis (IFP) in his appeal challenging the granting of the defendants’

summary judgment motion and the subsequent dismissal of his 42 U.S.C. § 1983

suit. His civil rights lawsuit sought damages for an assault by another inmate

while he was housed as a pretrial detainee at the Marion-Walthall Correctional

Facility (MWCF).

United States Court of Appeals

Fifth Circuit

F I L E D

December 18, 2008

Charles R. Fulbruge III

Clerk
No. 07-60357

2

Brooks argues that the district court erred in finding that Marilyn Payne

and Warden Mingo had to have “in fact” knowledge of a substantial risk to

Brooks’s safety to be liable under § 1983. Brooks also argues that the district

court erred in finding that Payne was not deliberately indifferent to his safety,

that the district court erred in failing to find that there was no practice or

custom of permitting “pervasive violence” at the prison, that the district court

erred in failing to find Sheriff Stringer liable under § 1983 because he failed to

implement corrective policies to stop inmate violence at the prison, and that the

district court erred in striking the affidavit of Anthony Jackson. Because Brooks

does not address the district court’s dismissal of his state law claims, any

challenge to the dismissal of those claims has been abandoned. See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Brooks also abandons his claims

against Payne and Warden Mingo in their official capacities. Id.

Brooks has demonstrated that he is a pauper and that his appeal raises

nonfrivolous issues for appeal. Accordingly, we grant his IFP motion. See

Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982); 28 U.S.C. § 1915(a)(3). We

dispense, however, with further briefing in this appeal, and, for the reasons

noted below, affirm the district court’s judgment.

We find first that any error in excluding Anthony Jackson’s affidavit was

harmless because the majority of his affidavit was conclusory, lacked personal

knowledge, or constituted hearsay and the remainder of his affidavit did not

establish that the defendants violated Brooks’s constitutional rights. See FED.

R. CIV. P. 26 and 56; St. Romain v. Indus. Fabrication & Repair Serv., Inc., 203

F.3d 376, 380 (5th Cir. 2000). Accordingly, we do not consider the substance of

Jackson’s affidavit in connection with the resolution of Brooks’s remaining

appellate issues.

Payne was not deliberately indifferent to a risk of violence, be it pervasive

or not, to Brooks if he was released into the general prison population because

she determined, based upon several conferences with Warden Mingo and her
No. 07-60357

3

own observations, that Brooks would not be in danger if he was released from

lock-down. See Farmer v. Brennan, 511 U.S. 825, 843 (1994). Therefore, Brooks

has failed to make a showing of a genuine issue of material fact as to Payne’s

subjective deliberate indifference. Without making such a showing, Brooks

cannot, as a matter of law, demonstrate the violation of a clearly established

constitutional right, see id. at 834, and Payne, in her individual capacity, was

entitled to qualified immunity.

Brooks argues that Warden Mingo must have known of “pervasive

violence”in the prison because he visited the general population once a week, he

got daily briefings from his officers, and one of the briefing officers was his son,

Derek Mingo, who was chief of security. Brooks’s conclusory speculation as to

what Warden Mingo might have known does not dispute Warden Mingo’s

testimony that inmate fights at the prison were rare and not violent and that,

with the exception of Brooks, he was unaware of any injuries suffered from

inmate fights. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). In

addition, even if Warden Mingo knew of a risk, the summary judgment evidence

indicates that he consulted severaltimes with Payne, who believed there was no

risk to Brooks, before he approved Brooks’s release into the general population.

Accordingly, as there was no material dispute of fact regarding whether Warden

Mingo knew of a risk of “pervasive violence” and as there was no material

dispute of fact regarding whether he was subjectively indifferent to such a risk,

the district court properly granted summary judgment to Warden Mingo in his

individual capacity.

A review ofthe record establishes thatthere is no evidence indicating that

the prison had a policy of housing rival inmates together or that Sheriff Stringer

failed to implement a policy to address inmate violence. In fact, the summary

judgment evidence indicated that pretrial detainees were placed on lock-down

and were only released to the general population if they requested such a

release, there was an evaluation done regarding the inmate’s safety, and the
No. 07-60357

4

warden approved the release. Summary judgment regarding Brooks’s claims

against Sheriff Stringer in his individual and official capacities was therefore

appropriate. See Hare v. City of Corinth, Miss., 74 F.3d 633, 639, 643 (5th Cir.

1996) (en banc); Kentucky v. Graham, 473 U.S. 159, 166 (1985).

AFFIRMED; MOTION GRANTED.