Case: 09-20540     Document: 00511224022          Page: 1    Date Filed: 09/02/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 2, 2010
                                     No. 09-20540
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

STEVE GREEN,

                                                   Plaintiff-Appellant

v.

MISS ROSS, Shift Officer; CHRISTOPHER DOUGLAS, also known as Bull Dog;
NURSE RICHEY,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:07-CV-1948


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Steve Green, Texas prisoner # 1436873, appeals the district court’s grant
of summary judgment to the defendants in his 42 U.S.C. § 1983 action. Green
alleged that while he was a pretrial detainee at the Brazos County Jail, guard
Billie Jean Ross failed to protect him by placing him in the same holding tank
as inmate Christopher Douglas after Ross had broken up a fight between Green
and Douglas. Green asserted that Douglas subsequently assaulted him and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20540   Document: 00511224022 Page: 2        Date Filed: 09/02/2010
                                No. 09-20540

broke his rib. He maintained that Nurse Darlene Ritchey did not always provide
him the proper medication for his broken rib and gave him incorrect advice
regarding how to lie down with a broken rib.
      With the benefit of liberal construction, Green argues that the district
court erred by granting summary judgment on his failure to protect claim
because he was negligently placed in danger by Ross.         He maintains that
affidavits he submitted in the district court list witnesses to both of the
altercations between him and Douglas. Green states that Douglas would verify
that both altercations occurred and that Douglas would not have broken Green’s
rib if Ross had not placed Green in the same holding tank.
      In support of their motion for summary judgment, the defendants
submitted an affidavit from Ross in which she averred that she had never
witnessed Green being involved in a physical altercation with Douglas or anyone
else. Ross further averred that Green was not on a no-contact list with any
prisoner because of a physical altercation.    The defendants also submitted
Green’s inmate incident history report showing that there had been no reported
problems between Green and Douglas. The commander of the Brazos County
Jail averred that Green had never filed a complaint about Douglas.
      In the district court, Green contended that Ross should have placed him
on a “no contact” list with respect to the other inmate. However, he failed to
bring forward any competent summary-judgment evidence that any such failure
constituted deliberate indifference to his need for protection as necessary to
support a failure-to-protect claim. See, e.g., Neals v. Norwood, 

, 533
(5th Cir. 1995). Green’s averments regarding how third party witnesses would
testify were not competent summary judgment evidence. See F ED. R. C IV. P.
56(e); Martin v. John W. Stone Oil Distrib., Inc., 

, 549 (5th Cir.
1987). As the defendants submitted a properly supported motion for summary
judgment and Green did not produce sufficient evidence to show the existence
of a genuine issue of material fact, the district court did not err by granting

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                                 No. 09-20540

summary judgment on Green’s failure to protect claim. See United States v.
Lawrence, 

, 197 (5th Cir. 2001).
      With the benefit of liberal construction, Green argues that the district
court erred by granting summary judgment on his denial of medical care claim.
Green contends that he was “not given the proper medication,” that Ritchey
“claims it was a call in medication when we all know a fresh broke rib hurts” and
that, “being a nurse [Ritchey] should know this fact [] and would give pain
medications freely.”   Green further asserts that “giving [incorrect] medical
advice . . . is not ‘common,’” apparently referring to his claim that Ritchey gave
him incorrect medical advice regarding how to lie down with a broken rib.
      In the pleadings and affidavits he filed in the district court, Green alleged
only that Ritchey negligently and carelessly gave him the wrong medication,
once insisted on calling in the request for medication before giving the
medication to him, gave him incorrect advice regarding how to lie down with a
broken rib, and would not allow him to have an extra mat on which to sleep.
Green, however, did not allege or aver that Ritchey intentionally treated him
incorrectly or that he suffered any injury from his alleged mistreatment. The
defendants submitted evidence indicating that Green received his proper
medication when he made a proper request for the medication and did not refuse
to take it. As Green did not provide evidence showing that Ritchey’s actions
constituted more than negligence or that he suffered any injury due to Ritchey’s
actions, the district court did not err by granting summary judgment on Green’s
denial of medical care claim. See Wagner v. Bay City, Tex., 

, 324
(5th Cir. 2000); Varnado v. Lynaugh, 

, 321 (5th Cir. 1991).
      For the first time on appeal, Green alleges that, since the filing of his
complaint, he was sexually assaulted and that he now suffers from “rape trauma
syndrome.” Because this claim was not raised in the district court, we do not
consider it. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc.,

, 316-17 (5th Cir. 2000).

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                               No. 09-20540

     AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
MOTION FOR ENTRY OF DEFAULT JUDGMENT DENIED; MOTION FOR
SETTLEMENT OF APPEAL DENIED; MOTION FOR LEAVE TO FILE
SUPPLEMENTAL REPLY BRIEF GRANTED.




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