Johnathan Franklin v. Chad Samuels, et al
UNPUBLISHED OPINION FILED. [15-40390 Affirmed ] Judge: PEH , Judge: ECP , Judge: CH Mandate pull date is 05/16/2017; denying motion to appoint counsel filed by Appellant Mr. Johnathan Franklin [7924185-2] [15-40390]
Date Filed: 04/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
April 25, 2017
Lyle W. Cayce
CHAD L. SAMUELS; JACKIE F. BUSH; MICHAEL W. STEVENS; CARL M.
BURSON; RICHARD WALDRON,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:13-CV-230
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Johnathan Franklin, Texas prisoner # 1550282, appeals the district
court’s summary judgment dismissal of his 42 U.S.C. § 1983 action. He also
moves for the appointment of counsel.
In his § 1983 complaint, Franklin
alleged that a number of correctional staff were deliberately indifferent to a
serious risk to his health and safety in violation of his Eighth Amendment
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 04/25/2017
rights. He also alleged that staff retaliated against him by telling inmates that
he was an informant.
We review a grant of summary judgment de novo, using the same
standard as that employed by the district court. Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). If
the moving party establishes this, the burden shifts to the nonmovant to set
forth specific evidence to support his claims. Duffie v. United States, 600 F.3d
362, 371 (5th Cir. 2010).
Here, Franklin failed to bring forward any specific evidence to support
his allegation that correctional staff retaliated against him or that staff were
deliberately indifferent to the risk of inmate violence against him. See Duffie,
600 F.3d at 371; Adames v. Perez, 331 F.3d 508, 515 (5th Cir. 2003). In the
absence of any evidence that the defendants had a subjective awareness of an
excessive risk to Franklin’s safety or evidence to support his retaliation claim,
the district court did not err in granting summary judgment for the defendants.
See Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007); Bradley v. Puckett,
157 F.3d 1022, 1025 (5th Cir. 1998).
The district court’s judgment is AFFIRMED. In addition, as his case
does not present exceptional circumstances warranting appointment of
counsel, his motion for appointment of counsel is DENIED. See Ulmer v.
Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
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