IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41168 Conference Calendar

TYRONE LAMEL WITHERSPOON,

Plaintiff-Appellant,

versus

IVAN WHITE, in his official capacity as Warden, Federal Correctional Institute Texarkana; JANET RENO, in her official capacity as U.S. Attorney General; JERRY STRINGFELLOW, in his official capacity as Doctor, Federal Correctional Institute Texarkana; WADLEY REGIONAL MEDICAL CENTER; KATHLEEN HAWK SAWYER, in her official capacity as Director, U.S. Bureau of Prisons,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:94-CV-51 -------------------- August 24, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges

PER CURIAM:*

Tyrone Lamel Witherspoon appeals summary judgments

dismissing his claims against defendants affiliated with the

Federal Correctional Institute, Texarkana, Texas (“FCI

defendants”) and the Wadley Regional Medical Center (“medical

center”). Witherspoon contends that the FCI defendants failed to

protect him from being stabbed by a fellow prisoner and that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-41168 -2-

FCI defendants and the medical center denied him medical care

after he was stabbed. Witherspoon characterized his action as

one made pursuant to

rather than Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics,

(1971). However, because Witherspoon alleged civil rights

violations by federal defendants, the court construes his

complaint as a Bivens action. See Stephenson v. Reno,

, 26 n.1 (5th Cir. 1994).

The claims against the FCI defendants were dismissed when

the district court adopted the magistrate judge’s report and

recommendation concluding that Witherspoon had failed to raise a

contested issue of fact as to any FCI defendant’s deliberate

indifference to Witherspoon’s safety or medical needs.

Witherspoon appealed the summary judgment, but the appeal was

dismissed because the judgment was not final as to all of the

defendants. See Witherspoon v. White,

(5th

Cir. 1997). Witherspoon and the medical center, the remaining

defendant, consented to refer the case to the magistrate judge,

who granted summary judgment based on Witherspoon’s failure to

raise a contested issue of material fact as to the medical

center’s deliberate indifference to his medical needs.

A grant of summary judgment is reviewed de novo under the

same standards applied in the district court. Amburgey v.

Corhart Refractories Corp.,

(5th Cir. 1991).

Summary judgment is proper when, viewing the evidence in the

light most favorable to the nonmovant, “‘there is no genuine

issue as to any material fact and . . . the moving party is No. 99-41168 -3-

entitled to judgment as a matter of law.’”

(quoting Fed. R.

Civ. P. 56(c)).

Prison officials have a duty under the Eighth Amendment to

protect inmates from violence at the hands of other prisoners.

Farmer v. Brennan,

(1994). However, not every

injury of one prisoner by another “translates into constitutional

liability for prison officials responsible for the victim’s

safety.”

. To establish a failure-to-protect claim,

an inmate must show that he was “incarcerated under conditions

posing a substantial risk of serious harm and that prison

officials were deliberately indifferent to his need for

protection.” Neals v. Norwood,

(5th Cir. 1995).

A prison official acts with deliberate indifference “only if he

knows that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to

abate it.” Farmer,

. If the inmate establishes

no more than a claim of negligence, his claim fails. See Neals,

.

Witherspoon alleges only that he was attacked by another

inmate while in federal custody. He has not alleged any fact or

produced any evidence to show that any defendant knew that

Witherspoon was at risk of being attacked or that any defendant

failed to take any reasonable measure to protect him.

Witherspoon thus fails to raise any contested issue of fact that

is material to his failure-to-protect claim, and the F.C.I.

defendants were entitled to summary judgment on that claim. No. 99-41168 -4-

The Eighth Amendment proscribes medical care that is

“sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Estelle v. Gamble,

(1976). Unsuccessful medical treatment, acts of negligence,

neglect, or medical malpractice, or a prisoner’s disagreement

with prison officials regarding medical treatment are

insufficient to establish an unconstitutional denial of medical

care. Varnado v. Lynaugh,

(5th Cir. 1991);

Norton v. Dimazana,

(5th Cir. 1997).

Witherspoon must prove facts that “clearly evince the medical

need in question and the alleged official dereliction.” Johnson

v. Treen,

(5th Cir. 1985) (internal quotation

and citation omitted).

The defendants presented uncontested evidence that

Witherspoon received constitutionally adequate medical care.

They showed that he reported to the institution’s health services

department with several stab wounds. After being examined by a

physician’s assistant, he was immediately transported to an

outside hospital where further examination by medical doctors and

a surgeon revealed that the stab wounds were superficial.

Witherspoon’s condition was stable, and he was returned to the

prison on August 14. On August 16, he reported again to the

health services department complaining of weakness in his

extremities and difficulty walking, but the physician’s assistant

detected no evidence of weakness or other physical deficit. On

August 19, 1993, Witherspoon was discovered lying on the floor,

unable to rise, and his speech was slurred. Exhaustive testing No. 99-41168 -5-

at a hospital showed that Witherspoon had suffered a bilateral

stroke. He was treated for this stroke and eventually

transferred to a federal medical treatment facility.

The defendants carried their summary-judgment burden, and

Witherspoon failed to raise a contested issue of fact concerning

any defendant’s deliberate indifference to his medical needs.

See Johnson,

. All defendants were entitled to

summary judgment on Witherspoon’s claim that he was denied proper

medical treatment.

The judgment of the district court is AFFIRMED.