UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-30615
Summary Calendar
VERNON L. ORANGE,
Plaintiff-Appellant,
VERSUS
JACK STRAIN, Sheriff of St. Tammany Parish, et al,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-1010-T)
August 2, 1999
Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Vernon L. Orange appeals the district
court’s grant of summary judgment against him in this case.
Orange, now a prisoner at the Louisiana State Penitentiary in
Angola, filed this suit alleging violations of his constitutional
rights during his incarceration at the St. Tammany Parish Jail.
Orange’s allegations arise out of a beating he allegedly suffered
at the hands of another prisoner and the medical treatment he
received for the injuries suffered from this beating.
The magistrate judge hearing this case pursuant to 28 U.S.C.
*
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this opinion should not be published and is not precedent except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.
§ 636(c) granted summary judgment to the numerous defendants.
Orange appeals this grant of summary judgment on a number of
grounds. We affirm the judgment of the magistrate judge with the
following exception.
Orange alleged in his sworn complaint a “failure to protect”
claim against Deputy Casey Cagle, Sr., who was then working at the
St. Tammany Parish Jail. In this complaint, Orange stated that he
had warned Cagle of an impending physical confrontation with
another prisoner. Orange alleged that Cagle then left his post
without cause, at which point Orange was attacked by the other
prisoner. Cagle, in an affidavit supporting his motion for summary
judgment, denied that he left his post during the night in
question, but did not dispute or comment on Orange’s claim that he
had warned Cagle of the impending physical attack by the other
prisoner. In Orange’s response affidavit, Orange again alleged
that Cagle left his post unattended, but did not re-allege that he
(Orange) had warned Cagle of the impending attack.
The magistrate judge, in ruling that there was no genuine
issue of material fact with respect to Orange’s claim against
Cagle, emphasized that Orange did not re-allege that he had warned
Cagle of the impending attack. However, because Cagle’s affidavit
did not deny that Orange warned him of the impending attack, the
magistrate judge should have considered Orange’s allegation of his
warning to Cagle contained in his complaint in determining whether
summary judgment was appropriate on Orange’s failure to protect
claim against Cagle. We therefore remand this specific issue for
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further proceedings consistent with this opinion. The magistrate
judge’s judgment is otherwise affirmed.
AFFIRMED in part, VACATED and REMANDED in part.
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