Whitaker v. Gilliam

                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit

               _____________________________________

                            No. 95-30019
                          Summary Calendar
               _____________________________________

                          TONY WHITAKER,

                                              Plaintiff-Appellant,

                              VERSUS

    WILLIAM MIKE GILLIAM, Warden, Winn Correctional Center;
            STAFF MEMBERS OF WINN CORRECTIONAL CENTER

                                             Defendants-Appellees.

     ______________________________________________________

          Appeal from the United States District Court
              for the Western District of Louisiana
                           (CA 93 1807)
     ______________________________________________________
                          August 3, 1995


Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

     Appellant, a prisoner in Louisiana's Winn Correctional Center,

brought this civil rights suit against the warden and unnamed

employees of the prison alleging that the eating utensils were

unsanitary resulting in violation of his Eighth Amendment rights.

The district court granted summary judgment for Defendants.     We

affirm.



1
   Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
      The summary judgment record makes clear that all eating

utensils used at Winn are washed in approved dishwashing machines

after each use and thereby sanitized.             Appellant argues that

occasionally plastic utensils are utilized and that plastic cannot

be   sanitized,    but   he   offers   no   evidence    to   contradict   the

affidavits submitted by the Defendants.          To carry his burden to

show an Eighth Amendment violation Appellant must show that the

risk that the prisoner complains of is so grave that it violates

contemporary standards of decency to expose anyone unwillingly to

such a risk.      Helling v. McKinney, 113 S. Ct. 2475, 2482 (1993).

Appellant has created no such issue of fact.           He has also failed to

carry his burden under Farmer v. Brennan, 114 S. Ct. 1970, 1979

(1994), to show that Defendants were deliberately indifferent to a

serious risk of harm.

      AFFIRMED.




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