Keyes v. Anderson ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60355
Summary Calendar
BILLY KEYES, All Others Similarly Situated,
Plaintiff-Appellant,
versus
JAMES V. ANDERSON, COMMISSIONER,
MISSISSIPPI STATE PENITENTIARY; WALTER BOOKER;
ROBERT ARMSTRONG; CAPTAIN THOMAS; LARRY KEYS;
MARGARET LITTLE; CORINNE WALKER; GWENDOLYN HUNTER;
OFFENDER SERVICES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:98-CV-190-B-D
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April 26, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Billy Keyes, Mississippi prisoner # 94580, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 and state-law
claims. For the following reasons, we affirm.
Keyes erroneously complains that he was subjected to trial by
magistrate judge without effectuating the necessary consent. This
*
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that this opinion should not be published and is not precedent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. 01-60355
-2-
argument is meritless because the magistrate judge conducted an
evidentiary hearing, not a trial, and had the authority to do so
pursuant to 28 U.S.C. § 636(b)(1)(B). He also erroneously
complains that the district court did not conduct de novo review of
the magistrate judge’s recommendations; however, absent an
indication to the contrary, it is assumed de novo review was
conducted. See Longmire v. Guste, 921 F.2d 620, 623 (5th Cir.
1991).
We hold that the magistrate judge did not abuse his discretion
in not calling defendant Little as a witness at the evidentiary
hearing in light of his finding that the facts surrounding the
event which gave rise to this litigation were not in dispute. See
Cozzo v. Tangipahoa Parish Council--President Gov’t, 279 F.3d 273,
291 (5th Cir. 2002) (evidentiary rulings are reviewed for an abuse
of discretion). We further hold that the district court did not
err in its determination that Keyes failed to establish that the
defendants acted with “deliberate indifference.” See Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (to establish a failure-
to-protect claim, the inmate must establish that the defendants
acted with deliberate indifference to his need for protection). At
best, Keyes has established negligence, which cannot form the basis
of a 42 U.S.C. § 1983 claim. See Oliver v. Collins, 914 F.2d 56,
60 (5th Cir. 1990). We therefore affirm the dismissal of Keyes’s
federal claim.
No. 01-60355
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The district court furthermore did not plainly err in
dismissing Keyes’s negligence-based state-law claims. See Douglass
v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996)
(en banc) (applying plain-error review where no objection is raised
to the magistrate judge’s report). Keyes cannot establish that his
substantial rights were affected because MISS. CODE ANN. § 11-46-
9(1)(m) (Supp. 2001) exempts governmental employees acting within
the course and scope of their employment from liability where the
claimant was an inmate at the time the claim arose. The dismissal
was therefore not plainly erroneous.
AFFIRMED; motion to appoint counsel is DENIED.