REVISED, February 2, 1998
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-60415
_____________________
JIMMY NEWTON,
Plaintiff-Appellee/Cross-Appellant,
versus
LEE ROY BLACK, ET AL.,
Defendants,
JAMES BREWER,
Defendant-Appellant/Cross-Appellee,
TOMMY ROSS,
Defendant/Cross-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
January 13, 1998
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
With regard to this action for 42 U.S.C. § 1983 and state law
claims, in which Jimmy Newton, a state prisoner, alleged that he
was beaten by another inmate as a result of, inter alia, the
negligence of Lieutenant James Brewer, a prison official, the
primary issue at hand is whether, under Mississippi law, Lieutenant
Brewer had a ministerial duty to report a threat against Newton and
is, therefore, not entitled to qualified immunity. Lieutenant
Brewer appeals the $10,000 judgment for Newton on his state-law
negligence claim, maintaining that he is entitled to qualified
immunity; Newton cross-appeals the adequacy of those damages and
the dismissal of his Eighth Amendment failure-to-protect claim.
Concluding that Lieutenant Brewer is entitled to qualified immunity
under Mississippi law, and that the district court properly
dismissed Newton’s other claims, we AFFIRM IN PART, and REVERSE and
RENDER IN PART.
I.
Newton’s pro se and in forma pauperis civil rights complaint,
filed in mid-1991 against various Mississippi State Penitentiary
officials, including Lieutenant Brewer, pursuant to § 1983 and
state law, alleged that the defendants’ deliberate indifference,
failure to provide adequate protection, and gross negligence
resulted in his being beaten by an unidentified inmate. In an
amended complaint, he alleged that he had reported to Lieutenant
Brewer that he had been threatened by inmate Melvin Walls. After
conducting a Spears hearing, see Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985), the magistrate judge determined that Newton had
failed to show that the defendants had acted with deliberate
indifference, and recommended that the complaint be dismissed as
frivolous, pursuant to 28 U.S.C. § 1915(d) (now § 1915(e)).
The district court rejected that recommendation, because the
magistrate judge had failed to consider Newton’s amended complaint,
including the allegation that he had relayed Walls’ threats to at
- 2 -
least one of the defendants. Therefore, the case was referred to
the magistrate judge for further proceedings.
In a second amended complaint, Newton was represented by
counsel. Named defendants were Steve Puckett (Superintendent of
the Mississippi State Penitentiary), Captain Tommy Ross, and
Lieutenant Brewer; and Newton added a claim for denial of adequate
medical treatment.
At an evidentiary hearing before the magistrate judge, Newton
testified that, on 6 March 1991, between 7:00 and 8:00 a.m., an
inmate (whom he could not then identify by name, but who was later
identified as Walls during Newton’s brief meeting with Lieutenant
Brewer) threatened Newton because he would not give Walls a cup of
coffee; that, at around 10:00 a.m., he reported the threat to
Lieutenant Brewer and told the Lieutenant that he wanted either
Walls or himself transferred; that, around 10:30 a.m., while he
(Newton) was talking to Lieutenant Brewer, Walls walked into the
Lieutenant’s office and told the Lieutenant that he would hurt
Newton if Lieutenant Brewer did not return Walls’ property that had
been confiscated; that Lieutenant Brewer had been more concerned
about Newton finishing his cleaning duties than about Walls’
threat; and that, at approximately 11:00 a.m., while he (Newton)
was watching television, Walls assaulted him, striking him in the
mouth and face with a broom handle.
When asked what Lieutenant Brewer could have done to prevent
the assault, Newton responded that the officials should have known
that Walls was a threat to inmates housed in his unit; and that
- 3 -
Lieutenant Brewer could have looked into the situation further and
transferred him or Walls to another unit.
On cross-examination, Newton testified that, after Lieutenant
Brewer talked to Walls, the Lieutenant ordered Walls to pack his
belongings, because Lieutenant Brewer was going to transfer him;
but that, prior to the assault, after Walls had packed his
belongings, another Officer told him to unpack.
Walls testified that his dispute with Newton sprang from
Walls’ walking across the floor Newton was mopping on the morning
of the incident (as noted, Newton said the dispute was instead over
coffee); that he (Walls) told Lieutenant Brewer that he wanted to
be transferred and, if not, “somebody was going to get hurt”; and
that he was angry with Lieutenant Brewer because the guards had
confiscated an earring from him (Walls). According to Walls, when
a prisoner threatens someone “[t]hey are supposed to move one ...
of the inmates to a different section”. On cross-examination,
Walls denied having been in Lieutenant Brewer’s office with Newton
that morning.
Captain Ross testified that Lieutenant Brewer was working
under his supervision on the day of the incident; that, also pre-
assault, Lieutenant Brewer did not report any incident involving
Walls and Newton; that, also prior to the assault, he was aware
that Walls was a “trouble maker”, but not that he was violent; and
that, with respect to the incident, everything was done that could
have been done, because there is no way to prevent a spur-of-the-
moment assault.
- 4 -
Captain Ross admitted, however, that the attack would have
been prevented had Walls been moved pre-assault; and that, if Walls
had told him he was going to hurt another inmate, he would have put
him in the holding cell. Regarding such Department of Corrections
policy, Captain Ross testified as follows:
Q Now, you would agree with me that the
policy of the [Mississippi Department of
Corrections] on March 6th, 1991 [the day of
the incident], if an inmate advised an officer
that he was going to hurt another inmate, that
either the inmate making the threat or the
inmate being threatened should be removed,
correct?
A Even the most inexperienced staff member
at Parchman would immediately take action.
Q Should take action, correct?
A They would take action.
Q And if an officer knew of a threat being
made, he should also file [a rules violation
report], is that correct, against the inmate
making the threat?
A If there was evidence that the threat was
made, he would do the incident report and the
[rules violation report] and isolate,
whichever one.
Q You remember telling me in your
deposition that an investigation into a threat
should be started as soon as the threat is
made or is made known to the officer?
A Immediately.
Q No time should be wasted?
A No time wasted.
Q Because if any time is wasted, it could
result in danger to the inmate or another
officer, correct?
A Yes, sir.
- 5 -
Q And if ... an officer did not immediately
start an investigation and knew that a threat
was made, he would be derelict in his duties,
correct?
A If it was a serious threat and it was a
threat upon another inmate I would say he
would be derelict in his duty; yes, sir.
(Emphasis added.)
Lieutenant Brewer, the administrator of the unit where Newton
and Walls were housed on the day of the incident, testified that,
on that day, he confiscated an earring from Walls at around 7:45
a.m.; and that, at approximately 8:30 a.m., Walls told him that he
wanted to be moved if he could not have his earring back and “would
be a problem” if he was not moved. Lieutenant Brewer testified
that he did not understand Walls to be making a threat, but merely
talking “in the heat of anger”. According to Lieutenant Brewer, he
told Walls to pack his bag, and Walls did so; he talked to Walls
again, and explained that Walls would lose the opportunity to get
an education if he moved to another unit; and Walls understood and
was willing to stay.
Lieutenant Brewer also testified that Walls did not mention
Newton’s name; and that Newton did not tell him that Walls had
threatened him. Lieutenant Brewer testified further that, prior to
the assault, he did not know about Walls’ reputation for violence;
but that he considered all offenders dangerous and violent.
Regarding Department of Corrections policy when one inmate
threatens another inmate, Lieutenant Brewer testified as follows:
Q ... the policy concerning when an inmate
threatens another inmate?
- 6 -
A Right.
Q Or an officer?
A Right.
Q Is to transfer one of them?
A Right.
....
Q Okay. So you called [sic] somebody and
say, I have got a prisoner who has made a
threat and I need to transfer that prisoner or
put the other one in protective custody,
right?
A As I stated, I never heard Inmate Walls
threaten anyone.
....
Q I am asking you what the [Mississippi
Department of Corrections] policy is when you
have a problem with an inmate, he threatens
somebody? What do you do with that inmate?
You transfer him, right, or put the other
one in protective custody, right?
A The only thing that I can do is request
that he be transferred. I can’t transfer
him.... [I]f ... one makes a threat, I will
call my supervisor.
Q Okay. And tell them that prisoner made a
threat and you need to transfer one?
A If he threatens another inmate I will
call [my supervisor] and he will recommend the
next step that I take.
(Emphasis added.) But, Lieutenant Brewer testified that he had no
reason to call his supervisor or request that Walls be transferred,
because he was not aware of Walls’ threat against Newton and did
not feel that Walls was a threat.
- 7 -
Steve Puckett, Superintendent of the Mississippi State
Penitentiary on the day of the incident, testified as follows
regarding the Department of Corrections policy on inmate threats:
Q What was the policy or procedure as it
pertained to the transfer of inmates who have
made threats of violence against other inmates
or against a guard?
A ... if an inmate was threatened and he
reported it, they would be separated. The
inmate being threatened could possibly be
placed on protective custody through
classification, or he could have red tagged
the inmate who threatened him where they would
not be housed in the same housing unit.
Q So am I correct in stating that when an inmate makes
a threat against another inmate and an officer is advised
of that, that officer should take immediate action?
A Yes, sir.
Q To transfer the inmate making the threat?
A Yes, sir. The officer should notify a
supervisor what is going on and steps should
be taken to separate the inmates; yes, sir.
Q An officer who failed to take immediate
action to separate an inmate who has made a
threat against another inmate would be
derelict in his duty, correct?
A Yes, sir, yes, sir.
Q And the policy or procedure is made up
and instigated by the [Mississippi Department
of Corrections] for the safety of the
prisoners, as well as the officers, correct?
A Yes, sir.
....
Q And an officer who is aware that an
inmate has threatened another prisoner and
allows him near that prisoner would also be
derelict in his duty, correct?
A Yes, sir, I would say so.
- 8 -
(Emphasis added.)
Following the hearing, the magistrate judge concluded that
Newton’s § 1983 claims for deliberate indifference and failure to
provide adequate medical care were without merit. He concluded,
however, that Captain Ross and Lieutenant Brewer had acted
negligently in failing to protect Newton from Walls’ threats, and
recommended a $10,000 judgment against them on that state law
claim.
The district court adopted the dismissal-recommendation
respecting the § 1983 claims. On the other hand, for the
negligence claim, the court held (1) that Captain Ross was entitled
to qualified immunity under Mississippi law because there was no
evidence that he knew of the threat; but (2) that, because
Lieutenant Brewer had a mandatory obligation to inform his
supervisor of Walls’ threat, which the court held to be a
ministerial function, and failed to do so, qualified immunity did
not shield him from liability. Accordingly, a $10,000 judgment was
awarded Newton on his negligence claim against Lieutenant Brewer;
the other claims were dismissed.
II.
Lieutenant Brewer challenges the denial of qualified immunity;
Newton, the dismissal of his § 1983 failure-to-protect claim and
the adequacy of the negligence claim damages. (Newton does not
raise the inadequate medical care claim.) It goes without saying
that we review the district court’s factual findings for clear
error and its legal conclusions, including on state law issues, de
- 9 -
novo. FED. R. CIV. P. 52(a); Salve Regina College v. Russell, 499
U.S. 225, 238 (1991); e.g., Johnson v. Gambrinus Co./Spoetzl
Brewery, 116 F.3d 1052, 1056 (5th Cir. 1997).
A.
In claiming an erroneous application of Mississippi qualified-
immunity law, Lieutenant Brewer asserts that the evidence did not
show that he had a duty positively imposed by law (a ministerial
duty) to report a threat of violence by an inmate; and that,
because he was instead performing a discretionary function, he is
entitled to such immunity.
Under Mississippi law, its officials sued for damages in a
civil action enjoy qualified immunity from tort liability when
performing discretionary official functions. E.g., Evans v.
Trader, 614 So. 2d 955, 957 (Miss. 1993); see also Webb v. Jackson,
583 So. 2d 946, 949-50 (Miss. 1991). However,
a governmental official has no immunity to a
civil action for damages if his breach of a
legal duty causes injury and (1) that duty is
ministerial in nature, or (2) that duty
involves the use of discretion and the
governmental actor greatly or substantially
exceeds his authority and in the course
thereof causes harm, or (3) the governmental
actor commits an intentional tort. Beyond
that, a government official has no immunity
when sued upon a tort that has nothing to do
with his official position or decision-making
function and has been committed outside the
course and scope of his office.
Grantham v. Mississippi Department of Corrections, 522 So. 2d 219,
225 (Miss. 1988) (emphasis on “or” in original; remaining emphasis
added).
- 10 -
The Mississippi Supreme Court has stated that “[t]he most
important criterion” in determining whether an act is ministerial
is whether “the duty is one which has been positively imposed by
law and its performance required at a time and in a manner or upon
conditions which are specifically designated, the duty to perform
under the conditions specified not being dependent upon the
officer’s judgment or discretion.” Poyner v. Gilmore, 158 So. 922,
923 (Miss. 1935) (internal quotation marks omitted) (emphasis
added); see also Mohundro v. Alcorn County, 675 So. 2d 848, 853
(Miss. 1996); Sorey v. Kellett, 849 F.2d 960, 963 (5th Cir. 1988).
Along this line, a discretionary duty or function involves
“personal deliberation, decision and judgment”. Davis v. Little,
362 So. 2d 642, 643 (Miss. 1978) (internal quotation marks and
citation omitted); see also State for Use & Benefit of Brazeale v.
Lewis, 498 So. 2d 321, 322 (Miss. 1986) (emphasis added) (qualified
immunity for the discretionary acts of public officials has evolved
“[i]n order to allow [them] to participate freely and without fear
of retroactive liability in risk-taking situations requiring the
exercise of sound judgment”); Poyner v. Gilmore, 158 So. at 923
(duty is discretionary if it requires the official to use personal
judgment and discretion in the performance of that duty); Glover v.
Donnell, 878 F. Supp. 898, 901 (S.D. Miss. 1995) (emphasis added)
(“it is precisely this type of official act, one in which the
official’s judgment is implicated, which the qualified immunity for
discretionary acts is meant to protect”).
- 11 -
In sum, and as outlined above, because Newton’s negligence
claim is not for an intentional tort, Lieutenant Brewer is entitled
to qualified immunity (1) unless his duty to report Walls’ threat
was a ministerial duty; or (2) if the duty was instead
discretionary, he substantially exceeded his authority. See Webb,
583 So. 2d at 950.
1.
The district court found that Newton had reported to
Lieutenant Brewer that Walls had threatened Newton with violence;
and concluded that, as a result, the Lieutenant had a “mandatory,
nondiscretionary obligation to inform his supervisor of Walls’
threatened attack”. Lieutenant Brewer does not challenge the
finding that Newton reported Walls’ threat to him (Lieutenant
Brewer). Instead, he contends that the testimony regarding
Department of Corrections policy, in the absence of any evidence of
a written policy or statutory authority, is insufficient to
establish a duty “positively imposed by law”. He contends further
that, even assuming that the law positively imposed a duty, that
duty was triggered only by serious threats, with his having
discretion to decide which threats were serious enough to warrant
further action.
Neither the district court nor Newton cited any Mississippi
authority for the proposition that a mandatory duty “positively
imposed by law” can be established in the absence of any evidence
of a written policy or statutory or other authority. See State for
Use of Russell v. McRae, 152 So. 826, 827 (Miss. 1934) (court
- 12 -
relied upon statutes to conclude that, although determining
necessity for repairs was discretionary, supervisor’s acts of
tearing down and rebuilding bridge were done in capacity of a
statutory road commissioner engaged in performance of ministerial
duty); Poyner v. Gilmore, 158 So. at 923 (court relied upon statute
in finding that chancery clerk had mandatory duty to attach
certificate to claim presented for probate); Sykes v. Grantham, 567
So. 2d 200, 211 (Miss. 1990) (to determine whether parole board
members lost their qualified immunity by failing to perform
ministerial duties, court examined whether they complied with
statute setting forth their functions); McQueen v. Williams, 587
So. 2d 918, 922 (Miss. 1991) (noting that plaintiff “cited no
guideline or procedure—statutory or otherwise—to show that the
Sheriff’s decision-making in the performance of his duties involves
no discretion”); Coplin v. Francis, 631 So. 2d 752, 755 (Miss.
1994) (construction of county road bridges in accordance with
specifications mandated by statute for width and guard rails is
ministerial function); T.M. v. Noblitt, 650 So. 2d 1340, 1343-45
(Miss. 1995) (court relied upon statute in determining whether
public elementary school principal had a ministerial duty to report
child abuse); Mohundro, 675 So. 2d at 854 (because the minimum
standards for construction of culverts had been satisfied, there
was no breach of a ministerial duty).
The only cases found in which ministerial functions were not
required by statute are distinguishable, because the performance of
those functions required no exercise of decision-making in the
- 13 -
course of carrying out official duties. See Davis v. Little, 362
So. 2d at 644 (act of driving a county vehicle on county business
does not involve discretionary decision-making process); Barrett v.
Miller, 599 So. 2d 559, 567 (Miss. 1992) (although determining
probable cause for issuance of a warrant is a discretionary
function, execution of search warrant is a ministerial function);
Stokes v. Kemper County Board of Supervisors, 691 So. 2d 391, 394-
95 (Miss. 1997) (driving a vehicle is a ministerial act).
No doubt, the testimony establishes that there is some form of
Department of Corrections policy regarding inmate threats; but, the
exact parameters of that policy, as well as the precise duties of
a prison official who has knowledge of such a threat, are unclear.
For example, the duties described by the testimony included
starting an investigation, reporting the threat to a supervisor,
separating the involved inmates, and transferring one of the
inmates to another unit. Moreover, it is far from “positively
established” that the policy imposes such duties for any and all
threats, regardless of how serious the official believes them to
be.
Indeed, the testimony reflects otherwise. As quoted supra,
Lieutenant Brewer’s supervisor, Captain Ross, testified that an
officer would be derelict in his duty if he did not immediately
start an investigation after becoming aware of a “serious threat”.
(Emphasis added.) And, Lieutenant Brewer testified that, inmates
often say things on the spur of the moment, but without really
meaning anything, and that is why he talked to Walls; that, after
- 14 -
he talked to Walls, he did not perceive a threat to anyone; and
that he took no action, because he had no reason to feel that Walls
was going to attack Newton that day. There was no evidence of any
guidelines for assessment of the nature and seriousness of inmate
threats.
The Mississippi State Penitentiary is a dangerous place. As
noted by the Superintendent in his testimony, the facility at
Parchman is the maximum security facility for the Mississippi
Department of Corrections, with approximately 80 percent of its
approximate 6,000 inmates being “violent offenders”. Accordingly,
inmate threats there must be taken quite seriously. But,
concomitantly, threats are part of the penitentiary’s daily fare.
And such threats come in all forms and multiple variations and
situations. If certain, specific action must be taken by prison
officials as to every one of those threats, then, surely, it would
seem that the policy would be clearly and precisely stated in
writing. As noted, there is no evidence that it was at the time of
the incident.
In the light of this testimony, and especially in the light of
there being no evidence of a written policy or of case law,
statutory or other authority, the district court erred in
concluding that the policy imposed a ministerial duty on Lieutenant
Brewer to report Walls’ threat to Lieutenant Brewer’s supervisor,
regardless of whether Lieutenant Brewer thought the threat was
serious enough to justify such action. Restated, a duty to report
every threat was not “positively imposed by law”.
- 15 -
In this regard, in that the law did not positively impose a
duty to report every threat, an officer’s determination of whether
a threat was serious enough to warrant further, as well as
different types of, action involves the exercise of judgment and
is, therefore, discretionary. See Davis v. Little, 362 So. 2d at
643 (internal quotation marks and citation omitted) (acts that
require “personal deliberation, decision and judgment” are
discretionary); T.M., 650 So. 2d at 1343 (“A duty is discretionary
if it requires the official to use her own judgment and discretion
in the performance thereof”); id. at 1345 (determination of whether
there is “reasonable cause” to report suspected incident of child
abuse is discretionary; but once determination is made that
reasonable cause exists, official has no discretion not to report
it).
As it turns out, Lieutenant Brewer was mistaken in his
assessment of the seriousness of the threat; but, obviously, that
does not deprive him of qualified immunity for the exercise of his
discretion in making that assessment. See id. at 1343 (quoting
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (“There must
indeed be means of punishing public officers who have been truant
to their duties; but that is quite another matter from exposing
such as have been honestly mistaken to suit by anyone who has
suffered from their errors.”), cert. denied, 339 U.S. 949 (1950)).
2.
Therefore, concerning this discretionary duty, into play comes
the above-described second possible basis for no qualified
- 16 -
immunity: greatly exceeding authority. In that regard, Newton
does not contend, nor is there any evidence, that Lieutenant Brewer
“greatly or substantially exceed[ed]” this discretionary decision-
making authority in determining (albeit mistakenly) that Walls’
threat was not serious enough to warrant reporting it to his
supervisor. Grantham, 522 So. 2d at 225. Accordingly, Lieutenant
Brewer is entitled to qualified immunity.
B.
On cross-appeal, Newton presents two issues. Simply put, our
conclusion that Lieutenant Brewer is entitled to state-law
qualified immunity puts to rest Newton’s claim regarding the
adequacy of awarded damages as to the Lieutenant.
Remaining is only Newton’s constitutional failure-to-protect
claim. In that regard, he asserts that the defendants violated his
Eighth Amendment rights by failing to protect him from the
threatened attack by Walls.
Newton 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”. See
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). “In order to
act with deliberate indifference, ‘the official must both be aware
of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.’”
Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)) (emphasis
added). Whether a prison official had the requisite knowledge of
a substantial risk is a question of fact. Id.
- 17 -
Along this line, the district court found that Lieutenant
Brewer did not suspect that the risk of harm to Newton was
substantial. In that regard, it noted the Lieutenant’s testimony
that Walls “calmed down after [the Lieutenant and Walls] discussed
the ramifications of [Walls] causing problems in [the] Unit". The
court also found that Lieutenant Brewer had “responded to Walls’
anger and did not believe that Newton was in danger.” Newton falls
far short of demonstrating that those findings were clearly
erroneous.
III.
For the foregoing reasons, that portion of the judgment
dismissing Newton’s § 1983 claims and his state law negligence
claim as to all defendants but Lieutenant Brewer is AFFIRMED; and
that portion of the judgment granting relief against Lieutenant
Brewer on that negligence claim is REVERSED, with judgment RENDERED
in favor of Lieutenant Brewer.
AFFIRMED IN PART; REVERSED and RENDERED IN PART
- 18 -