IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41029
WILLIE MURRAY; ET AL,
Plaintiffs,
WILLIE MURRAY,
Plaintiff-Appellant,
versus
TIM WEST; CHARLES R LANGSTON;
SONIE MANGUM; KARL HARRIMAN,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. G-94-CV-496
March 29, 1999
Before HIGGINBOTHAM, JONES, AND WIENER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:*
The appellant, Willie Murray, is one of four asthmatic
prisoners who filed a 42 U.S.C. § 1983 complaint against the Texas
Department of Criminal Justice (TDCJ) and four individual prison
officials, including Building Major Charles Langston. The district
court concluded that all four defendants enjoyed qualified immunity
*
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this opinion should not be published and is not precedent except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.
and entered judgment against Murray and the other plaintiffs. We
affirm.
Murray alleged that Langston acted with deliberate
indifference to his health needs by assigning him to work outside,
when a medical doctor at the prison had specified that Murray was
not to be exposed to environmental pollutants. Langston swore in
an affidavit that Murray was placed on a special medical squad
where prison officials had access to the limitations specified in
workers’ medical records and prisoners received surgical face masks
to reduce exposure to environmental pollutants. Murray does not
disagree. Despite this precaution, however, Murray did have an
asthmatic attack, and his doctor ordered that he no longer work
outside at all. Murray was initially disciplined for refusing to
work, but this was overturned in an administrative appeal on the
basis that the work assigned him was inconsistent with his medical
restrictions.
The only contested issue of fact is whether Langston discussed
the reassignment with Murray’s physician before forcing Murray to
work outside over his objection. Langston averred that he
discussed the reassignments with “medical personnel” who informed
him that “inmates with respiratory problems could work outside,” as
long as an inmate’s ability to work outside was evaluated on a
case-by-case basis. Murray contends that Langston did not in fact
discuss the issue with a doctor, but rather only with defendant
prison official Sonie Mangum. This contention is buttressed by the
response to a letter he wrote a medical doctor at the prison. The
2
letter asked whether the doctor had cleared him to work outside,
and the response indicated that the only evaluation consisted of
the work restrictions that the doctor had placed six months before.
Prison officials violate the constitutional proscription
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs,
constituting an unnecessary and wanton infliction of pain. See
Wilson v. Seiter, 501 U.S. 294 (1991). The facts underlying a
claim of deliberate indifference must clearly evince the medical
need in question and the alleged official dereliction. See Johnson
v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). For liability to
attach, the official must not only know of facts from which an
inference could be drawn that a substantial risk of serious harm
exists, but must in fact draw the inference. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
Though a genuine question exists whether Langston consulted
medical doctors, Murray has offered no evidence that Langston knew
a substantial risk of harm existed, and he has thus not shown that
this question is material. A negligent assignment to work that is
not cruel and unusual per se is not unconstitutional. See Jackson
v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989). Perhaps Langston was
negligent in not consulting a medical doctor about Murray, but
there is no evidence other than Murray’s conclusory allegation that
Langston believed that a substantial risk of harm existed. Indeed,
Langston’s adoption of precautions suggests that he at least
believed that any risk could be minimized. Even Murray’s pleadings
3
report that Langston indicated that work outside would be attempted
on an experimental basis, to determine under controlled conditions
whether the surgical mask would provide adequate protection.
Langston is thus entitled to qualified immunity. A fortiori,
so are the other defendants, whose involvement was no greater than
Langston’s. Also, we reject Murray’s apparently nonsensical
argument that the district court and the defendants changed the
nature of his claim. See Brinkmann v. Abner, 813 F.2d 744, 748
(5th Cir. 1987).
AFFIRMED.
4