UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-41288
_______________________
DAVID CROSS,
Plaintiff-Appellee,
versus
JAMES A. COLLINS, etc., et al.,
Defendants,
TOMMY CROW; THOMAS, Major; R. LOTT, Officer; R. JORDAN, Officer;
CRAIG PLAYER, Lieutenant,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-94-CV-174)
_________________________________________________________________
April 2, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Warden Crow, Major Thomas, Lt. Player, and Officers Lott
and Jordan appeal the magistrate judge’s denial of their motion for
summary judgment on the basis of qualified immunity from David
Cross’s claim of a violation of the Eighth Amendment for failure to
protect him from an assault by other inmates which occurred on
*
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this opinion should not be published and is not precedent except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.
April 17, 1993. Because the record contradicts the magistrate
judge’s finding that genuine, material fact issues exist concerning
these officials’ knowledge of the risk posed to Cross, we reverse.1
To establish a failure-to-protect claim, an inmate 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.” 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)). A prison
official acts with deliberate indifference “only if he knows that
inmates face a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it.” Farmer,
511 U.S. at 847. The relevant question in this case, which we
particularly explored at oral argument as well as with a close
review of the record, is the amount of knowledge, if any, that the
prison officials had concerning a substantial risk of serious harm
to Cross.2
Cross was incarcerated in TDCJ-ID in March 1993 for
robbery and met with an inmate classification committee, including
1
Cross, properly, does not contest our appellate jurisdiction
to determine whether, as a matter of law, appellants were entitled
to summary judgment on qualified immunity. Behrens v. Pelletier,
516 U.S. 299, 313 (1996); Colston v. Barnhart, 130 F.3d 96, 98 (5th
Cir. 1997).
2
The magistrate judge correctly ruled that Cross has no
constitutional entitlement to a particular custody classification,
and Cross has not appealed that ruling.
Warden Crow, on April 9. Despite his record of prior convictions,
including one for murder, the Committee placed him in medium
custody, a less restrictive classification than had initially been
recommended.
On April 13, Cross sent an I-60 form to Ms. Fulton and to
Warden Price, neither of whom are appellants, stating that he was
scared of medium custody, was homosexual, and wanted to be placed
in a “protection/homosexual tank.” There is no other evidence that
Cross informed any prison officials or that the inmates knew he was
homosexual. On April 17, Cross was assaulted by inmates chanting
anti-white phrases. After being treated for the injuries, he asked
and was immediately transferred to a protected environment and then
to another prison unit.
No admissible evidence exists of Warden Crow’s knowledge
of a substantial risk of harm to Cross. Warden Crow’s affidavit,
submitted in support of the defendants’ motion for summary
judgment, asserted that he was not “aware of any known danger” to
Cross. His only involvement was that he sat on the Classification
Committee which recommended that Cross be placed in medium custody.
Cross confirmed in his deposition that his only conversation with
Crow occurred at the classification hearing. Cross failed to
produce any facts in response to the summary judgment motion which
demonstrate that Warden Crow received the I-60, was otherwise
informed of Cross’s concern that he might be attacked because he
was homosexual, or was aware of any other “facts from which the
inference could be drawn that a substantial risk of serious harm”
3
to Cross existed. See Farmer, 511 U.S. at 837. Despite the
magistrate judge’s finding that Cross’s allegations created an
issue of material fact that precluded summary judgment, the summary
judgment record reveals no such factual dispute in relation to
Warden Crow’s knowledge.
Cross’s deposition testimony also confirmed that he had
no conversations with Thomas, Lott, Jordan, or Player before the
April 17 incident regarding any threats that he had received.
While Cross asserted in his affidavit that two guards were not at
their posts during the assault and that Major Thomas was in charge
at the time and asked Cross after the incident where the tank
bosses were, his affidavit does not mention Player, Lott, or Jordan
by name. As with Warden Crow, Cross failed to produce any facts in
response to the summary judgment motion which demonstrate that
Thomas, Player, Lott, or Jordan were aware of “facts from which the
inference could be drawn that a substantial risk of serious harm”
to Cross existed. Farmer, 511 U.S. at 837.
According to the record, the only persons Cross put on
notice of any concern he had for his safety in medium custody were
Warden Price and Ms. Fulton. Warden Price was dismissed without
objection from Cross, and Cross did not name Ms. Fulton as a
defendant. Any knowledge of a risk of harm by Price and Fulton is
not attributable to the other defendants.
Because Cross failed to meet his burden of producing
adequate summary judgment evidence, the judgment of the magistrate
4
judge is REVERSED and judgment is RENDERED granting the motion for
summary judgment.
REVERSED and RENDERED.
5