United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 14, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51238
Summary Calendar
LARRY KEELE,
Plaintiff-Counter
Defendant-Appellant,
versus
FRANK GUAJARDO, III
Defendant-Counter
Claimant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-176
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Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Larry Keele, Texas prisoner # 1077576, appeals from the
district court’s grant of summary judgment for Frank Guajardo,
a detention officer at the Bexar County Adult Detention Center
(BCADC), on the ground of qualified immunity. Keele filed a
42 U.S.C. § 1983 civil rights complaint against Guajardo alleging
that Guajardo informed another inmate of Keele’s incarceration
*
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that this opinion should not be published and is not precedent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. 02-51238
-2-
crimes and unlocked Keele’s cell door in order for the inmate
to assault Keele.
This court reviews a grant of summary judgment de novo.
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999). The facts and any inferences to be drawn
are viewed in the light most favorable to the nonmovant. Id.
“Summary judgment is properly granted if ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Id.;
FED. R. CIV. P. 56(c).
It is unclear in the record whether Keele was a pretrial
detainee or a convicted prisoner at the time of the alleged
constitutional violation in the instant case. However, as in
this case, when a claim is based on the “episodic acts or
omissions” of jail officials, the standard of subjective
deliberate indifference is applicable. See Hare v. City of
Corinth, 74 F.3d 633, 643, 650 (5th Cir. 1996)(en banc).
Official capacity
Keele’s claim against Guajardo in his official capacity is
treated as a claim against Bexar County. Brooks v. George
County, Miss., 77 F.3d 834, 841 (5th Cir.), withdrawn and
superceded on other grounds, 84 F.3d 157 (5th Cir. 1996). A
governmental entity can be held liable under § 1983 only if
No. 02-51238
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official policy or custom caused the deprivation of a
constitutional right. Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978).
Keele has failed to establish that it was the policy or
custom of the BCADC to incite inmate assaults. At best, Keele
alleges an isolated incident, not a widespread custom of the
BCADC to support his claim of official liability. See Fields v.
City of Houston, 922 F.2d 1183, 1191-92 (5th Cir. 1191-92).
Accordingly, the district court’s grant of summary judgment for
Guajardo in his official capacity is affirmed.
Individual capacity
The district court characterized the nature of Keele’s
complaint as a failure-to-protect from another inmate claim.
However, the allegations contained in Keele’s complaint and
appellate brief fairly raise a more direct claim of cruel and
unusual punishment at the hands of Guajardo which we address
herein.
The first inquiry in examining a defense of qualified
immunity asserted in a motion for summary judgment is to
determine whether the plaintiff has alleged “the violation of a
clearly established constitutional right.” Siegert v. Gilley,
500 U.S. 226, 231 (1991). The second step is to decide whether
the defendant’s conduct was objectively reasonable in light of
the legal rules clearly established at the time of the incident.
Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). Because
No. 02-51238
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Keele has alleged episodic acts and omissions committed by
Guajardo rather than a widespread custom at the BCADC, his claim
falls under the deliberate indifference standard regardless of
his incarceration status. See Hare, 74 F.3d at 643, 650. A
showing of deliberate indifference requires that the official
have a subjective knowledge of the risk of harm. Wagner v. Bay
City, Tex., 227 F.3d 316, 324 (5th Cir. 2000).
Keele’s allegations raise a genuine issue of material fact
over whether Guajardo’s actions constituted cruel and unusual
punishment. Keele’s detailed account of the incident in his
complaint as well as a supporting affidavit from another inmate
raise a material fact issue over whether Guajardo himself
deliberately subjected Keele to cruel and unusual punishment.
Guajardo’s summary judgment evidence in the form of an incident
report indicating that he believed there was a “possibility” that
one of the cell doors left unsecured by the lunch relief officer
was Keele’s does not directly refute Keele’s sworn assertions in
his complaint regarding Guajardo’s involvement. Accordingly, the
district court erred in granting summary judgment for Guajardo in
his individual capacity. The judgment of the district court is
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
Keele v. Guajardo
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-08-14
Citations: 71 F. App'x 369
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