United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11112
Summary Calendar
MICHAEL RAY ARMSTRONG,
Plaintiff-Appellant,
versus
KEITH PRICE; WILLIAM E. WALKER; HERMAN WESTON; FRANK
POHLMEIER, also known as NFN Palimier; TED MOORE;
ERIC GUERRO; MARY HOLLIGAN; RACQUEL HASKINS; DORA
SHIPP; BOBBY STUBBLEFIELD, Building Captain,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:02-CV-253
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Michael Ray Armstrong, a Texas prisoner (# 488799), appeals
the district court’s order granting the defendants-appellees’
motion for summary judgment, based on the qualified-immunity
doctrine, in this 42 U.S.C. § 1983 civil rights action, in which
Armstrong alleged that the defendants had violated his Eighth
Amendment rights by failing to protect from an assault by a
fellow inmate in April 2002. It is not disputed that the assault
left Armstrong with a fractured jaw and other injuries.
*
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that this opinion should not be published and is not precedent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. 02-11112
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In his pro se complaint, Armstrong, who is white, alleged
that, on four separate occasions from December 2001 to the end of
March 2002, he asked defendant prison officials to place him in
protective custody (PC) because of threats made by correctional
officers and black inmates, who allegedly believed that Armstrong
was jeopardizing inappropriate personal and business
relationships between the officers and inmates. The defendants
moved for summary judgment, arguing that they were entitled to
qualified immunity. The district court granted the motion,
adopting the magistrate judge’s recommendation as well as making
finding and conclusion of its own.
Armstrong has effectively abandoned claims against
defendants Captain Stubblefield and Wardens Walker and Price.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987); FED. R. APP. P. 28(a)(9).
We review de novo the grant a motion for summary judgment
predicated on qualified immunity. Cousin v. Small, 325 F.3d 627,
637 (5th Cir. 2003). Summary judgment is proper if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with any affidavits filed in support
of the motion, 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. FED. R. CIV. P. 56(c). The moving party
bears the burden of showing the district court that there is
an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
No. 02-11112
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Government officials performing discretionary functions are
protected from civil liability under the doctrine of qualified
immunity if their conduct violates no “clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Federal courts review claims of qualified immunity under
a two-step analysis. See Saucier v. Katz, 533 U.S. 194, 201
(2001). First, a court asks whether, “[t]aken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officers’ conduct violated a constitutional right?”
Id. “If the allegations do not establish the violation of a
constitutional right, the officer is entitled to qualified
immunity. . . . If the allegations make out a constitutional
violation, we must ask whether the right was clearly established
--that is, whether ‘it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.’”
Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (quoting
Saucier, 533 U.S. at 201).
The Eighth Amendment protects prisoners from cruel and
unusual punishment. See Hudson v. McMillian, 503 U.S. 1, 5
(1992). “‘[P]rison officials have a duty . . . to protect
prisoners from violence at the hands of other prisoners.’”
Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004) (quoting
Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)). To succeed on a
failure-to-protect claim, “‘the inmate must show that he is
incarcerated under conditions posing a substantial risk of
serious harm’ and that the prison officials acted with
No. 02-11112
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‘deliberate indifference’ to the inmate’s safety.” Id. (quoting
Farmer, 511 U.S. at 834). “An official is deliberately
indifferent when he ‘knows of and disregards an excessive risk to
inmate health or safety; 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, 511 U.S. at 837).
Armstrong has failed to demonstrate that the district court
erred in concluding that the defendants were entitled to
qualified immunity. He has alleged that defendants Holligan,
Haskins, and Shipp were classification officers who, as
custodians of his letters and complaints regarding threats, were
responsible for investigating his requests for protection.
Armstrong failed to show, however, that they, as supervisors,
were automatically charged with personal knowledge of the risks
Armstrong had written about or that they actually were required
to investigate those risks. See Evett v. DETNTFF, 330 F.3d 681,
689 (5th Cir. 2003).
In connection with the December 27, 2001, UCC hearing held
by defendants Pohlmeier, Guerrero,** and Shipp, Armstrong failed
to establish that, given the rather vague information he had
provided them, it would be clear to a reasonable officer that
such information presented a substantial risk of serious harm.
See Saucier, 533 U.S. at 201; Farmer, 511 U.S. at 834. Armstrong
**
Guerrero’s name is rendered, apparently erroneously, as
“Guerro” in the complaint’s caption.
No. 02-11112
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had made similar allegations earlier in December 2001, but at
that time he had explicitly denied that he was requesting PC.
With respect to Armstrong’s second request for PC in
February 2002, he did provide the names of several officials and
inmates who had either made or known about threats toward him,
but his specific allegations against defendants Moore and Haskins
were not sufficient to make clear that their failure to act in
those circumstances subjected Armstrong to a substantial risk of
serious harm. See Saucier, 533 U.S. at 201; Farmer, 511 U.S. at
834. Armstrong’s summary-judgment materials reflect that he told
Moore at that time that no officers had “actually or verbally
threatened his life.”
Armstrong has maintained that, in late February 2002, he
made a third request for PC, providing “5 more official names for
questioning.” The March 5, 2002, investigation form submitted by
Armstrong reflects that defendant Weston did refer these latest
allegations to subordinates, including defendant Guerrero, for
investigation. A March 8, 2002, inter-office communication from
Guerrero to a Major Curran reflected that Guerrero had
interviewed Armstrong and several correctional officials, that
Armstrong had asked Guerrero not to interview an inmate who knew
about threats against Armstrong, and that the officers had denied
Armstrong’s allegations. This evidence does not establish that
either defendant, Armstrong or Weston, knew of and disregarded an
excessive risk to inmate health or safety at that time. See
Farmer, 511 U.S. at 837.
No. 02-11112
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Finally, with respect to Armstrong’s fourth PC request, he
has alleged that in late March 2002, defendant Moore failed to
conduct interviews of officers and inmates who knew about threats
against him. The written materials submitted by Armstrong at
that time, however, contained no allegations that had not already
been investigated by correctional officials. Armstrong’s
summary-judgment materials reflected that Moore reported that, at
that time, Armstrong refused to give names of black offenders who
posed threats to him. Because Armstrong has failed to show that
it should have been clear to any of the defendants that his
conduct was unreasonable in the situation each defendant
confronted, see Saucier, 533 U.S. at 201, we affirm the district
court’s order granting summary judgment to the defendants.
Armstrong correctly contends that the amended-complaint
principles of FED. R. CIV. P. 15 should not preclude a district
court from considering evidentiary materials attached to a
plaintiff’s response to defendants’ original summary-judgment
motion, when the plaintiff has failed to re-attach those
materials to his later response to an amended summary-judgment
motion. The record, however, reflects that the court considered
all of Armstrong’s summary-judgment materials.
The district court did not abuse its discretion in failing
to allow Armstrong to conduct discovery in order to obtain prison
administrative policies. See King v. Dogan, 31 F.3d 344, 346
(5th Cir. 1994); Tarver v. City of Edna, 410 F.3d 745, 752 (5th
Cir. 2005).
AFFIRMED.