Christopher Torres v. Brad Livingston

Case: 19-40470 Document: 00515538555 Page: 1 Date Filed: 08/24/2020

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
August 24, 2020
No. 19-40470 Lyle W. Cayce
Clerk

Christopher Bryan Torres,

Plaintiff—Appellant,

versus

Brad Livingston; William Stephens; Kelvin Scott;
Edgar Baker, Jr.; Todd Funai; Frances Sims;
Jonathan Endsley,

Defendants—Appellees.

Appeal from the United States District Court
for the Eastern District of Texas
No. 6:17-CV-196

Before Smith, Willett, and Duncan, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Christopher Torres sued a correctional officer and several staff
members and administrators per 42 U.S.C. § 1983 (and state tort law) for
allegedly failing to protect him from an attack by another inmate in violation
of the Eighth Amendment. The defendants successfully moved to dismiss
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
The district court denied Torres’s motion to alter or amend the judgment
per Federal Rule of Civil Procedure 59(e). We affirm.
Case: 19-40470 Document: 00515538555 Page: 2 Date Filed: 08/24/2020

No. 19-40470

I.
Torres worked as an inmate janitor in an administrative segregation
unit. During mealtimes in that unit, the floor officer—in this case, Jonathan
Endsley—opens a row of seven inmates’ food tray slots in quick succession.
Once the slots are open, the inmate janitor delivers each inmate a food tray.
Inmates often request that officers pass through miscellaneous items, such as
books, newspapers, and magazines. Usually, the officer directs an inmate
janitor to fulfill those requests. After the food trays are distributed, the offi-
cer closes the slots.
While Endsley and Torres were delivering meals, Angel Sanchez, one
of the inmates, requested that Endsley retrieve pictures from the floor out-
side his cell. Endsley directed Torres to pick up the photos. Torres complied
willingly, noting that Sanchez “appeared harmless and asked in the right
tone.” When Torres reached to grab the pictures off the ground, however,
Sanchez stabbed him on the right side of his neck. Torres claims that, as a
result, he has breathing, speech, eating, and drinking problems, continually
has to clear his throat, has a persistent cough, and gets headaches. He alleges
that a neurologist has said that his medical complications are “lifelong” and
“irreparable.”
Torres contends that the district court erred in dismissing his § 1983
claims. 1 We review the 12(b)(6) dismissal de novo. Jackson v. City of Hearne,
959 F.3d 194, 200 (5th Cir. 2020). “To plead a constitutional claim under
§ 1983, [Torres] must allege that a state actor violated a constitutional right.”
Id.

A.
Torres avers that Endsley’s alleged failure to protect his health and

1
Torres does not expressly challenge the dismissal without prejudice of his pen-
dent state-law claims.

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No. 19-40470

safety violated the Eighth Amendment. “The Supreme Court has held that
the treatment a prisoner receives in prison and the conditions under which
he is confined are subject to scrutiny under the Eighth Amendment.” Cantu
v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). Accordingly, “prison officials
have a duty to protect prisoners from violence at the hands of other pris-
oners.” Id. A prison official may be held liable under the Eighth Amendment
only if he “ha[s] a sufficiently culpable state of mind, which, in prison-
conditions cases, is one of ‘deliberate indifference’ to inmate health or
safety.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
“Deliberate indifference is an extremely high standard to meet. A
prison official displays deliberate indifference only if he (1) knows that in-
mates face a substantial risk of serious bodily harm and (2) disregards that
risk by failing to take reasonable measures to abate it.” Taylor v. Stevens,
946 F.3d 211, 221 (5th Cir. 2019). “Deliberate indifference cannot be in-
ferred merely from a negligent or even a grossly negligent response to a sub-
stantial risk of serious harm.” Williams v. Banks, 956 F.3d 808, 811 (5th Cir.
2020) (brackets omitted).
Torres does not offer any facts suggesting that Endsley knew of and
disregarded a substantial risk to his health and safety. By all accounts, Ends-
ley was unaware that Torres was in danger, and Torres does not allege that
there was anything that would have caused Endsley to foresee that Sanchez
would assault him. In fact, Torres remarked that Sanchez “appeared harm-
less and asked in the right tone” to pick up the pictures. Although Torres
alleges that inmates in administrative segregation have weapons and a history
of attacking people, he provides no specific examples, nor does he point to
any other case in which that was alleged. In sum, Torres failed to allege that
Endsley was negligent, much less that he consciously disregarded any risk of

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No. 19-40470

serious harm. 2

B.
Torres also appeals the denial of his Rule 59(e) motion, which we
review for abuse of discretion. Trevino v. City of Fort Worth, 944 F.3d 567,
570 (5th Cir. 2019) (per curiam). “Under Rule 59(e), amending a judgment
is appropriate (1) where there has been an intervening change in the control-
ling law; (2) where the movant presents newly discovered evidence that was
previously unavailable; or (3) to correct a manifest error of law or fact.”
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (per cur-
iam). “A motion to reconsider based on an alleged discovery of new evi-
dence should be granted only if (1) the facts discovered are of such a nature
that they would probably change the outcome; (2) the facts alleged are actu-
ally newly discovered and could not have been discovered earlier by proper
diligence; and (3) the facts are not merely cumulative or impeaching.” Fer-
raro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 534 (5th Cir. 2015).
Torres moved to alter or amend the judgment based on the affidavit
of a fellow inmate who claimed to have witnessed at least one food-slot attack
a week, and often more than one a day, over the past fifteen years. Torres
contended that, in light of the history of inmate food-slot attacks, the court
should have concluded that the defendants were subjectively aware of the risk
to Torres but failed to take reasonable measures. The court did not abuse its
discretion in denying that motion. It reasonably found that the inmate’s
claim to have witnessed roughly a thousand food-slot assaults was not credi-

2
Because Torres does not allege facts that amount to a constitutional violation, his
claims of failure to train or supervise, against the other defendants, also necessarily fail. See
Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013) (“All of [the plaintiff’s] inadequate
supervision, failure to train, and policy, practice, or custom claims fail without an under-
lying constitutional violation.”).

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No. 19-40470

ble and that even if it was, it did not demonstrate that the defendants were
aware of a specific danger to Torres. All pending motions are denied as moot.
AFFIRMED.

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