United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2006
Charles R. Fulbruge III
No. 05-41052 Clerk
ADAM LONGORIA,
Plaintiff-Appellee,
versus
STATE OF TEXAS, ET AL.,
Defendants,
DAVID HUDSON, Assistant Warden;
DONNA JOHNSON, Individually and in her official capacity;
RONALD STAFFORD; MICHAEL PEACOCK, Officer, Individually and in
his official capacity; JERRY ROGERS, Officer;
HERBERT FARR, Individually and in his official capacity;
PAUL STAGGS, Officer; LIEUTENANT ZELDA GLASS, Individually
and in her official capacity,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Texas
No. 5:02-CV-112
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
EDITH H. JONES, Chief Judge:
Inmate Longoria, who was stabbed by fellow inmates for
being a “snitch,” sued various Texas prison officials for
constitutional and state-law violations arising from the attack.
In this interlocutory appeal from denial of Defendants’ motion for
summary judgment based on qualified immunity, we REVERSE IN PART
AND DISMISS IN PART. The district court erred in failing to assess
the degree of participation of each prison official individually,
and most of them — Officers Farr, Glass, Peacock, Rogers, Stafford
and Staggs — were entitled to qualified immunity, as a matter of
law.
I. BACKGROUND
We recite the facts as depicted in appropriate summary
judgment evidence.
After midnight on May 27, 2000, Appellee Adam Longoria,
a prisoner at the Texas Department of Criminal Justice’s (“TDCJ”)
Telford Unit, was stabbed twenty-eight times by fellow inmates
David Peralez and George White.1 Due to their suspected membership
in the Texas Syndicate (“TS”) prison gang, Longoria, Peralez, and
White were housed near one another in a lockdown unit (or “pod”)
because of recent hostilities that had broken out between the TS
and a rival gang.
After inspecting the toilet and shower area for weapons,
Officers Farr and Staggs strip-searched inmates Peralez and White
and took them to the third-tier shower area. Shortly thereafter,
Officer Rogers removed Longoria from his cell in order to escort
him to a routine lockdown interview. Longoria claims he told
Rogers that Peralez and White were in the showers and wanted to
1
Longoria completed his term at Telford and was released.
He has subsequently reoffended and is now incarcerated at the
TDCJ’s McConnell facility in Beeville, Texas. All events
relevant to this appeal occurred during his incarceration at
Telford.
2
kill him. Rogers allegedly assured Longoria that if anything
happened he would be protected. Officer Rogers then handcuffed him
and removed him from the cell.
As Longoria and Officer Rogers walked along the corridor,
Peralez and White emerged from the showers armed with shanks and
began running toward them. Longoria fled. Although unarmed,2
Rogers initially attempted to stand between Longoria and his
attackers, but was pushed aside as they chased Longoria. Officers
Farr and Staggs, who were inspecting Peralez’s and White’s cells
for contraband, heard the commotion, were approached and threatened
by White, and ran away to alert other guards and obtain weapons and
tear gas.
Peralez and White chased Longoria through the now-sealed
pod,3 tackled him and began stabbing him in the chest and neck.
Longoria finally broke free and fled to the first-floor common area
where he collapsed and was met by arriving officers. He was
seriously injured.
Longoria was likely targeted by the TS because he had
become a jailhouse informant. On several occasions in the months
preceding the attack, Longoria had provided gang-related
2
Guidelines promulgated by the TDCJ at the time prohibited
officers assigned to lockdown duty from carrying weapons.
3
In case of a disturbance in the pod, the picket officer is
instructed to seal the unit.
3
information during meetings with investigators from the Security
Threat Group (“STG”) and the Internal Affairs Division (“IAD”).
Major Hudson4 instructed STG Officer Johnson to interview
Longoria on two occasions, March 15 and March 22, 2000, concerning
an attack on another gang member ordered by the TS. Longoria
admitted that he had been a TS prospect since his arrival at
Telford, but he no longer desired to be associated with the gang.
Longoria did not express any fear for his safety or request a life-
endangerment investigation during these interviews, but did request
to be removed from lockdown because he was no longer affiliated
with the TS. Officer Johnson, however, had obtained information
from the prison administration that Longoria had been a TS leader
at the Willacy Unit and had a history of manipulative and “slick”
behavior. Based on Officer Johnson’s reports, Major Hudson
discounted much of Longoria’s information and, because he was a TS
member, kept him on lockdown status.
A few weeks later, Longoria again contacted prison
officials and offered information about the murder of a TS member.
After briefing Officer Scott and IAD Officer Stafford, Longoria
again requested to be removed from lockdown, stating that he was
not a TS member and felt that his life would be endangered if other
inmates were to learn that he was meeting with prison officials.
4
At the time of the events pertinent to this appeal, David
Hudson was a major at the Telford Unit, a position that he held
since March 2000. On June 1, 2000, he was promoted to assistant
warden.
4
Major Hudson was then informed of the meeting by Officer Scott but
decided to take no action to rehouse Longoria.
In the days following his meeting with Scott and
Stafford, Longoria had made several additional written requests to
be removed from lockdown. In neither of his letters dated April 2
and May 225 did Longoria express any concern for his safety.
Longoria claims, however, that he sent at least two
additional letters sometime in early May to Major Hudson and
Officers Scott and Johnson in which he made life-endangerment
claims and stated that TS members knew of his meeting with Officers
Scott and Stafford and had ordered a revenge “hit” on him. Major
Hudson attested that neither of these letters were found in
Longoria’s casefile, nor could Hudson confirm that any prison
officials received these letters.
On May 26, 2000 — the day of the attack — Longoria
approached Sergeant Vann in the pod’s common area and informed her
that the TS was planning to murder him. Longoria requested a life-
endangerment investigation, immediate removal from lockdown, and
reassignment to protective housing. In response to Longoria’s
assertions, Vann telephoned STG Officer Johnson, who at the time of
the call was processing a large group of newly arrived inmates.
Johnson halted her intake interviews and told Vann that she would
5
Although Longoria claims he did not write the May 22
letter, it appears to bear his signature and handwriting, and it
denies he had any problems with TS members.
5
contact Officer Glass, a member of the Inmate Classification
Committee, to make a determination concerning the validity of
Longoria’s life-endangerment claim.
Officer Johnson then consulted with Officer Glass, who
recommended that since Longoria notified Sergeant Vann of his
claims, it was ultimately Vann’s responsibility to initiate a life-
endangerment investigation. Following Glass’s instructions,
Johnson told Vann to initiate an investigation if Vann determined
that one was necessary. Johnson then passed the telephone to
Officer Glass, who informed Vann to proceed with an investigation
if Longoria had a legitimate claim. Glass further explained to
Vann that, because neither Glass nor Johnson was authorized to
reassign Longoria to a new cell, Vann needed to contact Major Gray.
After unsuccessful attempts to locate Major Gray, Vann notified the
ranking security officer on duty, Captain Langley, of Longoria’s
claim and explained that Longoria was a TS member currently
relegated to lockdown status. Because of the minimal exposure to
other inmates that Longoria would have on lockdown status, Langley
determined that immediate housing reassignment was not necessary
and that a life-endangerment investigation should be undertaken
prior to any change in Longoria’s assignment. Early the next
morning, the attack occurred.
6
Longoria brought suit under 42 U.S.C. § 1983 against the
State of Texas, TDCJ,6 Major Hudson, Officers Farr, Glass, Johnson,
Peacock,7 Rogers, Stafford, and Staggs. Narrowing Longoria’s
claims to those of failure to protect and state-created danger, the
district court denied Defendants’ motion for summary judgment based
on qualified immunity. All of the officers have appealed.
II. DISCUSSION
Government officials performing discretionary functions
are entitled to qualified immunity from civil liability to the
extent that “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 2738 (1982). For qualified immunity purposes,
“[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates
that right.” Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004)
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,
3039 (1987)).
It is well established that prison officials have a
constitutional duty to protect prisoners from violence at the hands
6
Defendants State of Texas and TDCJ were subsequently
dismissed from this lawsuit for lack of subject matter
jurisdiction pursuant to the Eleventh Amendment.
7
Longoria now admits that Defendant Peacock was fallaciously
named as a party and is not involved in any of the events that
precipitated this lawsuit. The parties agree that Officer
Peacock was not on duty at the time of the assault.
7
of their fellow inmates. See Farmer v. Brennan, 511 U.S. 825, 832-
33, 114 S. Ct. 1970, 1976-77 (1994).8 Under Farmer, an inmate
“must show that he is incarcerated under conditions posing a
substantial risk of serious harm” and that prison officials were
deliberately indifferent to an inmate’s safety. Id. at 834, 114 S.
Ct. at 1977. An official acts with the requisite deliberate
indifference if he is aware of an “excessive risk to
inmate...safety” and disregards that risk. Id. at 837, 114 S. Ct.
at 1979. In this context, an officer’s awareness of the risk is
evaluated subjectively. “[T]he official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists” and must in fact also have drawn the
inference. Id. No liability exists, however, if an official
8
Longoria also argues that his rights were violated under a
state-created-danger theory. This circuit has never sustained a
§ 1983 claim predicated upon the state-created danger theory, and
we decline to do so today. See, e.g., Rios v. City of Del Rio,
Tex., 444 F.3d 417, 422-23 (5th Cir. 2006); McClendon v. City of
Columbia, 305 F.3d 314, 329-33 (5th Cir. 2002) (en banc), cert.
denied, 537 U.S. 1232, 123 S. Ct. 1355 (2003); Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 530-32 (5th Cir. 1994).
Moreover, the district court’s intimation that our decision in
Scanlan v. Texas A&M Univ., 343 F.3d 533 (5th Cir. 2003),
provides a potential basis for Longoria’s novel state-created-
danger claims is incorrect. Since Scanlan, we have explicitly
rejected this theory of liability. See Rios, 444 F.3d at 422-23;
Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004);
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir.
2003). Because Longoria was in state custody, Longoria’s claim
is fully subsumed by the Eighth Amendment. The district court
therefore erred in denying summary judgment under the state-
created-danger.
8
reasonably responded to a known substantial risk, “even if the harm
was ultimately not averted.” Id. at 844, 114 S. Ct. at 1983.
The district court predicated its denial of summary
judgment on the existence of disputed material facts, including the
authenticity of the May 22 letter, the amount of notice given by
Longoria to the responsible prison officials, their responses to
this notice, and the events on the morning of the attack. Because
the standard outlined by Farmer requires an evaluation of both
subjective knowledge and objective reasonableness, the court erred
in using these factual disputes as a blanket justification for
denial of summary judgment to the defendants as a class, without
further considering their individual roles in the disputed
incidents. When, as here, the district court does not explain with
sufficient particularity the factual basis justifying a denial of
qualified immunity, an appellate court must examine the record, and
it becomes our task to determine whether, when viewing the facts in
the light most favorable to Longoria, each defendant was entitled
to qualified immunity. Johnson v. Jones, 515 U.S. 304, 319, 115
S. Ct. 2151, 2159 (1995); Beltran v. City of El Paso, 367 F.3d 299,
302 (5th Cir. 2004).
A. Officers Farr, Staggs, and Rogers
Longoria asserts that pod officers Farr, Staggs, and
Rogers were either deliberately indifferent to his safety or
actually participated in or aided Peralez and White in the attack.
9
First, other than the mere assertion itself, Longoria offers
absolutely no evidence to suggest that these officers conspired in
any way with TS members in planning Longoria’s stabbing. We
accordingly disregard this aspect of his claim. See Behrens v.
Pelletier, 516 U.S. 299, 304, 116 S. Ct. 834, 838 (1996) (“nebulous
theories of conspiracy” cannot sustain summary judgment) (internal
quotation marks omitted); Warfield v. Byron, 436 F.3d 551, 557 (5th
Cir. 2006) (“conclusory allegations” or “unsubstantiated
assertions” do not create a fact issue on summary judgment)
(citation omitted).
Next, Longoria argues that because Farr, Staggs and
Rogers were present in the pod at the inception of the attack,
their failure to intervene abdicated their duty to protect him and
amounted to deliberate indifference. Pursuant to Texas Department
of Criminal Justice policy at the time of the incident, officers
tasked with escorting lockdown-status inmates to and from their
cells do not carry weapons.9 Instead, in the event of an armed
attack between inmates, officers are instructed, first, to insure
9
The officers did, however, violate a directive dated August
19, 1999, from Major Powell which required that no more than two
inmates be removed from their cells at one time during lockdown.
Deviation from policy alone might support a negligence claim, but
is insufficient by itself to support an argument for deliberate
indifference with respect to Farr, Staggs, and Rogers.
Irrespective of the lockdown policy, escorting an inmate out of
lockdown while other inmates, who were strip-searched and are
showering in an area that also had been searched, is not itself
unreasonable.
10
their own safety by leaving the pod and, second, to obtain armed
reinforcements.
Longoria in effect asks this court to fashion a new
Eighth Amendment rule that would require unarmed prison guards to
physically intervene in altercations between armed inmates or risk
being found deliberately indifferent. Although we have previously
held that an officer’s failure to take reasonable measures to
protect a suspect from excessive force can give rise to § 1983
liability, see Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995);
Harris v. Chanclor, 537 F.2d 203, 205-06 (5th Cir. 1976), no rule
of constitutional law requires unarmed officials to endanger their
own safety in order to protect a prison inmate threatened with
physical violence. The officers violated no “clearly established”
law by failing to intervene while unarmed.
Finally, there is no evidence that Farr, Staggs, or
Rogers were aware of Longoria’s activities as an informant, that he
had previously requested to be removed from lockdown, or that he
had made a life-endangerment claim to Officer Vann on the evening
before the attack. Officer Rogers thus did not act unreasonably
when he escorted an unwilling Longoria from his cell while Longoria
was warning that the inmates in the shower wanted to kill him.
Because neither Farr, Staggs, nor Rogers had any knowledge of a
substantial threat to Longoria’s safety, as a matter of law they
did not act with deliberate indifference. The district court
11
therefore erred in denying these officers summary judgment based on
qualified immunity.
B. Officer Glass
Longoria asserts that Officer Glass acted with deliberate
indifference to his safety because she failed to take any steps to
protect him after she was made aware of his life-endangerment claim
by Officers Johnson and Vann. But he offers no evidence that
Officer Glass had any knowledge of his communications with prison
officials or his asserted fears of attack prior to May 26, 2000.
Even assuming that Officer Glass did have knowledge of his history
as an informant, there is no Eighth Amendment violation because the
undisputed facts demonstrate that she responded reasonably to the
life-endangerment referral from Officers Johnson and Vann. Officer
Glass was not authorized to order an immediate housing reassignment
for Longoria and informed Officer Vann that, if appropriate, Vann
should contact an officer authorized to do so. We have previously
held that responding to an inmate’s complaints “by referring the
matter for further investigation” or taking other appropriate
administrative action fulfills an official’s protective duties
under the Eighth Amendment. Johnson, 385 F.3d at 526. Officer
Glass’s conduct thus did not violate clearly established law at the
time of the attack and entitled her to qualified immunity.
C. Officer Stafford
12
Similar to the claims he makes against Officer Glass,
Longoria asserts that Officer Stafford failed to adequately protect
him from attack by Peralez and White and disregarded a substantial
risk to his safety. Longoria’s only contacts with Stafford
occurred several months before the attack, when he sent information
regarding the Ramirez murder to Officers Scott and Stafford on an
I60 reporting form and later met with him. There is no evidence
that Stafford was aware of the life-endangerment claims nor has
Longoria shown that Stafford knew that TS members had learned of
their meeting. The mere fact that Stafford knew Longoria was
operating as an informant is insufficient to prove that Stafford
had knowledge of a substantial risk to Longoria’s safety by the TS.
See Adames v. Perez, 331 F.3d 508, 514 (5th Cir. 2003) (stating
under virtually identical circumstances that an officer to whom an
informant divulges information is entitled to qualified immunity
unless it can be shown that the officer knew that the inmate’s
status as an informant had been revealed). Longoria’s deliberate
indifference claim against Stafford thus fails because there is no
indication that Stafford’s conduct was unreasonable. The district
court erred in denying qualified immunity to Officer Stafford.
D. Major Hudson and Officer Johnson
Both Major Hudson and Officer Johnson were aware of
Longoria’s activities as an informant from the inception of the
period pertinent to this lawsuit. Although Longoria never provided
13
information regarding the TS directly to Hudson, Hudson was
informed by Officers Johnson and Scott that Longoria was an
informant supplying information about “hits” involving TS members.10
Additionally, Hudson instructed Officer Johnson to conduct
interviews with Longoria on March 15 and March 22, 2000. Johnson
claims that Longoria did not request a life-endangerment
investigation at either of these meetings and that she had no
knowledge that Longoria was scheduled for another interview on the
day of the stabbing. Neither Hudson nor Johnson could confirm that
they received or reviewed the various letters Longoria claims to
have written in which he requested a life-endangerment
investigation in the weeks prior to the attack. Major Hudson
testified that he had no knowledge of Longoria’s May 26 life-
endangerment request.
Whether a prison official had knowledge of a substantial
risk to inmate safety is a question of fact over which this court
lacks jurisdiction. See Farmer, 511 U.S. at 842, 114 S. Ct. 1981;
Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998). As the
10
On one occasion, while conducting rounds, Major Hudson
admits that he could have possibly spoken with Longoria regarding
the alleged location of weapons stashed in the prison. Longoria,
in contrast, testified regarding the same brief meeting: “so, I’m
sitting on top of my bunk looking at the Warden – I mean, the
Major – excuse me. And I was telling him – I was – I was making
sign language that I need to talk to him and I kept on telling
him they are going to kill me in sign language. And he looked at
me and, he said, ‘Okay.’ Well, when he left, I never heard from
him.” Apart from this disputed incident Hudson never met with
Longoria or interviewed him.
14
district court observed in its order denying summary judgment,
material issues of fact exist with respect to the authenticity of
Longoria’s correspondence and the amount of notice he provided to
prison officials in the weeks before the attack. If Hudson and
Johnson had indeed received repeated warnings from Longoria,
including the currently unauthenticated letter in which Longoria
details the TS plot to kill him and his fear of remaining in
lockdown with his putative murderers, they might have been aware of
facts from which inferences suggesting deliberate indifference
could be drawn. Consequently, we have no jurisdiction to address
this issue on interlocutory appeal. See Smith, 158 F.3d at 912-13
(dismissing interlocutory appeal for lack of jurisdiction when
material fact issues existed regarding whether the existence and
contents of certain letters put prison officials on notice of a
substantial risk to inmate safety).
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s denial of summary judgment on qualified immunity grounds
with respect to Officers Farr, Glass, Peacock, Rogers, Stafford and
Staggs, and dismiss the appeal with respect to Major Hudson and
Officer Johnson for lack of jurisdiction.
REVERSED IN PART; DISMISSED IN PART.
15