Longoria v. State of Texas

                                                              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