            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             April 2, 2009

                                      No. 08-40157                     Charles R. Fulbruge III
                                    Summary Calendar                           Clerk



DARYL L DAVIS

                                                   Plaintiff - Appellant
v.

WAYNE N TUCKER; MICHAEL R MCDUFFIE

                                                   Defendants - Appellees




                    Appeals from the United States District Court
                          for the Eastern District of Texas
                                USDC No. 9:07-CV-19


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Inmate Daryl Davis appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 action, in which he alleges prison employees failed to protect him from
two assaults perpetrated on him by other inmates.1 Specifically, Davis alleges
that Officer Tucker told Officer McDuffie that Davis had reported McDuffie for
taking payments from inmates and that to retaliate McDuffie arranged for


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           See Farmer v. Brennan, 511 U.S. 825, 833 (1994).
                                        No. 08-40157

members of the Mandingo Warriors prison clique to assault Davis. Davis also
brought suit against two other officers, Dennis Dezeeuw and Justin Gilbert, for
ignoring information suggesting Davis was in danger of assault and not taking
action to prevent the assaults.
       The district court granted summary judgment in favor of Officers Tucker
and McDuffie. We review a district court’s grant of summary judgment de novo
and examine the evidence in the light most favorable to the nonmoving party.2
Regarding Officer Tucker, the district court granted summary judgment because,
even assuming Tucker informed McDuffie that Davis snitched on him, there is
no evidence in the record establishing that Tucker was aware that McDuffie
would retaliate against Davis.3 The district court did not err and we affirm the
grant of summary judgment in favor of Tucker.
       The district court erred, however, in granting summary judgment in favor
of Officer McDuffie.         If McDuffie paid inmates to assault Davis, as Davis’
complaint alleges, this obviously would rise to a level of deliberate indifference
beyond that protected by qualified immunity.4 The district court, however, found
no competent summary judgment evidence supporting Davis’ allegation that
McDuffie ordered the hit on Davis or knew of an impending hit on Davis. The
district court’s finding ignores interoffice communications between prison
officials indicating that several informants asserted that Officer McDuffie paid
the Mandingo Warriors thirty packs of Bugler tobacco to assault Davis. It also
ignores the affidavit of inmate James Grant asserting that Officer McDuffie told
him that Tucker had chewed him out for accepting items from inmates and that


       2
           Randolph v. Cervantes, 130 F.3d 727, 729–30 (5th Cir. 1997).
       3
       Farmer, 511 U.S. at 837 (deliberate indifference requires that “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.”).
       4
           See Adames v. Perez, 331 F.3d 508, 514 (5th Cir. 2003).

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he knew of McDuffie’s conduct because Davis had “told him everything.” This
evidence raises a genuine issue of material fact with respect to whether
McDuffie violated Davis’ Eighth Amendment rights.
       The district court dismissed the claims against Officers Dezeeuw and
Gilbert under 28 U.S.C. § 1915A(b)(1). We review a district court's dismissal
under § 1915A de novo.5 Davis’ claim against Dezeeuw faults him for not placing
Davis in protective custody despite Dezeeuw having evidence that inmates
intended to assault Davis. Dezeeuw, however, did not ignore the information,
but sought to obtain corroboration before taking further action. This was a
reasonable response to a potential risk.6             The district court did not err in
dismissing the claims against Dezeeuw.7
       Davis’ claim against Gilbert faults Gilbert for leaving Davis vulnerable to
the second assault when Gilbert failed take proper measures after the first
attack, such as filing disciplinary charges against the perpetrators or placing
Davis in protective custody. Allegations of negligent or unreasonable action are
not sufficient to state a claim under the Eighth Amendment.8 There is no
evidence that Gilbert was aware of facts from which he should have inferred that
not filing disciplinary charges would result in a substantial risk of Davis being




       5
           Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007).
       6
           See Johnson v. Johnson, 385 F.3d 503, 526–27 (5th Cir. 2004).
       7
         Davis’ complaint also alleges that “Dezeeuw and the rest of the administration” failed
to protect him because he is a black offender. The district court did not address Davis’
discrimination claim, which we construe as an Equal Protection Clause claim. In order to
state a claim of racial discrimination under the Equal Protection Clause and § 1983, a plaintiff
must demonstrate that the governmental official was motivated by intentional discrimination
on the basis of race. Coleman v. Houston Ind. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). We
note that Davis’ bald assertion of discrimination is not supported by any evidence in the
record.
       8
           Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).

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attacked again. While we do not condone Gilbert’s inaction, it does not amount
to deliberate indifference.
           Lastly, Davis moves for appointment of counsel upon remand. An
attorney should be appointed to an indigent in a § 1983 case only if “the case
presents exceptional circumstances.” 9 Davis argues that because some of the
summary judgment evidence came from confidential informants, which we
assume are other inmates, he needs counsel to access the identities and conduct
discovery from those informants. Davis has not motioned the district court to
appoint counsel, and the district court is in the best position to consider whether
circumstances of this case warrant the appointment of counsel. We will not at
this time grant Davis’ motion, but he may renew the motion in the district court.
      We AFFIRM the district court’s dismissal of the claims against Officers
Tucker, Dezeeuw, and Gilbert, but REVERSE and REMAND the dismissal of the
claims against Officer McDuffie. We DENY the motion for appointment of
counsel.




      9
          Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

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