              REVISED, February 2, 1998
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                      _____________________

                           No. 96-60415
                      _____________________


                          JIMMY NEWTON,

                              Plaintiff-Appellee/Cross-Appellant,

                              versus

                      LEE ROY BLACK, ET AL.,

                                                        Defendants,

                          JAMES BREWER,

                              Defendant-Appellant/Cross-Appellee,

                           TOMMY ROSS,

                                          Defendant/Cross-Appellee.

_________________________________________________________________

          Appeal from the United States District Court
            for the Southern District of Mississippi

_________________________________________________________________
                         January 13, 1998

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     With regard to this action for 42 U.S.C. § 1983 and state law

claims, in which Jimmy Newton, a state prisoner, alleged that he

was beaten by another inmate as a result of, inter alia, the

negligence of Lieutenant James Brewer, a prison official, the

primary issue at hand is whether, under Mississippi law, Lieutenant

Brewer had a ministerial duty to report a threat against Newton and
is, therefore, not entitled to qualified immunity.                   Lieutenant

Brewer appeals the $10,000 judgment for Newton on his state-law

negligence claim, maintaining that he is entitled to qualified

immunity; Newton cross-appeals the adequacy of those damages and

the dismissal of his Eighth Amendment failure-to-protect claim.

Concluding that Lieutenant Brewer is entitled to qualified immunity

under   Mississippi      law,   and   that    the   district   court   properly

dismissed Newton’s other claims, we AFFIRM IN PART, and REVERSE and

RENDER IN PART.

                                       I.

     Newton’s pro se and in forma pauperis civil rights complaint,

filed in mid-1991 against various Mississippi State Penitentiary

officials, including Lieutenant Brewer, pursuant to § 1983 and

state law, alleged that the defendants’ deliberate indifference,

failure   to   provide    adequate    protection,      and   gross   negligence

resulted in his being beaten by an unidentified inmate.                  In an

amended complaint, he alleged that he had reported to Lieutenant

Brewer that he had been threatened by inmate Melvin Walls.                After

conducting a Spears hearing, see Spears v. McCotter, 766 F.2d 179

(5th Cir. 1985), the magistrate judge determined that Newton had

failed to show that the defendants had acted with deliberate

indifference, and recommended that the complaint be dismissed as

frivolous, pursuant to 28 U.S.C. § 1915(d) (now § 1915(e)).

     The district court rejected that recommendation, because the

magistrate judge had failed to consider Newton’s amended complaint,

including the allegation that he had relayed Walls’ threats to at


                                      - 2 -
least one of the defendants.     Therefore, the case was referred to

the magistrate judge for further proceedings.

      In a second amended complaint, Newton was represented by

counsel.   Named defendants were Steve Puckett (Superintendent of

the   Mississippi   State   Penitentiary),   Captain   Tommy   Ross,   and

Lieutenant Brewer; and Newton added a claim for denial of adequate

medical treatment.

      At an evidentiary hearing before the magistrate judge, Newton

testified that, on 6 March 1991, between 7:00 and 8:00 a.m., an

inmate (whom he could not then identify by name, but who was later

identified as Walls during Newton’s brief meeting with Lieutenant

Brewer) threatened Newton because he would not give Walls a cup of

coffee; that, at around 10:00 a.m., he reported the threat to

Lieutenant Brewer and told the Lieutenant that he wanted either

Walls or himself transferred; that, around 10:30 a.m., while he

(Newton) was talking to Lieutenant Brewer, Walls walked into the

Lieutenant’s office and told the Lieutenant that he would hurt

Newton if Lieutenant Brewer did not return Walls’ property that had

been confiscated; that Lieutenant Brewer had been more concerned

about Newton finishing his cleaning duties than about Walls’

threat; and that, at approximately 11:00 a.m., while he (Newton)

was watching television, Walls assaulted him, striking him in the

mouth and face with a broom handle.

      When asked what Lieutenant Brewer could have done to prevent

the assault, Newton responded that the officials should have known

that Walls was a threat to inmates housed in his unit; and that


                                 - 3 -
Lieutenant Brewer could have looked into the situation further and

transferred him or Walls to another unit.

      On cross-examination, Newton testified that, after Lieutenant

Brewer talked to Walls, the Lieutenant ordered Walls to pack his

belongings, because Lieutenant Brewer was going to transfer him;

but   that,   prior   to   the   assault,   after    Walls   had   packed   his

belongings, another Officer told him to unpack.

      Walls testified that his dispute with Newton sprang from

Walls’ walking across the floor Newton was mopping on the morning

of the incident (as noted, Newton said the dispute was instead over

coffee); that he (Walls) told Lieutenant Brewer that he wanted to

be transferred and, if not, “somebody was going to get hurt”; and

that he was angry with Lieutenant Brewer because the guards had

confiscated an earring from him (Walls).            According to Walls, when

a prisoner threatens someone “[t]hey are supposed to move one ...

of the inmates to a different section”.               On cross-examination,

Walls denied having been in Lieutenant Brewer’s office with Newton

that morning.

      Captain Ross testified that Lieutenant Brewer was working

under his supervision on the day of the incident; that, also pre-

assault, Lieutenant Brewer did not report any incident involving

Walls and Newton; that, also prior to the assault, he was aware

that Walls was a “trouble maker”, but not that he was violent; and

that, with respect to the incident, everything was done that could

have been done, because there is no way to prevent a spur-of-the-

moment assault.


                                    - 4 -
     Captain Ross admitted, however, that the attack would have

been prevented had Walls been moved pre-assault; and that, if Walls

had told him he was going to hurt another inmate, he would have put

him in the holding cell.   Regarding such Department of Corrections

policy, Captain Ross testified as follows:

          Q    Now, you would agree with me that the
          policy of the [Mississippi Department of
          Corrections] on March 6th, 1991 [the day of
          the incident], if an inmate advised an officer
          that he was going to hurt another inmate, that
          either the inmate making the threat or the
          inmate being threatened should be removed,
          correct?

          A    Even the most inexperienced staff member
          at Parchman would immediately take action.

          Q    Should take action, correct?

          A    They would take action.

          Q    And if an officer knew of a threat being
          made, he should also file [a rules violation
          report], is that correct, against the inmate
          making the threat?

          A    If there was evidence that the threat was
          made, he would do the incident report and the
          [rules   violation   report]    and   isolate,
          whichever one.

          Q    You     remember   telling   me   in   your
          deposition   that an investigation into a threat
          should be    started as soon as the threat is
          made or is   made known to the officer?

          A    Immediately.

          Q    No time should be wasted?

          A    No time wasted.

          Q    Because if any time is wasted, it could
          result in danger to the inmate or another
          officer, correct?

          A    Yes, sir.

                                 - 5 -
             Q    And if ... an officer did not immediately
             start an investigation and knew that a threat
             was made, he would be derelict in his duties,
             correct?

             A    If it was a serious threat and it was a
             threat upon another inmate I would say he
             would be derelict in his duty; yes, sir.

(Emphasis added.)

      Lieutenant Brewer, the administrator of the unit where Newton

and Walls were housed on the day of the incident, testified that,

on that day, he confiscated an earring from Walls at around 7:45

a.m.; and that, at approximately 8:30 a.m., Walls told him that he

wanted to be moved if he could not have his earring back and “would

be a problem” if he was not moved.            Lieutenant Brewer testified

that he did not understand Walls to be making a threat, but merely

talking “in the heat of anger”. According to Lieutenant Brewer, he

told Walls to pack his bag, and Walls did so; he talked to Walls

again, and explained that Walls would lose the opportunity to get

an education if he moved to another unit; and Walls understood and

was willing to stay.

      Lieutenant Brewer also testified that Walls did not mention

Newton’s name; and that Newton did not tell him that Walls had

threatened him. Lieutenant Brewer testified further that, prior to

the assault, he did not know about Walls’ reputation for violence;

but   that   he   considered    all   offenders    dangerous      and   violent.

Regarding     Department   of    Corrections      policy   when    one    inmate

threatens another inmate, Lieutenant Brewer testified as follows:

             Q    ... the policy concerning when an inmate
             threatens another inmate?


                                      - 6 -
          A      Right.

          Q      Or an officer?

          A      Right.

          Q      Is to transfer one of them?

          A      Right.

          ....

          Q    Okay. So you called [sic] somebody and
          say, I have got a prisoner who has made a
          threat and I need to transfer that prisoner or
          put the other one in protective custody,
          right?

          A    As I stated,       I   never   heard   Inmate   Walls
          threaten anyone.

          ....

          Q    I am asking you what the [Mississippi
          Department of Corrections] policy is when you
          have a problem with an inmate, he threatens
          somebody? What do you do with that inmate?

               You transfer him, right, or put the other
          one in protective custody, right?

          A    The only thing that I can do is request
          that he be transferred.    I can’t transfer
          him.... [I]f ... one makes a threat, I will
          call my supervisor.

          Q    Okay. And tell them that prisoner made a
          threat and you need to transfer one?

          A    If he threatens another inmate I will
          call [my supervisor] and he will recommend the
          next step that I take.

(Emphasis added.)   But, Lieutenant Brewer testified that he had no

reason to call his supervisor or request that Walls be transferred,

because he was not aware of Walls’ threat against Newton and did

not feel that Walls was a threat.



                                  - 7 -
     Steve       Puckett,   Superintendent   of   the   Mississippi   State

Penitentiary on the day of the incident, testified as follows

regarding the Department of Corrections policy on inmate threats:

             Q    What was the policy or procedure as it
             pertained to the transfer of inmates who have
             made threats of violence against other inmates
             or against a guard?

             A    ... if an inmate was threatened and he
             reported it, they would be separated.      The
             inmate being threatened could possibly be
             placed   on    protective   custody    through
             classification, or he could have red tagged
             the inmate who threatened him where they would
             not be housed in the same housing unit.

             Q    So am I correct in stating that when an inmate makes
             a threat against another inmate and an officer is advised
             of that, that officer should take immediate action?

             A      Yes, sir.

             Q      To transfer the inmate making the threat?

             A    Yes, sir.   The officer should notify a
             supervisor what is going on and steps should
             be taken to separate the inmates; yes, sir.

             Q    An officer who failed to take immediate
             action to separate an inmate who has made a
             threat against another inmate would be
             derelict in his duty, correct?

             A      Yes, sir, yes, sir.

             Q    And the policy or procedure is made up
             and instigated by the [Mississippi Department
             of Corrections] for the safety of the
             prisoners, as well as the officers, correct?

             A      Yes, sir.

             ....

             Q    And an officer who is aware that an
             inmate has threatened another prisoner and
             allows him near that prisoner would also be
             derelict in his duty, correct?
             A    Yes, sir, I would say so.

                                    - 8 -
(Emphasis added.)

     Following the hearing, the magistrate judge concluded that

Newton’s § 1983 claims for deliberate indifference and failure to

provide adequate medical care were without merit.                     He concluded,

however,   that    Captain      Ross     and    Lieutenant      Brewer      had    acted

negligently in failing to protect Newton from Walls’ threats, and

recommended a $10,000 judgment against them on that state law

claim.

     The   district     court        adopted    the     dismissal-recommendation

respecting   the    §   1983    claims.         On   the    other    hand,    for   the

negligence claim, the court held (1) that Captain Ross was entitled

to qualified immunity under Mississippi law because there was no

evidence   that    he   knew    of    the    threat;    but    (2)    that,    because

Lieutenant   Brewer     had     a    mandatory       obligation      to   inform     his

supervisor   of    Walls’      threat,      which     the   court    held     to   be   a

ministerial function, and failed to do so, qualified immunity did

not shield him from liability. Accordingly, a $10,000 judgment was

awarded Newton on his negligence claim against Lieutenant Brewer;

the other claims were dismissed.

                                         II.

     Lieutenant Brewer challenges the denial of qualified immunity;

Newton, the dismissal of his § 1983 failure-to-protect claim and

the adequacy of the negligence claim damages.                     (Newton does not

raise the inadequate medical care claim.)                   It goes without saying

that we review the district court’s factual findings for clear

error and its legal conclusions, including on state law issues, de

                                        - 9 -
novo.     FED. R. CIV. P. 52(a); Salve Regina College v. Russell, 499

U.S. 225, 238 (1991); e.g., Johnson v. Gambrinus Co./Spoetzl

Brewery, 116 F.3d 1052, 1056 (5th Cir. 1997).

                                   A.

     In claiming an erroneous application of Mississippi qualified-

immunity law, Lieutenant Brewer asserts that the evidence did not

show that he had a duty positively imposed by law (a ministerial

duty) to report a threat of violence by an inmate; and that,

because he was instead performing a discretionary function, he is

entitled to such immunity.

     Under Mississippi law, its officials sued for damages in a

civil action enjoy qualified immunity from tort liability when

performing    discretionary   official    functions.   E.g.,   Evans   v.

Trader, 614 So. 2d 955, 957 (Miss. 1993); see also Webb v. Jackson,

583 So. 2d 946, 949-50 (Miss. 1991).       However,

            a governmental official has no immunity to a
            civil action for damages if his breach of a
            legal duty causes injury and (1) that duty is
            ministerial in nature, or (2) that duty
            involves the use of discretion and the
            governmental actor greatly or substantially
            exceeds his authority and in the course
            thereof causes harm, or (3) the governmental
            actor commits an intentional tort.     Beyond
            that, a government official has no immunity
            when sued upon a tort that has nothing to do
            with his official position or decision-making
            function and has been committed outside the
            course and scope of his office.

Grantham v. Mississippi Department of Corrections, 522 So. 2d 219,

225 (Miss. 1988) (emphasis on “or” in original; remaining emphasis

added).



                                 - 10 -
     The Mississippi Supreme Court has stated that “[t]he most

important criterion” in determining whether an act is ministerial

is whether “the duty is one which has been positively imposed by

law and its performance required at a time and in a manner or upon

conditions which are specifically designated, the duty to perform

under   the   conditions   specified   not   being   dependent   upon   the

officer’s judgment or discretion.” Poyner v. Gilmore, 158 So. 922,

923 (Miss. 1935) (internal quotation marks omitted) (emphasis

added); see also Mohundro v. Alcorn County, 675 So. 2d 848, 853

(Miss. 1996); Sorey v. Kellett, 849 F.2d 960, 963 (5th Cir. 1988).

     Along this line, a discretionary duty or function involves

“personal deliberation, decision and judgment”.         Davis v. Little,

362 So. 2d 642, 643 (Miss. 1978) (internal quotation marks and

citation omitted); see also State for Use & Benefit of Brazeale v.

Lewis, 498 So. 2d 321, 322 (Miss. 1986) (emphasis added) (qualified

immunity for the discretionary acts of public officials has evolved

“[i]n order to allow [them] to participate freely and without fear

of retroactive liability in risk-taking situations requiring the

exercise of sound judgment”); Poyner v. Gilmore, 158 So. at 923

(duty is discretionary if it requires the official to use personal

judgment and discretion in the performance of that duty); Glover v.

Donnell, 878 F. Supp. 898, 901 (S.D. Miss. 1995) (emphasis added)

(“it is precisely this type of official act, one in which the

official’s judgment is implicated, which the qualified immunity for

discretionary acts is meant to protect”).




                                 - 11 -
      In sum, and as outlined above, because Newton’s negligence

claim is not for an intentional tort, Lieutenant Brewer is entitled

to qualified immunity (1) unless his duty to report Walls’ threat

was   a     ministerial        duty;    or     (2)    if     the    duty       was     instead

discretionary, he substantially exceeded his authority.                              See Webb,

583 So. 2d at 950.

                                              1.

      The     district    court        found       that    Newton       had    reported     to

Lieutenant Brewer that Walls had threatened Newton with violence;

and concluded that, as a result, the Lieutenant had a “mandatory,

nondiscretionary obligation to inform his supervisor of Walls’

threatened attack”.             Lieutenant Brewer does not challenge the

finding that Newton reported Walls’ threat to him (Lieutenant

Brewer).       Instead,        he   contends        that    the    testimony         regarding

Department of Corrections policy, in the absence of any evidence of

a   written    policy     or    statutory          authority,      is    insufficient      to

establish a duty “positively imposed by law”.                       He contends further

that, even assuming that the law positively imposed a duty, that

duty was      triggered    only        by   serious        threats,     with    his     having

discretion to decide which threats were serious enough to warrant

further action.

      Neither the district court nor Newton cited any Mississippi

authority for the proposition that a mandatory duty “positively

imposed by law” can be established in the absence of any evidence

of a written policy or statutory or other authority.                          See State for

Use of Russell v. McRae, 152 So. 826, 827 (Miss. 1934) (court


                                            - 12 -
relied    upon    statutes   to    conclude   that,     although    determining

necessity for repairs was discretionary, supervisor’s acts of

tearing down and rebuilding bridge were done in capacity of a

statutory road commissioner engaged in performance of ministerial

duty); Poyner v. Gilmore, 158 So. at 923 (court relied upon statute

in   finding     that   chancery   clerk   had   mandatory   duty    to    attach

certificate to claim presented for probate); Sykes v. Grantham, 567

So. 2d 200, 211 (Miss. 1990) (to determine whether parole board

members   lost     their   qualified   immunity    by    failing    to    perform

ministerial duties, court examined whether they complied with

statute setting forth their functions); McQueen v. Williams, 587

So. 2d 918, 922 (Miss. 1991) (noting that plaintiff “cited no

guideline or procedure—statutory or otherwise—to show that the

Sheriff’s decision-making in the performance of his duties involves

no discretion”); Coplin v. Francis, 631 So. 2d 752, 755 (Miss.

1994) (construction of county road bridges in accordance with

specifications mandated by statute for width and guard rails is

ministerial function); T.M. v. Noblitt, 650 So. 2d 1340, 1343-45

(Miss. 1995) (court relied upon statute in determining whether

public elementary school principal had a ministerial duty to report

child abuse); Mohundro, 675 So. 2d at 854 (because the minimum

standards for construction of culverts had been satisfied, there

was no breach of a ministerial duty).

      The only cases found in which ministerial functions were not

required by statute are distinguishable, because the performance of

those functions required no exercise of decision-making in the


                                     - 13 -
course of carrying out official duties.            See Davis v. Little, 362

So. 2d at 644 (act of driving a county vehicle on county business

does not involve discretionary decision-making process); Barrett v.

Miller, 599 So. 2d 559, 567 (Miss. 1992) (although determining

probable cause    for    issuance    of   a   warrant    is   a   discretionary

function, execution of search warrant is a ministerial function);

Stokes v. Kemper County Board of Supervisors, 691 So. 2d 391, 394-

95 (Miss. 1997) (driving a vehicle is a ministerial act).

      No doubt, the testimony establishes that there is some form of

Department of Corrections policy regarding inmate threats; but, the

exact parameters of that policy, as well as the precise duties of

a prison official who has knowledge of such a threat, are unclear.

For   example,   the   duties   described     by   the   testimony    included

starting an investigation, reporting the threat to a supervisor,

separating the involved inmates, and transferring one of the

inmates to another unit.        Moreover, it is far from “positively

established” that the policy imposes such duties for any and all

threats, regardless of how serious the official believes them to

be.

      Indeed, the testimony reflects otherwise.               As quoted supra,

Lieutenant Brewer’s supervisor, Captain Ross, testified that an

officer would be derelict in his duty if he did not immediately

start an investigation after becoming aware of a “serious threat”.

(Emphasis added.)      And, Lieutenant Brewer testified that, inmates

often say things on the spur of the moment, but without really

meaning anything, and that is why he talked to Walls; that, after


                                    - 14 -
he talked to Walls, he did not perceive a threat to anyone; and

that he took no action, because he had no reason to feel that Walls

was going to attack Newton that day.            There was no evidence of any

guidelines for assessment of the nature and seriousness of inmate

threats.

     The Mississippi State Penitentiary is a dangerous place.                 As

noted by the Superintendent in his testimony, the facility at

Parchman is the maximum security facility for the Mississippi

Department of Corrections, with approximately 80 percent of its

approximate 6,000 inmates being “violent offenders”.              Accordingly,

inmate   threats     there    must   be   taken    quite     seriously.   But,

concomitantly, threats are part of the penitentiary’s daily fare.

And such threats come in all forms and multiple variations and

situations.       If certain, specific action must be taken by prison

officials as to every one of those threats, then, surely, it would

seem that the policy would be clearly and precisely stated in

writing.    As noted, there is no evidence that it was at the time of

the incident.

     In the light of this testimony, and especially in the light of

there being no evidence of a written policy or of case law,

statutory    or    other     authority,   the     district    court   erred   in

concluding that the policy imposed a ministerial duty on Lieutenant

Brewer to report Walls’ threat to Lieutenant Brewer’s supervisor,

regardless of whether Lieutenant Brewer thought the threat was

serious enough to justify such action.            Restated, a duty to report

every threat was not “positively imposed by law”.


                                     - 15 -
       In this regard, in that the law did not positively impose a

duty to report every threat, an officer’s determination of whether

a   threat    was   serious     enough    to    warrant     further,      as    well    as

different types of, action involves the exercise of judgment and

is, therefore, discretionary.             See Davis v. Little, 362 So. 2d at

643 (internal quotation marks and citation omitted) (acts that

require      “personal    deliberation,          decision    and     judgment”         are

discretionary); T.M., 650 So. 2d at 1343 (“A duty is discretionary

if it requires the official to use her own judgment and discretion

in the performance thereof”); id. at 1345 (determination of whether

there is “reasonable cause” to report suspected incident of child

abuse   is    discretionary;      but    once     determination      is     made      that

reasonable cause exists, official has no discretion not to report

it).

       As   it   turns   out,   Lieutenant       Brewer     was   mistaken       in    his

assessment of the seriousness of the threat; but, obviously, that

does not deprive him of qualified immunity for the exercise of his

discretion in making that assessment.                See id. at 1343 (quoting

Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (“There must

indeed be means of punishing public officers who have been truant

to their duties; but that is quite another matter from exposing

such as have been honestly mistaken to suit by anyone who has

suffered from their errors.”), cert. denied, 339 U.S. 949 (1950)).

                                          2.

       Therefore, concerning this discretionary duty, into play comes

the    above-described      second       possible    basis     for     no      qualified


                                        - 16 -
immunity:     greatly exceeding authority.         In that regard, Newton

does not contend, nor is there any evidence, that Lieutenant Brewer

“greatly or substantially exceed[ed]” this discretionary decision-

making authority in determining (albeit mistakenly) that Walls’

threat was not serious enough to warrant reporting it to his

supervisor.    Grantham, 522 So. 2d at 225.        Accordingly, Lieutenant

Brewer is entitled to qualified immunity.

                                      B.

     On cross-appeal, Newton presents two issues.             Simply put, our

conclusion    that    Lieutenant    Brewer    is   entitled    to    state-law

qualified immunity puts to rest Newton’s claim regarding the

adequacy of awarded damages as to the Lieutenant.

     Remaining is only Newton’s constitutional failure-to-protect

claim. In that regard, he asserts that the defendants violated his

Eighth    Amendment   rights   by   failing   to   protect     him   from   the

threatened attack by Walls.

     Newton must show that he was “incarcerated under conditions

posing a substantial risk of serious harm and that prison officials

were deliberately indifferent to his need for protection”.                  See

Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).             “In order to

act with deliberate indifference, ‘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 v. Brennan, 511 U.S. 825, 837 (1994)) (emphasis

added).    Whether a prison official had the requisite knowledge of

a substantial risk is a question of fact.           Id.


                                    - 17 -
      Along this line, the district court found that Lieutenant

Brewer did not suspect that the risk of harm to Newton was

substantial.       In that regard, it noted the Lieutenant’s testimony

that Walls “calmed down after [the Lieutenant and Walls] discussed

the ramifications of [Walls] causing problems in [the] Unit".              The

court also found that Lieutenant Brewer had “responded to Walls’

anger and did not believe that Newton was in danger.”           Newton falls

far   short   of    demonstrating   that     those   findings   were   clearly

erroneous.

                                     III.

      For the foregoing reasons, that portion of the judgment

dismissing Newton’s § 1983 claims and his state law negligence

claim as to all defendants but Lieutenant Brewer is AFFIRMED; and

that portion of the judgment granting relief against Lieutenant

Brewer on that negligence claim is REVERSED, with judgment RENDERED

in favor of Lieutenant Brewer.


                    AFFIRMED IN PART; REVERSED and RENDERED IN PART




                                    - 18 -
