                          UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 08-1972


PHILIP E. PARKER, SR.; MELISSA RODRIGUEZ, individually and
as a personal representative of the Estate of Philip E.
Parker, Jr., deceased,

              Plaintiffs - Appellants,

         v.

STATE OF MARYLAND; MARY ANN SAAR, Secretary, Department of
Public Safety & Correctional Services; FRANK C. SIZER, JR.,
Commissioner, Division of Corrections; LEHRMAN DOTSON,
Warden, Maryland Correctional Adjustment Center; OFFICER
#1, Escorting Kevin G. Johns to sentencing; OFFICER #2,
Supervisor in charge of Transportation at the Maryland
Correctional Institution Hagerstown; OFFICER #3, Officer or
Officers who placed men on transportation vehicle at the
Maryland Correctional Institution Hagerstown to Maryland
Correctional Adjustment Center; ROBERT SCOTT, an Officer on
Transport   Vehicle;  KENYATTA   SURGEON,  an   Officer   on
transport vehicle; LARRY COOPER, an Officer on transport
vehicle; EARL GENERETTE, an officer on transport vehicle;
CHARLES GAITHER, driver of transport vehicle; OFFICER
NUMBER 9, Officer at the Maryland Correctional Adjustment
Center, Supervisor in charge of receiving inmates being
transported from the Maryland Correctional Institution
Hagerstown; OFFICER NUMBER 10, Officer or Officers at the
Adjustment   Center,  Officers   receiving   inmates   being
transported from the Maryland Correctional Institution
Hagerstown,

              Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:06-
cv-01676-AMD)
Argued:    December 8, 2010           Decided:   January 21, 2011


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, and DUNCAN
and AGEE, Circuit Judges.


Affirmed   by unpublished opinion.    Judge Duncan wrote the
opinion,   in which Associate Justice O’Connor and Judge Agee
joined.


ARGUED: Michael A. Mastracci, LAW OFFICE OF MICHAEL A.
MASTRACCI, LLC, Baltimore, Maryland; Samuel Martin Shapiro,
SAMUEL M. SHAPIRO, PA, Rockville, Maryland, for Appellants. Rex
Schultz Gordon, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.       ON BRIEF: Douglas F.
Gansler, Attorney General of Maryland, Stephanie Lane-Weber,
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

        This appeal arises out of Maryland inmate Kevin Johns’s

murder of a fellow prisoner, Philip Parker, Jr.                            Plaintiffs are

Parker’s      mother     and       father,        who    sued     various    correctional

officers, prison officials, and the State of Maryland, alleging,

inter    alia,   a     violation      of     Parker’s       Eighth       Amendment    rights

under    18   U.S.C.    § 1983.        The        district      court     granted    summary

judgment for defendants.              Plaintiffs urge that the court erred

by finding that their claims failed as a matter of law.                              For the

reasons described below, we affirm.



                                              I.

                                              A.

        We review the relevant facts, construing the evidence in

the     light    most    favorable           to     plaintiffs       and     drawing    all

reasonable inferences in their favor.                      Smith v. Ozmint, 578 F.3d

246, 250 (4th Cir. 2009).

        Parker   and    Johns       were   inmates        in    Baltimore,     Maryland’s

high-security “Supermax” prison.                    On January 31, 2005, Parker,

Johns, and two other Supermax inmates were transported by bus to

a correctional facility in Hagerstown.                            While in Hagerstown,

Parker    testified      at    a    sentencing          hearing    for    Johns.      Parker

explained that he had known Johns for “[t]hree or four years”

and liked him personally.             J.A. 102-03.             He added, however, that

                                              3
he believed that Johns needed treatment while incarcerated to

deal with paranoia and anger issues.

      In the early morning of February 2, 2005, a bus operated by

the Maryland Division of Correction picked up the four Supermax

inmates,    as    well    as    thirty-two        other     prisoners    from    several

Hagerstown       facilities,      for      transportation      back     to    Baltimore.

The   bus   was     staffed     by   five     correctional         officers:    Sergeant

Cooper and Officers Gaither, Generette, Scott, and Surgeon.                          All

of the officers were armed with firearms and pepper spray.

      The    officers      strip-searched           the     four     Supermax    inmates

before permitting them to board the bus.                      They also placed the

prisoners      in     three-point          restraints.             Officers     Gaither,

Generette,       Scott,   and     Surgeon        observed    the     Supermax   inmates

laughing, joking, and apparently on friendly terms with each

other as they took their seats at the rear of the bus.                             Johns

sat one row behind Parker.

      During      transport,      most      of    the     thirty-six     inmates    were

seated in three interior compartments, divided by grillwork and

locked doors.        One inmate had, at his request, been placed in a

protective     custody     cage      for    the    trip,     after    receiving    death

threats from Johns.            Parker had not reported any such threats,

nor were any of the officers otherwise aware of any tension or

conflict between Parker and Johns.



                                             4
     Officers Generette and Surgeon rode at the front of the

bus, next to Officer Gaither, who was driving.                     Sergeant Cooper

and Officer Scott rode in a compartment at the back of the

vehicle, about seven feet behind Parker’s seat, which was in the

rearmost     inmate   compartment.             A     layer   of    plexiglass   and

grillwork separated Sergeant Cooper and Officer Scott from that

compartment.

     The bus’s interior lights were turned off for most of the

ride.     While the bus was in transit, an inmate observed Officer

Surgeon    playing    games   on    her       cell    phone.       Another   inmate

witnessed an officer at the rear of the bus watching a portable

television set.

     Around    3:45   a.m.,   Officer         Scott    saw   a    then-unidentified

inmate at the rear of the bus get up from his seat and move to

the seat in front of him.          Officer Scott used the bus’s interior

telephone to report what he had seen to the officers at the

front of the bus.       He explained that “he did not know whether

the inmate was playing or not” but “thought [that] something had

happened.”     Id. at 123.         At his request, the bus’s interior

lights were turned on.

     Sergeant Cooper shone his flashlight through the plexiglass

and grillwork in the direction of the inmate who had switched

seats--now identified as Johns.               Johns had moved to sit on the

same bench as Parker.         Officer Scott could see a blue shirt in

                                          5
the corner of the seat by the window.                      Officer Scott knew that

the blue shirt did not belong to Johns, who had been wearing a

white    T-shirt      when   he   boarded        the    bus.      He   told    the    other

officers that when they reached their first stop, the Supermax

prison, they should “go back to the back of the bus as a team,”

as he was not sure “if the inmates were planning to try to do

something to an officer.”              Id. at 280.          For his part, Sergeant

Cooper “saw nothing unusual.”            Id. at 236.

      From the front of the bus, Officer Generette could see the

heads    of     the    inmates    in   the       rear    compartment     and    observed

“nothing unusual or out of the ordinary.”                         Id. at 123.        He saw

Johns in particular “look[ing] calm and relaxed, with his head

laid back on the seat[] looking at the ceiling.”                         Id.     Officer

Generette informed Officer Scott that nothing seemed wrong.                             The

officers turned off the interior lights and the bus proceeded to

the Supermax prison.

      Upon arrival, Officer Scott “[j]umped out” of the bus and

“[r]an around front.”             Id. at 282.            The officers stowed their

weapons in the vehicle’s weapon box and Officer Gaither unlocked

the rear compartment, where Johns’s movement had earlier been

observed.       Officer Gaither called each inmate out individually.

The     first    two     Supermax      inmates          emerged    without     incident.

Sergeant Cooper escorted them into the prison.



                                             6
     Johns was the third inmate called from his seat.                           He had

“red marks on his shirt” that “looked like blood.”                       Id. at 285.

Officer Scott also saw blood on the seat where Johns had been

sitting.        Officer Scott told Officer Gaither to hold Johns and

reported that Johns may have “cut” Parker.                     Id.      Officer Scott

then moved to Parker’s seat and found Parker “slumped down in

between the chairs.”            Id.    Officer Scott shook Parker and called

out to him, but Parker did not respond.                     Officer Scott raised

Parker’s head, revealing “a mark on his neck” and “some blood by

his nose.”       Id.

     Officer Scott attempted to lift Parker but was unable to do

so, since Parker’s leg was twisted under the seat.                             Officer

Scott    enlisted      the     help   of   Officer    Gaither.       While     the   two

worked     to     extricate      Parker,     Sergeant      Cooper    returned        from

escorting       the    first    two     Supermax     inmates     into    the   prison.

Sergeant Cooper asked if medical assistance was required and

Officer Gaither replied that it was.                   Sergeant Cooper returned

to the prison “and advised them to contact medical services or

call 911 because an inmate on the bus was injured.”                      Id. at 236.

     In     the       meantime,       Officers     Scott   and    Gaither      removed

Parker’s restraints and lifted him from his seat.                        The officers




                                            7
carried Parker to the front of the bus. 1                         Several minutes later,

they         removed      him     from    the    bus    and    laid    him    down     in   the

Supermax’s sallyport.

         While      Parker       was     laid    out    in    the   sallyport,       officers

repeatedly checked his pulse and verbally confirmed that he had

one. 2        An officer shone a flashlight into Parker’s eyes in an

attempt to gauge his responsiveness.                          Another officer requested

a sheet or blanket for Parker but neither was produced.                                After a

few      minutes         in     the    sallyport,       two   officers       carried    Parker

inside.             At    around       4:22     a.m.,    emergency      medical      personnel

arrived         and      began        treating    Parker.         Parker     was   taken     to

Baltimore’s Mercy Hospital, where he was                              pronounced dead at

4:57         a.m.             Parker’s     autopsy       showed       that    he     died    of

strangulation.

         A subsequent investigation revealed that Johns had loosened

his      restraints           during     transport.       While     still     seated    behind

         1
       The district court found that Officer Gaither performed
CPR on Parker at the front of the bus.     Rodriguez v. Maryland,
Civ. No. AMD 06-1676, at 5 (D. Md. July 31, 2008).       Although
there is testimony from the officers that Officer Gaither did
so, their account was disputed by an inmate, who testified that
no CPR was performed.       Consistent with our obligation to
construe disputed facts in the light most favorable to the
plaintiffs, we assume that no CPR was performed.
         2
       The record includes a video depicting a portion of the
events that took place at the Supermax facility.    It is not
clear how long the bus had been at the prison when recording
commenced.



                                                   8
Parker, Johns hooked his arm over the seat and choked Parker for

about five minutes, until he stopped moving.                               Johns then stood

up,   moved    forward,      and     sat    down        next    to    Parker.          Placing

Parker’s head in his lap, Johns made statements like “[t]his is

your last ride mother fucker” and “go to sleep little baby” and

cut Parker with a razor blade.                      Id. at 741.        Although at least

two inmates witnessed the murder, none of the prisoners alerted

the correctional officers that Parker was being attacked.

                                            B.

      Plaintiffs filed suit in Maryland state court in May 2006,

alleging    violations       of    Parker’s          federal    constitutional         rights

under the Eighth and Fourteenth Amendments as well as various

state   law    claims.        Defendants            removed     the    case     to     federal

district      court    on    June    29,        2006.          On    February     8,     2008,

defendants filed a motion to dismiss or, in the alternative, for

summary judgment.

      The district court granted defendants’ motion for summary

judgment on July 31, 2008.                 In a ten-page memorandum opinion,

the   court    concluded      that     neither           the    officers’       failure    to

protect Parker from Johns’s attack nor their limited treatment

of Parker’s injuries rose to the level of an Eighth Amendment

violation.      Rodriguez v. Maryland, Civ. No. AMD 06-1676, at 1-2

(D.   Md.   July      31,   2008).         As       a   result,      the    district    court

dismissed plaintiffs’ federal claim and remanded their suit to

                                                9
state    court   so   that   they     could   proceed      on   their    state     law

claims.    Id. at 10.      This appeal followed.



                                        II.

     We review the district court’s grant of summary judgment de

novo and affirm only if there is no genuine issue of material

fact and defendants are entitled to judgment as a matter of law.

Robinson    v.    Clipse,     602     F.3d    605,   607    (4th    Cir.        2010).

Plaintiffs argue that the district court ignored facts which

support their claim that the officers violated Parker’s Eighth

Amendment rights by failing to protect him from Johns and by

inadequately attending to his injuries. 3              We disagree.           While we

are not unsympathetic to the tragic circumstances of Parker’s

murder, plaintiffs’ arguments sound in negligence and do not

meet the high bar for Eighth Amendment claims.

                                        A.

     We first address plaintiffs’ assertion that the officers’

failure    to    protect     Parker    from    Johns    violated        the     Eighth

Amendment’s proscription of cruel and unusual punishment.                           To

prevail on an Eighth Amendment claim, a plaintiff must show that


     3
       We need not reach plaintiffs’ argument concerning the
admissibility of certain evidence, including unsworn hearsay
statements. Appellants’ Br. at 24-27. Even if we were to admit
the disputed materials, they would not defeat summary judgment.



                                        10
(1) the inmate was objectively denied “the minimal civilized

measure      of   life’s   necessities”          and   (2)     the    officers    had     a

“sufficiently culpable state of mind.”                       Farmer v. Brennan, 511

U.S.    825,      834   (1994)    (internal        quotations        omitted).          For

purposes of a claim that officers failed to prevent harm, the

objective portion of the test is met by a showing that the

inmate was “incarcerated under conditions posing a substantial

risk of serious harm.”           Id.     Since Parker was murdered while in

custody, the first part of the test is clearly satisfied.                              As a

result, plaintiffs’ claim turns on defendants’ state of mind.

       The    requisite    state       of   mind       for    an     Eighth    Amendment

challenge “is one of deliberate indifference to inmate health or

safety.”       Odom v. S.C. Dep’t. of Corr., 349 F.3d 765, 770 (4th

Cir.    2003)      (internal     quotations        omitted).           A   correctional

officer      is    deliberately     indifferent          if     he    “knows     of     and

disregards an excessive risk to inmate health or safety; 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.”                   Farmer, 511 U.S. at 837;

see also Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997).                             This

subjective        assessment     “sets       a    particularly         high      bar     to

recovery,” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008),

which cannot be met by “a showing of mere negligence,” Young v.

City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir. 2001).

                                            11
      Plaintiffs    are    correct   that    the   summary    judgment    record

paints a troubling portrait of the officers’ activities before,

during,   and    immediately    after    the   attack.       Inmate    testimony

shows that some of the officers were distracted during transit

and insufficiently attentive to the prisoners in their charge.

It is also undisputed that Sergeant Cooper and Officer Scott

failed to notice or intervene during the attack, which occurred

just seven feet from where they were sitting.                Further, none of

the officers tried to prevent Johns from switching seats during

transit or detected the razor blade he used to cut Parker.                    The

officers’ shortcomings, however, do not go to the ultimate issue

before us.       Absent some awareness of a “substantial risk of

serious harm,” Farmer, 511 U.S. at 837, the officers’ behavior

does not rise to the level of deliberate indifference.

      Plaintiffs have identified no evidence that the officers in

fact perceived such a risk before the attack.                Plaintiffs do not

dispute   that     the    officers   received      no   notification     of   any

conflict between Johns and Parker prior to transport and cite

nothing in the record to suggest the officers were otherwise

aware that Johns posed a threat to Parker.                To the extent that

the    officers     failed      to    independently        access      available

information about Johns’s criminal history, their omission was,

at most, negligent.



                                        12
       Given the officers’ lack of prior warning, plaintiffs must

show that the officers witnessed the attack and nonetheless were

deliberately indifferent to the risk it presented.                      Plaintiffs

cite   five   pieces       of    evidence     on   this    essential    point:    (1)

Officer Generette’s testimony that when the lights were turned

on he could see Johns’s head from the front of the bus, which

plaintiffs argue supports an inference that Sergeant Cooper and

Officer Scott could see more than they claimed; (2) an inmate’s

statement that, while seated at the front of the bus during

transit, he “heard moaning sounds . . . coming from the rear,”

J.A. 739; (3) another inmate’s testimony that he witnessed the

murder from “about 6 feet” away and “clearly heard Parker making

gagging and gasping sounds” as well as Johns making menacing

statements, J.A. 740-41; (4) an inmate’s claim that Sergeant

Cooper shone his flashlight directly on the blood on the back of

Parker’s seat shortly after the attack; and (5) a video walk-

through of the bus during discovery that, plaintiffs contend,

showed it was possible to see the attack from the officers’ rear

compartment.

       None   of     the     evidence       on     which   plaintiffs      rely    is

inconsistent       with    the    officers’      assertion   that   they   did    not

witness the attack.             Even allowing for a jury’s unique capacity

to weigh evidence and assess credibility, see, e.g., Holland v.

Wash. Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007), the fact

                                         13
that    officers     could    have    seen    the    attack   is   insufficient       to

support     the     inference     that     they    actually   witnessed        it.    As

plaintiffs’       counsel     conceded      at     oral   argument,      there   is   no

evidence that any officers saw the blood on Parker’s seat or

otherwise knew of the attack until after the bus had arrived at

the    Supermax     prison.       Plaintiffs’        arguments     to    the   contrary

amount to “mere speculation,” which cannot “create a genuine

issue of material fact.”              Emmett v. Johnson, 532 F.3d 291, 297

(4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th

Cir. 1985)).

       Plaintiffs’      reliance      on    Odom    highlights     the    weakness    of

their      claim.      In    Odom,    the    defendant     officers      received     an

explicit warning that Odom’s attackers were “going to try and

kill [him].”         349 F.3d at 767.            They then stood by and watched

as inmates began to demolish the recreational cage separating

them from Odom.             Id.      Perhaps most importantly, whereas the

officers in Odom “fail[ed] to offer any evidence in support of

any . . . justification for their actions,” id. at 772; see also

id. at 770 n.2, the officers here have presented an explanation

for their failure to intervene on Parker’s behalf: they were

unaware of the attack. 4


       4
        Burks v. Pate, 119 F. App’x 447 (4th Cir. 2005)
(unpublished disposition), is similarly distinguishable. In
Burks, the plaintiff presented photographic evidence and an
(Continued)
                                            14
       The officers’ failure to prevent Parker’s murder may have

been negligent.          But negligence does not constitute an Eighth

Amendment violation.          Young, 238 F.3d at 575.               Absent evidence

that any of the officers possessed a sufficiently culpable state

of     mind,     plaintiffs’      failure-to-prevent-harm                claim    cannot

surmount the Eighth Amendment’s “high bar to recovery.”                             Iko,

535 F.3d at 241.

                                        B.

       Plaintiffs next argue that the officers were deliberately

indifferent      to    Parker’s   ultimately        fatal    injuries      after     they

discovered       him    unconscious    on     the    bus.      Parker’s          “serious

medical condition” satisfies the objective prong of the Eighth

Amendment inquiry.          Johnson v. Quinones, 145 F.3d 164, 167 (4th

Cir.    1998).         Plaintiffs’    claim    again    turns       on    whether    the

officers       were    deliberately   indifferent       to    his    injuries.        In

order    to    prove    deliberate    indifference,         plaintiffs      must     show

that defendants “actually knew of and ignored [Parker’s] serious

need for medical care.”              Young, 238 F.3d at 575-76; see also

Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (noting that

prison guards can manifest deliberate indifference, inter alia,



affidavit that “created a genuine issue of material fact--
whether or not [the officer] actually saw the attack.”  Id. at
450.   The affidavit specifically stated that the officer “was
standing and looking up at the assault.” Id. at 449.



                                        15
by “intentionally denying or delaying access to medical care”)

(quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)).                                    On

these facts, plaintiffs cannot do so.

      Plaintiffs focus their claim on the officers’ failure to

perform      CPR    or    provide     other      medical    assistance        during      the

interval between when they carried Parker off the bus and when

emergency personnel arrived.                They rely heavily on a video that

shows      roughly       five    minutes      of    this    period,       during         which

plaintiffs argue the officers “did absolutely nothing to assist

the   unresponsive          Phillip      Parker.”        Appellants’         Br.    at    32.

Plaintiffs’ argument is unpersuasive.

      As     a   threshold       matter,     plaintiffs      ignore      the       officers’

undisputed actions in the minutes before video recording began.

After discovering Parker unconscious on the bus, Officer Gaither

instructed Sergeant Cooper to contact medical services.                               While

emergency personnel were being summoned, Officers Gaither and

Scott      worked      together     to    free     Parker   from       his    restraints,

extricate        him     from   his      seat,     and   move    him    off    the        bus.

Contacting medical services and removing Parker from his seat

are inconsistent with deliberate indifference.                            Cf. Iko, 535

F.3d at 243 (finding that the failure to “seek[] any medical

evaluation or even decontamination” after an inmate collapsed

due     to         pepper       spray      constituted          medical        deliberate

indifference).

                                              16
      Further,        plaintiffs’         lurid     description      of     the    events

depicted on video is misleading.                   At the outset of the video, a

correctional       officer     states      that     emergency      personnel       are    en

route.        In the intervening minutes, as shown on the recording,

correctional       officers       sought    a     sheet   or    blanket   for     Parker,

shone     a   light   in    his    eyes    to     gauge   his    responsiveness,         and

repeatedly took his pulse.                In other words, the video does not

support       plaintiffs’     claim   that        the   officers    ignored       Parker’s

condition.

      It is certainly probable that there are things the officers

could or should have done after discovering Parker’s condition.

But   once     again,      plaintiffs’      recitation      of    actions    not    taken

sounds entirely in negligence.                    On the undisputed facts, the

officers’ attention to Parker’s condition, though limited, was

sufficient to preclude a finding of deliberate indifference. 5




      5
       Plaintiffs’ failure to show that the officers inflicted a
constitutional   injury   necessarily   bars  any   finding   of
supervisory liability for the non-officer defendants.        See
Tigrett v. Rector & Visitors of Univ. of Va., 290 F.3d 620, 630-
31 (4th Cir. 2002); see also Shaw v. Stroud, 13 F.3d 791, 799
(4th Cir. 1994).



                                            17
                           III.

    For the foregoing reasons we affirm the grant of summary

judgment.

                                                    AFFIRMED




                            18
