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

                                                 FILED
                                                                            May 13, 2009
                                     No. 08-20196
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

CORNELIUS R WYATT

                                           Plaintiff-Appellant

v.

LAKE SMITH, Officer; GEORGE PAYNE, Officer

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-CV-1343


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Cornelius R. Wyatt, Texas inmate # 631802, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 action. Wyatt suffered burns when
a prison bus in which he was a passenger caught fire after a tire blew out. The
district court determined that the defendants, prison officers Lake Smith and
George Payne, were entitled to qualified immunity.
       On appeal, a grant of summary judgment is reviewed de novo using the
same standard used by the district court. Amburgey v. Corhart Refractories

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 08-20196

Corp., 936 F.2d 805, 809 (5th Cir. 1991). Summary judgment is proper when,
viewing the evidence in the light most favorable to the non-movant, there is no
genuine issue as to any material fact, and the movant is entitled to judgment as
a matter of law. Id.; F ED. R. C IV. P. 56(c).
      “Once a public official raises the defense of qualified immunity, the burden
rests on the plaintiff to rebut it.” Zarnow v. City of Wichita Falls, Tex., 500 F.3d
401, 407 (5th Cir. 2007). “On a motion for summary judgment, a plaintiff must
produce evidence showing two things: (1) that the defendants violated the
plaintiff’s constitutional rights and (2) that the violation was objectively
unreasonable.” Id.
      Wyatt argues that Smith and Payne placed him at a substantial risk of
serious harm by failing to stop the vehicle when they were aware that there was
smoke coming from the bus. However, the summary judgment evidence does not
provide a basis for finding that either Smith or Payne actually drew the
inference that inmates faced a substantial risk of serious harm based on a defect
in the bus and deliberately ignored that risk. See Farmer v. Brennan, 511 U.S.
825, 834 (1994). The evidence, at best, establishes that the defendants were
negligent in that they failed to act prudently when they were aware that a
problem with the bus had developed.              Mere negligence, however, cannot
establish a constitutional violation for deliberate indifference. See Adames v.
Perez, 331 F.3d 508, 514 (5th Cir. 2003); Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991). Wyatt has not pointed to evidence showing that Smith or Payne
violated his constitutional rights. See Zarnow, 500 F.3d at 407.
      Wyatt further argues that Smith and Payne acted with deliberate
indifference because they did not promptly move the prisoners from the bus
when the fire first started.      He notes that a third officer aboard the bus
suggested that the prisoners be moved. As Wyatt concedes, however, Smith and
Payne attempted initially to extinguish the fire. When their efforts proved
unsuccessful, the bus was then evacuated. Wyatt has not pointed to evidence

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that shows that Smith and Payne deliberately ignored a substantial risk of
serious harm. See Farmer, 511 U.S. at 834. He has failed to show that he met
his burden to overcome the defense of qualified immunity. See Zarnow, 500 F.3d
at 407.
      AFFIRMED.




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