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

                                                 FILED
                                                                          February 23, 2009
                                     No. 08-60127
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

MARCUS B GORDON, SR

                                                   Plaintiff-Appellee

v.

UNKNOWN PETTIFORD

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 5:04-CV-224


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Marcus B. Gordon, Sr., former federal prisoner # 10255-035, brought suit
under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), against Warden Michael Pettiford and other officials at the
Yazoo City Federal Correctional Institute (FCI -Yazoo), alleging that they
violated the Eighth Amendment by depriving him of the use of a top blanket
after it had been authorized by a medical doctor. Pettiford appeals the district
court’s denial of his motion for summary judgment based on qualified immunity.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60127

      A district court’s order denying qualified immunity is immediately
appealable only to the extent that it turns on an issue of law, not fact. Easter v.
Powell, 467 F.3d 459, 462 (5th Cir. 2006). Thus, this court has jurisdiction only
to determine whether, viewing the facts most favorable to Gordon, Pettiford is
entitled to qualified immunity as a matter of law. See id. This court does not
have jurisdiction to determine whether the evidence is sufficient to support
either party’s version of the facts. Id. The district court’s denial of the motion
for summary judgment asserting qualified immunity is reviewed de novo. Id.
      Because Pettiford asserted qualified immunity, the first question that
must be considered is whether his conduct violated a clearly established
statutory or constitutional right of which a reasonable person would have
known. See Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006). To be clearly
established for purposes of qualified immunity, the contours of the right must
be sufficiently clear that a reasonable official would understand that what he is
doing violates the defendant’s rights. Johnson v. Johnson, 385 F.3d 503, 524
(5th Cir. 2004). “Of course, the defendant’s conduct cannot constitute a violation
of clearly established law if, on the plaintiff’s version of the facts, there is no
violation at all.” Id. at 525. This court must thus initially ask whether the
challenged conduct actually presents a violation of federal law.        Id. (citing
Siegert v. Gilley, 500 U.S. 226, 232 (1991)).
      The central inquiry in any Eighth Amendment claim is whether the
defendant acted with deliberate indifference to the inmate’s health or safety.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference is a
legal conclusion which must rest on facts evincing wanton action on the part of
the defendant. Walker v. Butler, 967 F.2d 176, 178 (5th Cir. 1992); see also
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)
(conduct must clearly evince wanton disregard). “[S]ubjective recklessness as
used in the criminal law” is the appropriate test for deliberate indifference.
Farmer, 511 U.S. at 839-40. A prison official acts with deliberate indifference

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                                  No. 08-60127

only if he knows that inmates face a substantial risk of serious harm and
disregards that risk. Id. at 847. “[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 he must also draw the inference.” Id. at 837. A prison official’s
knowledge of a substantial risk of serious harm may be inferred if the risk is
obvious. Id. at 842-43.
      A review of the record indicates that the district court employed an
objective standard for deliberate indifference rather than a subjective one. The
Supreme Court has explicitly rejected an objective test for deliberate
indifference. Id. The record contains nothing to support the determination that
Warden Pettiford drew an inference that his actions exposed Gordon to a
substantial risk of serious harm and, thus, acted with deliberate indifference.
Because Gordon has not made a threshold showing that Pettiford violated his
Eighth Amendment rights, this court need not proceed further in the qualified
immunity inquiry. The judgment of the district court is REVERSED and the
case REMANDED to the district court for dismissal of the claims.




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