     Case: 10-31037     Document: 00511732244         Page: 1     Date Filed: 01/20/2012




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

                                                                            FILED
                                                                         January 20, 2012

                                       No. 10-31037                        Lyle W. Cayce
                                                                                Clerk

RONNIE L. MORGAN, JR.,

                                                  Plaintiff–Appellee
v.

CORNEL HUBERT, Warden, Elayn Hunt Correctional Center

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:06-CV-5700


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
        In the aftermath of Hurricane Katrina, nearly 8,000 prisoners were
evacuated from Orleans and Jefferson Parishes to Elayn Hunt Correctional
Center (“EHCC”), which was then run by Warden Cornel Hubert, the Appellant.
Appellee Ronnie Morgan Jr. was one such prisoner. When Morgan arrived at
EHCC, he asked to be segregated from the general prison population due to his
protective-custody status. He did not receive protective custody, but was instead
placed in the recreation yard with the other evacuees, and thirty minutes after

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-31037

being placed in the yard, he was assaulted. He brought suit under 42 U.S.C.
§ 1983, claiming that Hubert violated his Eighth Amendment right to be
protected from inmate violence. Hubert moved for summary judgment based on
qualified immunity, and the district court denied that motion. Because we find
that Hubert was not deliberately indifferent, we REVERSE the district court’s
denial of summary judgment to Hubert.
                              I. BACKGROUND
A.      Factual Background
        When Hurricane Katrina hit New Orleans and the surrounding area on
August 29, 2005, Morgan was an inmate at the Orleans Parish Criminal
Sheriff’s Office’s House of Detention. Morgan had been sentenced to federal
custody, but at that time was being held in protective custody by Orleans Parish.
When the levees broke, the sheriffs of Orleans Parish and neighboring Jefferson
Parish requested assistance from the Louisiana Department of Public Safety and
Corrections (“DPSC”), then-headed by Richard Stadler.
        EHCC was the closest state prison to New Orleans that did not suffer any
major damage from Hurricane Katrina. Due to this, on the night of August 29,
2005, DPSC informed Hubert that Jefferson and Orleans Parishes would be
evacuating to EHCC. EHCC was to be used primarily as a reception center from
which prisoners would be dispatched to other DPSC state prisons. The first
buses of evacuees from Jefferson Parish arrived just hours after DPSC informed
Hubert of the evacuations. The evacuation of Jefferson Parish and then Orleans
Parish continued around-the-clock for about four days, and the total number of
evacuees that passed through EHCC was close to 8,000.
        To deal with this massive evacuation, Hubert instituted a number of
policies. Each prisoner was searched for weapons upon boarding a bus from New
Orleans and searched again upon arrival at EHCC. Prisoners were given food,
water, and, if necessary, clean clothing. The first-arriving Jefferson Parish

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                                 No. 10-31037

prisoners came with their records, and EHCC staff conducted classification
procedures to identify the prisoners, paying special attention to medical and
mental health needs. Once EHCC staff completed these procedures, they sent
the evacuees to the large, main recreation yard, where Hubert felt it would be
easiest to maintain order over the ever-increasing number of temporary inmates
at EHCC.
      Unlike those prisoners arriving from Jefferson Parish, the Orleans Parish
prisoners did not arrive at EHCC with their records but showed up only with
wristbands supposedly identifying them by name and charge.           The major
problem with the wristbands was that the Orleans prisoners traded them,
leading to a significant number of effectively anonymous prisoners. At the
beginning of the Orleans Parish evacuation, EHCC staff tried to do limited
classification of the Orleans evacuees by name, medical or mental health needs,
and any concerns expressed by the prisoner. Although it is disputed why this
limited classification of Orleans prisoners stopped, it is undisputed that on the
third day of evacuation (September 1, 2005) even these limited classification
procedures were suspended. Hubert claims that after the suspension of the
classification procedures, however, he instructed his staff to report any special
needs request for protective custody up the chain of command, adding that such
requests would be investigated, and if substantiated, would be accomodated.
      It was on this third day of the evacuation that Morgan arrived at EHCC
from Orleans Parish. Upon his arrival to EHCC, Morgan informed prison
officials that he was a protective-custody inmate and that his safety would be at
risk if he were placed in the recreation yard alongside thousands of general
population prisoners. According to Morgan, all that EHCC prison officials did
in response to this information was advise him not to tell other prisoners that
he was a protective-custody prisoner. Morgan and other protective-custody
prisoners asked EHCC officials to talk to the Orleans Parish guards on their bus

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                                  No. 10-31037

to verify that they needed protection, but EHCC officials chose not to do so.
When Morgan and the other protective-custody prisoners were led from the bus
to the recreation yard, the general population inmates called to one another
about the arrival of protective-custody prisoners and began gathering at the
gate. Another protective-custody prisoner from Morgan’s bus, Wayne Priestly,
told the EHCC official he could see his enemies and would be attacked if placed
on the field. Despite this, the protective-custody inmates were ordered onto the
field; Priestly was stabbed within seconds. Within thirty minutes, Morgan was
stabbed in the head by an unidentified inmate. He made his way to the gate and
asked the guards for help. The EHCC guards refused to help Morgan and left
him bleeding on the field overnight; Morgan does not allege that he was attacked
again that night.
B.      Procedural Background
        On September 1, 2006, Morgan filed this suit under § 1983 alleging a
violation of his rights under the Eighth Amendment. Hubert filed a motion to
dismiss based on qualified immunity. The magistrate judge recommended
granting this motion as to Morgan’s official capacity claims but denying the
motion as to Morgan’s individual capacity claims, and the district court did so.
Morgan appealed that order to the Fifth Circuit. After oral argument, a panel
of this Court held that the relevant law was clearly established, and that the
guards’ actions put Morgan at substantial risk (based on the facts alleged in the
complaint). Morgan v. Hubert, 335 F. App’x 466, 471 (5th Cir. 2009). The panel
held, however, that additional specificity was required to evaluate the
reasonableness of Hubert’s actions in light of the clearly-established
constitutional right. Id. at 472–73. The case was remanded to the district court
for limited discovery as to qualified immunity.
        Morgan complied with a district court order to file a heightened Schultea
pleading that included more specificity. See Schultea v. Wood, 47 F.3d 1427 (5th

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Cir. 1995) (en banc). The district court transformed Hubert’s motion to dismiss
into a motion for summary judgment, and afforded both parties additional time
to submit additional evidence. After considering their submissions, the district
court denied the motion. Hubert timely filed this interlocutory appeal.
           II. JURISDICTION AND STANDARDS OF REVIEW
      We have jurisdiction to hear an interlocutory appeal from an order denying
qualified immunity to the extent it turns on a question of law. Behrens v.
Pelletier, 516 U.S. 299, 311 (1996). We must “‘accept the plaintiff’s version of the
facts as true’ and may review de novo only the purely legal question of whether
‘the district court erred in concluding as a matter of law that officials are not
entitled to qualified immunity on [that] given set of facts.’” Gobert v. Caldwell,
463 F.3d 339, 345 (5th Cir. 2006) (quoting Kinney v. Weaver, 367 F.3d 337, 347
(5th Cir. 2004) (en banc)) (alteration in original).
                               III. DISCUSSION
      We use a two-prong test to determine whether an official is entitled to
qualified immunity: “(1) whether the plaintiff has alleged a violation of a clearly
established constitutional right; and (2) if so, whether the defendant’s conduct
was objectively unreasonable in light of the clearly established law at the time
of the incident.” Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 (5th
Cir. 2000) (citation omitted).     In the context of the      Eighth Amendment
guarantee of protection from inmate violence, this second prong has two
subparts. Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the plaintiff must
show that there was a “substantial risk of serious harm.” Id. (citation omitted).
Second, the plaintiff must show that the prison official was deliberately
indifferent to that risk. This is shown by proving “the official 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.” Id. at 837. Hubert

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challenges the district court’s denial of qualified immunity under the first prong
and both subparts of the second prong.
A.      Clearly Established Law
        The previous panel in this case held that the Eighth Amendment
guarantee of protection from inmate violence was clearly established. Morgan,
335 F. App’x at 471. This holding, therefore, is the law of the case. See
Fuhrman v. Dretke, 442 F.3d 893, 896 (5th Cir. 2006) (“The law of the case
doctrine provides that ‘an issue of law or fact decided on appeal may not be
reexamined either by the district court on remand or by the appellate court on
a subsequent appeal.’”) (citation omitted). This rule is grounded in the policy of
finality—once an issue has been decided in the litigation it should not be
reexamined—and is subject to few exceptions. See Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 816 (1988); Furhman, 442 F.3d at 897
(enumerating the exceptions). Because none of the exceptions are applicable to
the present case, we decline, as Hubert has requested, to reexamine the previous
panel’s holding that the Eighth Amendment guarantee of protection from inmate
violence was clearly established.
B.      Substantial Risk of Serious Harm
        To survive a qualified immunity claim, Morgan must show that Hubert’s
actions (or omissions) “resulted in the denial of the minimal civilized measure
of life’s necessities.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577,
589 (5th Cir. 2004) (internal quotation marks and citations omitted).** Those


        **
         Morgan urges us to dispose of Hubert’s second challenge to the district court’s denial
based on the law of the case as well because the previous panel stated: “We are of the opinion
that placing Morgan, a prisoner in protective custody at the time, on the field with the general
prison population created an objective and substantial risk to his safety.” Morgan, 335 F.
App’x at 471. This opinion was based only on the facts as alleged in Morgan’s complaint. As
this appeal comes to us on summary judgment with a supplemented record, we cannot rely on
the law of the case. Cf. Furman, 442 F.3d at 897 (explaining that where the evidence is
substantially different on the second appeal, law of the case is excepted).

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necessities include “food, clothing, shelter, medical care, and reasonable safety.”
Shephard v. Dall. Cnty., 591 F.3d 445, 454 (5th Cir. 2009) (quoting Hare v. City
of Corinth, 74 F.3d 633, 639 (5th Cir. 1996)). The Supreme Court has noted that
“[p]rison conditions may be ‘restrictive and even harsh,’” Farmer, 511 U.S. at 833
(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)), but that conditions must
not include prisoners “[b]eing violently assaulted,” as that serves no legitimate
purpose. Id. at 834 (citation omitted). Morgan’s assault while in the recreation
yard at EHCC is undisputed and unquestionably rises to the level of serious
harm. The closer question, as the previous panel acknowledged, is “whether
placing Morgan in a field with the general prison population raised a substantial
risk of that harm.” Morgan, 335 F. App’x at 471.
      We recognize that “[c]lassification of prisoners is a matter left to the
discretion of prison officials.” McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir.
1990) (citing Wilkerson v. Maggio, 703 F.2d 909 (5th Cir. 1983)). Though
admittedly there are varying levels of protective custody in the DPSC system,
the goal of all protective custody is “to provide enhanced safety for likely targets
of inmate violence,” whether through segregation from the general population
or other measures. James E. Robertson, The Constitution in Protective Custody:
An Analysis of the Rights of Protective Custody Inmates, 56 U. Cin. L. Rev. 91,
91 (1987). When an inmate has been previously classified as needing protective
custody, placing that inmate into the general population would make the
protective-custody inmate susceptible to a risk of harm. If this were not the
case, the original assignment into protective custody would have been
unnecessary.
      The nature of that risk—whether it is substantial or not—in any given
case is ultimately a question of context and is susceptible to evaluations of
“contemporary standards of decency.” Horton v. Cockrell, 70 F.3d 397, 401 (5th
Cir. 1995) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)) (internal

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quotation marks omitted). Hubert urges us to consider the treatment afforded
to Morgan in the context of the aftermath of Hurricane Katrina and to consider
the hardships faced by the non-prison population during that time. While we
recognize that the situation in those early days after the storm hit was
devastating on a grand scale and we appreciate the efforts undertaken by prison
officials in orchestrating such a large evacuation with minimal issues, the
comparison to the non-prison population is inapt here. Such concerns and
considerations better fit within the deliberate indifference subpart of the
constitutional violation prong.
        The more pertinent context is the one that faced Morgan as he stepped off
the bus. Morgan informed the guards that he was a protective-custody inmate.
Members of the general population in the recreation yard were threatening the
protective-custody prisoners. Morgan and other protective-custody prisoners
were wearing clothing that made them stick out from the rest of the prisoners.
Additionally, Priestly, another protective-custody prisoner, was attacked
immediately upon entering the recreation yard. In this context, the risk of
serious harm that Morgan faced by being placed in the recreation yard with the
general prison population was substantial.
C.      Deliberate Indifference
        “Deliberate indifference [lies] somewhere between the poles of negligence
at one end and purpose or knowledge at the other.” Farmer, 511 U.S. at 836
(citation and internal quotation marks omitted). As we noted in Gobert, this is
an “extremely high standard to meet,” 463 F.3d at 346, because it requires
showing that the prison official “knows of and disregards” the substantial risk
of serious harm facing the inmate. Farmer, 511 U.S. at 837. The core of this
requirement is that the prison official had knowledge of the risk faced by
inmates and responded unreasonably. See id. at 845. This is not something that
Morgan can prove. After suspending normal classification procedures, Hubert

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told his staff to report any requests for protective custody up the chain of
command for further investigation. We have previously held that prison officials
who referred prisoners’ claimed needs for protective custody for further
investigation were not deliberately indifferent. See Johnson v. Johnson, 385
F.3d 503, 526 (5th Cir. 2004). In light of the chaos that Hubert faced due to
Hurricane Katrina, we cannot say that his policy of referring protective-custody
claims for further investigation was deliberately indifferent.     See Terry v.
Hubert, 609 F.3d 757, 763 (5th Cir. 2010) (“We cannot ignore the implication
favoring immunity in the context in which the normal operating procedures
must yield, because of necessity, to improvisation,” especially in light of the
devastation wrought by Hurricane Katrina.). Therefore, we find that Hubert
was entitled to qualified immunity and REVERSE the district court’s denial of
Hubert’s motion for summary judgment.
      REVERSED.




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