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

                                                                            FILED
                                                                           March 4, 2013

                                       No. 11-20628                        Lyle W. Cayce
                                                                                Clerk

MARY WALKER, Individually and as a Personal Representative of the
Estate of Michael Dewayne Walker; MICHAEL SPENCER, Individually and
as a Personal Representative of the Estate of Michael Dewayne Walker,

                                                  Plaintiffs–Appellees,

v.

MICHAEL UPSHAW, Warden of Ferguson Unit,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:08-CV-530


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       This case is before the court on interlocutory appeal from the district
court’s denial of summary judgment based on qualified immunity. The district
court denied Warden Michael Upshaw’s motion for summary judgment because
it concluded there were facts to support that Upshaw, through his failure to
train and supervise his staff, was deliberately indifferent to inmate Michael

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dewayne Walker’s right to be free from cruel and unusual punishment. We
reverse.
                                        I
      Plaintiffs–Appellees Mary Walker and Michael Spencer (Plaintiffs) filed
suit under 42 U.S.C. § 1983 individually and as personal representatives of the
estate of their son, Michael Dewayne Walker (Walker), for Walker’s alleged
wrongful death while in custody of the Texas Department of Criminal Justice
(TDCJ). Walker was serving a twenty-year prison sentence after being convicted
for aggravated sexual assault of a child and was assigned to the TDCJ’s
Ferguson Unit in Midway, Texas. Walker was placed in a cell with Wilber
“Peanut” Hamilton (Hamilton). In the early morning hours the following day,
Walker was pronounced dead after having been stomped and kicked to death by
Hamilton.
      Plaintiffs sued the TDCJ, supervisory officials, and correctional officers
alleging that their failure to protect Walker resulted in his wrongful death.
Initially, Plaintiffs advanced multiple theories of recovery including violations
of Walker’s rights under the First, Fourth, Eighth, and Fourteenth
Amendments. After multiple pretrial motions, the only remaining claims are
against three correctional officers on duty the night Walker died and Appellant
Michael Upshaw (Upshaw) for their alleged violation of Walker’s Eighth
Amendment right to be free from cruel and unusual punishment. Upshaw was
the warden at the Ferguson Unit when Walker was killed. Plaintiffs contend
that Walker’s death was caused by, among other things, Upshaw’s failure to
train and supervise the correctional officers and his failure to enforce or adopt
adequate policies to ensure Walker’s safety.
      Upshaw and other defendants filed a motion for summary judgment based
on qualified immunity. The district court denied the motion. It held that
“significant factual issues prevent a determination that the supervisors’ conduct

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                                      No. 11-20628
was objectively reasonable in light of clearly established law” and determined
that Plaintiffs were entitled to more discovery on the issue. The district court
also held that “because genuine issues of material fact remain concerning the
deficient policies implemented and enforced at the Ferguson Unit . . . , the
supervisory officials are not entitled to qualified immunity.”
       Upshaw, along with the other defendants, filed an interlocutory appeal of
the denial. This court dismissed a portion of Plaintiffs’ complaint against
several parties and remanded so that Upshaw and two correctional officers who
were on duty at the time of Walker’s death could “be deposed to determine
whether they had an actual subjective awareness of the danger to Walker and
if so, whether they were deliberately indifferent to that danger of which they
were actually subjectively aware.”
       After Upshaw was deposed, he filed a second motion for summary
judgment based on qualified immunity. Again, the district court denied his
motion. The district court held that it was “unclear whether [Upshaw] failed to
adequately train the prison staff under his supervision” and noted that
“plaintiffs have offered expert testimony that Upshaw failed to adequately train
and supervise his staff.” Though claims remain pending against the correctional
officers, only Upshaw is a party to this appeal.
                                            II
       “The denial of a motion for summary judgment based on qualified
immunity is immediately appealable notwithstanding that such denial was
premised upon the existence of ‘[m]aterial issues of fact.’”1 “We determine
whether a denial of summary judgment based on qualified immunity is




       1
        Thompson v. Upshur Cnty., 245 F.3d 447, 455 (5th Cir. 2001) (alteration in original)
(quoting Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).

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immediately appealable by ‘look[ing] at the legal argument advanced.’”2 “Facts
are material if they might affect the outcome of the lawsuit under the governing
law.”3 A party “challenges materiality when he contends that taking all the
plaintiff’s factual allegations as true no violation of a clearly established right
was shown.”4 “Because this court has jurisdiction only to review the questions
of law posed by the district court’s denial of summary judgment based on the
defense of qualified immunity, this court will ignore the disputes of fact, take
those facts assumed by the district court in a light most favorable to [plaintiffs],
and determine whether those facts establish an exception to the qualified
immunity defense.”5
       The district court offered no assumed facts to support its conclusion that
fact issues remained concerning whether Upshaw failed to train and supervise
his staff adequately other than stating, “Plaintiffs have offered expert testimony
that Upshaw failed to adequately train and supervise his staff.” “Standing
alone, an expert’s opinion is generally not enough to establish deliberate
indifference.”6 “Ideally, the district court’s order denying summary judgment
based on qualified immunity explains what facts the plaintiff may be able to
prove at trial, i.e. what particular facts the court assumed in denying summary



       2
        Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 379 (5th Cir.
2005) (alteration in original) (quoting Reyes v. City of Richmond, 287 F.3d 346, 350 (5th Cir.
2002)).
       3
        Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
       4
       Estate of Davis, 406 F.3d at 379 (quoting Reyes, 287 F.3d at 351) (internal quotation
marks omitted).
       5
        Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 552 (5th Cir. 1997) (quoting
Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th Cir. 1996)) (internal quotation marks
omitted).
       6
           Thompson, 245 F.3d at 459.

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                                         No. 11-20628
judgment urged on the basis of qualified immunity.”7 When the district court
does not do so, we have two choices: “scour the record and determine what facts
the plaintiff may be able to prove at trial and proceed to resolve the legal issues,
or remand so that the trial court can clarify the order.”8 We do not believe
remand is necessary here. Even accepting all of Plaintiffs’ evidence as true and
considering it as a whole, the facts do not support a finding of Upshaw’s
deliberate indifference.
      The evidence, taken in the light most favorable to Plaintiffs, reflects
that Hamilton had a history of violence, attempted to kill another cellmate the
same way he used his prison-issued boots to kill Walker, and was in
administrative segregation for over six years. Hamilton’s fear of other inmates
was documented in his files. Plaintiffs also offered evidence that other inmates
and prison administrators knew of and reported Hamilton’s history of assaulting
cellmates. One inmate testified that it would take no more than thirty or forty
minutes for a fight to break out after Hamilton received a cellmate. After such
a fight, the prison staff would segregate Hamilton for fifteen days, return him
to a cell with another cellmate, and the process would repeat again. Conversely,
these same inmates reported Walker as being “laid back” and “stay[ing] to
himself.” Evidence further suggests that Walker would have been classified as
“vulnerable” under the Safe Prisons Program. Finally, inmates testified that
there were several empty cells on the 3 Row of B Block, meaning it was
unnecessary to put Hamilton and Walker in the same cell.
      As for the night of the attack, Plaintiffs offered evidence that Hamilton
warned the staff that “violence is going to happen” and that Hamilton told
officers, “If you put him in here, I’m going to kill him.” There is also evidence


      7
          Id. at 456.
      8
          Id. (citing Behrens, 516 U.S. at 842).

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that Walker was crying for help for at least three hours and that no guards
checked on him during this time. After the attack, an inmate testified that one
of Upshaw’s subordinates encouraged inmates to change their reports of the
incident to state that a guard or rover completed his round every fifteen minutes
that night to “make it look good for her behalf and her officers.”
      As for prison conditions, the row on which Hamilton and Walker were
housed had no air conditioning and was farthest from the fans, making it the
hottest area of the unit in July. Upshaw testified that he was unaware of a
policy requiring inmates such as Hamilton, who may have been taking
psychotropic medication, to be housed in areas that would not be as hot as the
3 Row of B Block. Further, a guard testified that Ferguson was known as a
“gladiator” prison for being a “rough unit.”
      All parties agree that Upshaw had no actual, subjective knowledge of
Walker’s situation on the night of his death. In fact, the undisputed evidence
reveals that Upshaw was at home in bed the night of Walker’s death. With
respect to policies, Upshaw testified that as senior warden of the Ferguson Unit,
he was responsible for the “overall operation of the facility, all aspects of it.”
When asked about the boots Hamilton wore, Upshaw explained that while soft,
canvas shoes—as opposed to the work boots Hamilton had—are available, they
are usually only an option for inmates in administrative segregation. Upshaw
also stated, “I’ve had a lot of inmate assaults where shoes or boots, even tennis
shoes, were used; but none . . . that resulted in the death of an offender.”
      Plaintiffs submitted an expert report by Charles Montgomery, which
concluded that Upshaw, as the primary policymaker overseeing the Ferguson
Unit, “failed to ensure that the necessary steps were taken insofar as the
supervision, training, and/or discipline of guards” and that “Upshaw’s deposition
testimony regarding [his handling of threats against cell mates was] utterly
preposterous.” Plaintiffs rely on this expert report to contend that Upshaw’s

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                                              No. 11-20628
policy of handling an inmate’s threat against another inmate was to take
investigative and corrective measures for a specific threat but not if the threat
was more general.
                                                    III
          The doctrine of qualified immunity grants “government officials
performing discretionary functions” a shield from liability for civil damages as
long “as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”9 “The
first step in the qualified immunity analysis is to determine whether the
plaintiff has alleged the violation of a clearly established federal constitutional
. . . right.”10 An official need not demonstrate that he did not violate clearly
established federal rights; this burden is placed upon the plaintiffs.11 Once the
plaintiff has discharged that burden, “the Court must then assess whether the
defendant’s conduct was objectively reasonable in light of clearly established
law.”12
          It is well established that “prison officials have a duty . . . to
protect prisoners from violence at the hands of other prisoners.”13 “It is not,
however, every injury suffered by one prisoner at the hands of another that
translates into constitutional liability for prison officials responsible for the


          9
         Estate of Davis, 406 F.3d at 380 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)) (internal quotation marks omitted).
          10
          Thompson, 245 F.3d at 457 (citing Hare v. City of Corinth, 135 F.3d 320, 325 (5th
Cir. 1998)).
          11
               Estate of Davis, 406 F.3d at 380 (citing Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir.
1997)).
          12
               Thompson, 245 F.3d at 457 (citing Hare, 135 F.3d at 326).
          13
         Farmer v. Brennan, 511 U.S. 825, 832 (1994) (alteration in original) (quoting Cortes-
Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)) (internal quotation marks
omitted).

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                                             No. 11-20628
victim’s safety.”14 A prison official violates the Eighth Amendment only when
the inmate shows that (1) he was incarcerated under conditions the official knew
posed “a substantial risk of serious harm” and (2) the prison official was
deliberately indifferent to such risk.15                   An official acts with deliberate
indifference if he is “aware of an ‘excessive risk to inmate . . . safety’ and
disregards that risk.”16
          Supervisory officials may not be held liable under § 1983 for the actions
of their subordinates under any theory of vicarious liability.17 When, as here,
plaintiffs allege that a supervisory official failed to train or supervise, they must
prove that (1) the official failed to train or supervise the correctional officers,
(2) a causal link exists between the failure to train or supervise and the alleged
violation of the inmate’s rights, and (3) the failure to train or supervise
amounted to deliberate indifference.18 To hold Upshaw liable on account of
inadequate policy, Plaintiffs must show “(1) that the policy itself violated federal
law or authorized or directed the deprivation of federal rights or (2) that the
policy was adopted or maintained by the municipality’s policymakers with
deliberate indifference as to its known or obvious consequences.”19


          14
               Id. at 834.
          15
               Id.
          16
               Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006) (quoting Farmer, 511 U.S. at
837).
          17
               Thompson, 245 F.3d at 459 (citing Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.
1987)).
          18
               Id. (citing Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998)).
          19
          Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309
(5th Cir. 2004) (quoting Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 423 (1997))
(internal quotation marks omitted). Although Johnson speaks to municipal liability, this court
has noted “the close relationship between the elements of municipal liability and an individual
supervisor’s liability” and held that “the same standards of fault and causation should govern.”
Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 551 (5th Cir. 1997) (quoting Doe v.

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       Whether the evidence sufficiently “demonstrate[s] deliberate indifference
for supervisory liability is a legal issue that this court may review on
interlocutory appeal.”20 We review de novo “the scope of clearly established law
and the objective reasonableness of those acts of the defendant that the district
court found the plaintiff could prove at trial.”21 In other words, “review of the
district      court’s   conclusions     concerning      the   legal     consequences—the
materiality—of the facts” is de novo.22
                                              IV
       The parties agree that Upshaw had no actual knowledge of Hamilton’s
prior attack of an inmate with his boots in a different unit years prior to
Walker’s death and that Upshaw was not at the prison the night Walker died.
Because Upshaw had no actual knowledge of the danger posed to Walker, any
attempt to hold Upshaw liable for a personal failure to protect Walker would
fail.23 Instead, plaintiffs claim that Upshaw is liable for his failure to train and
supervise subordinates and his failure to implement adequate policies.
                                               A
       “[D]eliberate indifference is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his




Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994) (en banc)) (internal quotation marks
omitted); see also Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (“The
standard applicable to failure to train allegations against supervisors is based on that for
municipal liability.”).
       20
         Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 379 (5th
Cir. 2005) (citing Gros v. City of Grand Prairie, 209 F.3d 431, 436 (5th Cir. 2000)).
       21
            Thompson, 245 F.3d at 456 (citing Johnson v. Jones, 515 U.S. 304, 312 (1995)).
       22
         Estate of Davis, 406 F.3d at 379-80 (citing Kinney v. Weaver, 367 F.3d 337, 348 (5th
Cir. 2004) (en banc)) (internal quotation marks omitted).
       23
            See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).

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                                         No. 11-20628
action.”24 “Actions and decisions by officials that are merely inept, erroneous,
ineffective, or negligent do not amount to deliberate indifference and do not
divest officials of qualified immunity.”25 “Proof of more than a single instance of
the lack of training or supervision causing a violation of constitutional rights is
normally required before such lack of training or supervision constitutes
deliberate indifference.”26 “The plaintiff must generally demonstrate at least a
pattern of similar violations . . . [and] the inadequacy of training must be
obvious and obviously likely to result in a constitutional violation.”27
       “[C]ulpability for a deprivation of rights is at its most tenuous where a
claim turns on a failure to train.”28 “[A] showing of deliberate indifference
requires that the Plaintiffs ‘show that the failure to train reflects a deliberate or
conscious choice to endanger constitutional rights.’”29 It is well accepted that a
“pattern of similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to
train.”30 “Without notice that a course of training is deficient in a particular




       24
         Estate of Davis, 406 F.3d at 381 (alteration in original) (quoting Bryan Cnty., 520
U.S. at 410) (internal quotation marks omitted).
       25
            Id. (quoting Alton v. Tex. A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999)).
       26
         Thompson, 245 F.3d at 459 (citing Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th
Cir. 1998)).
       27
            Id.
       28
         Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (citing Okla. City v. Tuttle, 471
U.S. 808, 822-23 (1985) (plurality opinion)).
       29
         Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th
Cir. 2005) (quoting Snyder, 142 F.3d at 799).
       30
         Connick, 131 S. Ct. at 1360 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,
520 U.S. 397, 409 (1997)).

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                                       No. 11-20628
respect, decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.”31
       Although supervisor liability stems from a supervisor’s deliberate
indifference to the violations his training causes,32 Plaintiffs do not seem to base
their claim against Upshaw on the actions or inactions of Upshaw’s employees
due to his training. Plaintiffs make no attempt to show a pattern of Upshaw’s
employees failing to protect inmates. In fact, they acknowledge that “normally,
the rover on night patrol would come by every 15 to 20 minutes.” This suggests
that Upshaw’s training was usually effective but that his subordinates’ failure
to make timely rounds the night Walker died played a significant role in
Walker’s death. Plaintiffs instead focus on Hamilton’s violence and the fact that
Upshaw, through his training and supervision of his employees, failed to prevent
it. However, “mere proof that the injury could have been prevented if the officer
had received better or additional training cannot, without more, support
liability.”33
       The Supreme Court has acknowledged that “in a narrow range of
circumstances, a pattern of similar violations might not be necessary to show
deliberate indifference.”34        In so acknowledging, the Court discussed the
hypothetical posed in City of Canton v. Harris35 in which a city would arm its
police force with firearms and employ the officers to capture fleeing felons
without training the officers “in the constitutional limitation on the use of deadly


       31
            Id.
       32
            See Thompson, 245 F.3d at 459.
       33
         Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (citing Snyder, 142
F.3d at 798).
       34
          Connick v. Thompson, 131 S. Ct. 1350, 1361 (2011) (quoting Bryan Cnty., 520 U.S.
at 409) (internal quotation marks omitted).
       35
            489 U.S. 378 (1989).

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force.”36 In such an instance, “[g]iven the known frequency with which police
attempt to arrest fleeing felons and the predictability that an officer lacking
specific tools to handle that situation will violate citizens’ rights, . . . the
unconstitutional consequences of failing to train could be so patently obvious
that a city could be liable under § 1983 without proof of a pre-existing pattern
of violations.”37
       However, the Court stressed that the possibility of “single-incident
liability” based on a failure to train is “rare,”38 and this circuit has similarly
“stressed that a single incident is usually insufficient to demonstrate deliberate
indifference.”39 Plaintiffs’ claims fall far short of the hypothetical offered in
Canton in which the officers were offered no training in a highly dangerous
situation. The evidence does not meet the requirements for single-incident
liability.
                                                B
       Similarly, demonstrating that a policy reflects deliberate indifference
“generally requires that a plaintiff demonstrate at least a pattern of similar
violations.”40 Plaintiffs do not identify policies that Upshaw created or failed to
enforce. Instead, they rely on Upshaw’s statement that he oversaw the Ferguson
Unit to assert that Upshaw was deliberately indifferent in failing to enforce or
create an adequate policy that would have prevented Hamilton from having


       36
            Connick, 131 S. Ct. at 1361 (citing Canton, 489 U.S. at 390 n.10).
       37
            Id. (quoting Bryan Cnty., 520 U.S. at 409) (internal quotation marks omitted).
       38
            Id. at 1361.
       39
          Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th
Cir. 2005).
       40
          Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309
(5th Cir. 2004) (quoting Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003))
(internal quotation marks omitted).

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work boots, a cellmate, and being in a hot, uncomfortable cell that would
promote violence given his mental history.
      Upshaw admitted to knowing that inmates have used their shoes to hurt
other inmates, but he had no actual knowledge of Hamilton’s prior
transgressions. This, however, focuses on actions of inmates and fails to identify
any prior constitutional violations resulting from Upshaw’s policies. Again, this
falls short of the standard required to show that Upshaw maintained a policy
with deliberate indifference to its known or obvious consequences.41
                                      *        *         *
      For the foregoing reasons, we REVERSE the district court’s judgment and
RENDER judgment in favor of Upshaw.




      41
           See id. at 310.

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