     Case: 09-40616     Document: 00511144258          Page: 1    Date Filed: 06/16/2010




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

                                                  FILED
                                                                            June 16, 2010

                                       No. 09-40616                         Lyle W. Cayce
                                                                                 Clerk

MARQUIS K. HATTON

                                                   Plaintiff - Appellee
v.

TOMMY E. PHARIS

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:07-CV-364


Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        In this § 1983 action brought by Marquis Hatton, a state prison inmate,
against Tommy Pharis, a prison guard, Pharis challenges a five hundred dollar
judgment rendered against him following an adverse jury verdict.
        According to Hatton, a fellow inmate in an adjacent cell was heating water
with a stinger and throwing the boiling water on Hatton. Hatton relayed the
complaint to Pharis who investigated the incident. Hatton testified that Pharis
saw the burns on his body and the water in his cell but walked away without

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40616      Document: 00511144258         Page: 2     Date Filed: 06/16/2010

                                      No. 09-40616

taking any action. After Pharis left, the inmate continued to throw hot water on
Hatton. The court charged the jury that in order for Hatton to succeed in his
claim, he was required to prove that Pharis was deliberately indifferent to
plaintiff’s safety, stating,


       To make such a showing, the Plaintiff must prove by a
       preponderance of the evidence that the Defendant knew of and
       disregarded an excessive risk to his physical health or safety, and
       that he suffered harm or injury as a result. In order to show this,
       the Plaintiff must show that the Defendant was aware of facts from
       which the inference could be drawn that a substantial risk of serious
       harm exists, and also that the Defendant did in fact draw this
       inference. 1


       1
        In its entirety, the jury instruction related to deliberate indifference and Hatton’s
burden of proof stated:
              Inmates are protected from cruel and unusual punishment under the
      Eighth Amendment of the United States Constitution. With regard to the
      Plaintiff’s claim that the Defendant was deliberately indifferent to his safety,
      you are instructed that prison officials have a duty to protect inmates from
      violence at the hands of other prisoners; however, not every injury suffered by
      a prisoner at the hands of another rises to the level of a constitutional violation.
      In order to prevail, the Plaintiff must show that the Defendant acted with
      deliberate indifference to his physical health or safety.
              To make such a showing, the Plaintiff must prove by a preponderance of
      the evidence that the Defendant knew of and disregarded an excessive risk to
      his physical health or safety, and that he suffered harm or injury as a result.
      In order to show this, the Plaintiff must show that the Defendant was aware of
      facts from which the inference could be drawn that a substantial risk of serious
      harm exists, and also that the Defendant did in fact draw this inference.
              However, you are further instructed that a failure by the Defendant to
      alleviate a significant risk which he should have perceived, but did not, does not
      constitute the infliction of cruel and unusual punishment and therefore is not
      deliberate indifference to safety. Mere negligence or a lack of reasonable care
      which falls short of being deliberately indifferent does not constitute the
      infliction of cruel and unusual punishment and therefore is not deliberate
      indifference to safety.
              Thus, in order to prevail on his claim that the Defendant was
      deliberately indifferent to his safety, the Plaintiff must prove each of the
      following facts by a preponderance of the evidence:
              First: That the Defendant knew of and disregarded an excessive risk to
      Plaintiff’s safety or physical needs, and

                                          2
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                                     No. 09-40616

      With respect to Pharis’ claim that the district court should have granted
his motion for judgment as a matter of law, we are satisfied that the evidence
was sufficient for the jury to find that Pharis acted with deliberate indifference
towards Hatton.
      Pharis also objected to the court’s refusal to charge the jury that even if it
did find Pharis deliberately indifferent, it could nevertheless exonerate Pharis
if it determined that Pharis’ actions were objectively reasonable. We review a
court’s failure to give a jury charge for abuse of discretion. McCoy v. Hernandez,
203 F.3d 371, 375 (5th Cir. 2000). Here, the court was justified in refusing to
give the charge. Under the definition of deliberate indifference in the court’s
charge, the jury was required to find that Pharis knew the risk of danger Hatton
faced and disregarded that risk. See e.g. Farmer v. Brennan, 511 U.S. 825,
832–33 (1994); Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1996). As such, the
court did not abuse its discretion in concluding that an officer’s actions could not
be objectively reasonable if he acted in this deliberately indifferent manner; an
objectively reasonable officer could not treat prisoners with deliberate
indifference because he would know that such action was unlawful and
inconsistent with his obligations under the United States Constitution.
      For these reasons, we AFFIRM the judgment of the district court.




            Second: That the Plaintiff suffered actual harm as a direct result of the
      Defendant’s deliberately indifferent actions or failure to act.

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