   Case: 10-10452       Document: 00511711226         Page: 1     Date Filed: 12/30/2011




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

                                                                            FILED
                                                                        December 30, 2011
                                     No. 10-10452
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




STEPHEN C. WALKER, also known as Stephen Clayton Walker,

                                                  Plaintiff-Appellant,

versus

JOE S. NUNN, Warden, Individual and Official Capacity;
BRUCE ZELLERS, Region 5 Director,
Texas Department of Criminal Justice, Institutional Division, Official Capacity;
GLEN H. WHITFIELD, Associate Warden, Individual and Official Capacity;
SHAWN WATSON; KENNETH BURKETTE,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 2:08-CV-84




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10452    Document: 00511711226         Page: 2   Date Filed: 12/30/2011

                                  No. 10-10452

      Stephen Walker, Texas prisoner # 1417300, filed this 42 U.S.C. § 1983
suit, alleging that he had been subjected to cruel and unusual punishment in
violation of the Eighth Amendment because individuals employed by or associ-
ated with the Texas prison system deprived him of adequate sleep during his
incarceration at the Rufe Jordan Unit of the Texas Department of Criminal Jus-
tice (“TDCJ”). Walker named as defendants Joe Nunn, the warden of the unit,
in his individual and official capacity; Nathaniel Quarterman, the Director of the
TDCJ Correctional Institutions Division, in his official capacity; Bruce Zeller, a
regional director at the TDCJ, in his official capacity; Glen Whitfield, an assis-
tant warden of the unit, in his individual and official capacities; Floyd Baxter,
a health administrator at the unit, in his individual and official capacities; Nor-
vel Arnold, a major of corrections at the unit, in his individual and official capa-
cities; Shawn Watson, a safety and risk management officer for the unit, in his
official capacity; Kenneth Burkette, a factory assistant manager at the unit, in
his official capacity; and Joyce Vanderburg, a lieutenant of corrections at the
unit, in her individual and official capacities.
      Following an evidentiary hearing, the district court granted summary
judgment against Walker and dismissed his suit with prejudice. We review a
summary judgment de novo, applying the same standards as did the district
court. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). The moving party must demonstrate the absence of a gen-
uine issue of material fact, but it does not need to negate the elements of the
nonmovant’s case. Duffie v. United States, 600 F.3d 362, 371 (5th Cir.), cert.
denied, 131 S. Ct. 355 (2010). If the moving party meets this initial burden, the
burden shifts to the nonmovant to set forth specific evidence to support his
claims. Id. The nonmovant’s burden is not satisfied through a mere showing of
“some metaphysical doubt as to the material facts” or by “conclusory allega-

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tions,” “unsubstantiated assertions,” or “only a scintilla of evidence.” Id. (inter-
nal quotation marks and citation omitted). All facts and inferences are con-
strued in the light most favorable to the nonmoving party. Dillon, 596 F.3d
at 266.
      To establish an Eighth Amendment violation based on the conditions of his
confinement, a prisoner must satisfy both an objective and a subjective compon-
ent. Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995). “First, he must show
that his confinement resulted in a deprivation that was ‘objectively, sufficiently
serious.’” Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To make such a showing, the
prisoner must demonstrate that the deprivation violated contemporary stan-
dards of decency and resulted in the denial of “the minimal civilized measure of
life’s necessities.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal quotation
marks and citation omitted); see Helling v. McKinney, 509 U.S. 25, 36 (1993).
“[S]leep undoubtedly counts as one of life’s basic needs.” Harper v. Showers, 174
F.3d 716, 720 (5th Cir. 1999).
      Second, regarding the subjective component, the prisoner must show that
prison officials possessed a sufficiently culpable state of mind in that they were
deliberately indifferent to the alleged conditions. Wilson, 501 U.S. at 297-303;
Woods, 51 F.3d at 581. To establish deliberate indifference, the prisoner must
show that the official knew of and disregarded an excessive risk to inmate health
or safety. Farmer, 511 U.S. at 837. That is, the prisoner must show both that
(1) the official was aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists and (2) the official drew the inference.
Id. “Deliberate indifference is an extremely high standard to meet.” Brewster
v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009) (internal quotation marks and cita-
tion omitted).
      “In addition, prison officials who actually knew of a substantial risk to
inmate health or safety may be found free from liability if they responded rea-

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sonably to the risk, even if the harm ultimately was not averted.” Farmer, 511
U.S. at 844. “[P]rison officials who act reasonably cannot be found liable under
the Cruel and Unusual Punishments Clause.” Id. at 845. “[A] prison official
may be held liable under the Eighth Amendment for denying humane conditions
of confinement only if he knows that inmates face a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to abate
it.” Id. at 847.
      In addition to the claims he brought against the defendants in their indi-
vidual capacities, Walker sought declaratory and injunctive relief against a num-
ber of the defendants in their official capacities. Such relief was available for his
official-capacity claims if Walker were able to satisfy the objective and subjective
showings required to establish an Eighth Amendment violation. See id. at 846;
Mayfield v. Tex. Dep’t of Crim. Justice, 529 F.3d 599, 605 (5th Cir. 2008).
      Walker’s claim of inadequate sleep was based on three conditions of his
confinement: the prison schedule, noise in the prison, and misconduct by prison
staff. “[C]onditions of confinement may establish an Eighth Amendment viola-
tion ‘in combination’ when each would not do so alone, but only when they have
a mutually enforcing effect that produces the deprivation of a single, identifiable
human need . . . .” Wilson, 501 U.S. at 304; accord Gates v. Cook, 376 F.3d 323,
333 (5th Cir. 2004).
      Walker argues that the district court erred with respect to whether he was
subjected to conditions constituting an excessive risk of harm. Specifically, he
contends that the court erred in assessing the amount of time his daily schedule
allowed for sleep, because the court omitted the time he spent at the pill line and
law library; the court erred in relying on the results of noise testing reflecting
that the unit was in compliance with the noise standards of the American Cor-
rectional Association (“ACA”); the nearly one hundred unsworn declarations
under 28 U.S.C. § 1746 that Walker provided from other inmates demonstrated
that there was sleep deprivation resulting from staff misconduct, the defendants

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were aware of the misconduct and refused to address it; and the court erred in
determining that Walker’s complaints and grievances were insufficient to place
defendants on notice of a constitutional violation regarding inadequate sleep.
      At the evidentiary hearing, Nunn testified that it was necessary for the
unit to operate on a twenty-four-hour basis to perform the tasks required to keep
the prison functioning. “[C]ourts will uphold a prison regulation claimed to
infringe a prisoner’s constitutional rights if it is ‘reasonably related to legitimate
penological interests.’” Talib v. Gilley, 138 F.3d 211, 214 (5th Cir. 1998) (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)). Nunn further stated that the prison
schedule was reviewed once or twice a year, at which time all aspects of the
schedule were considered, and that the schedule was arranged to afford inmates
adequate time for sleep within each daily period.
      Additionally, though Walker complained of the opening and closing of cell
doors every hour during the day, Nunn explained that the hourly ingresses and
egresses enabled prisoners to enter and leave their cells as needed or desired
while restricting intrusion into the cells by others. Nunn testified that intercom
announcements throughout the day were necessary with the large number of
inmates at the unit, because the intercom was the means for notifying various
groups of inmates of events pertinent to their different schedules. Nunn’s testi-
mony also established that the head counts performed by the staff throughout
the day did not require active participation from inmates and that the nightly
bed-book count, which required inmates to show identification, was scheduled
in conjunction with the unit’s final rack-up to minimize the effect on sleep.
      The structure of the prison schedule, hourly ingresses and egresses, inter-
com announcements, and daily counts were reasonably related to legitimate pen-
ological interests. See id. Nunn’s testimony established the absence of a genu-
ine issue of material fact regarding whether he and the other defendants took
reasonable measures in balancing the daily activities necessary to the function-
ing of the prison and the time during which prisoners could choose to sleep. See

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Farmer, 511 U.S. at 847. Walker presented no evidence refuting Nunn’s testi-
mony on that point and thus failed to satisfy his summary judgment burden
regarding whether the defendants were deliberately indifferent to the risk of
inadequate sleep resulting from the prison schedule. See id.; Duffie, 600 F.3d
at 371.
      Walker contends that the noise readings reflecting compliance with ACA
standards were not an accurate measurement of the actual noise levels in the
prison, because the readings were taken under controlled conditions. Although
compliance with ACA standards “is not per se evidence of constitutionality,” it
may be a relevant consideration regarding whether there is an Eighth Amend-
ment violation. Gates, 376 F.3d at 337. With respect to deliberate indifference,
the relevant question is not whether the noise testing accurately measured the
noise experienced by Walker but instead whether the defendants were aware of
facts from which they could infer an excessive risk to Walker’s health or safety
and whether they actually drew such an inference. See Farmer, 511 U.S. at 837.
      Nunn’s unrefuted testimony established that there was not an overabun-
dance of inmate grievances about noise, and it was not unreasonable for Nunn
to respond to Walker’s complaints about noise by ordering testing and then rely-
ing on the results indicating compliance with ACA standards. Furthermore,
although Walker claimed that noise prevented him from being able to sleep dur-
ing the times allowed by his schedule, he does not dispute that prison officials
offered him medication to help him sleep and that ear plugs were available to
prisoners from the commissary. Walker has not satisfied his summary judgment
burden as to deliberate indifference regarding excessive noise. See Farmer, 511
U.S. at 847; Duffie, 600 F.3d at 371.
      Walker alleged that guards screamed, improperly used the intercom,
slammed cell doors, and beat on steel tables to wake and harass sleeping prison-
ers. Walker asserts that the defendants have ignored the complaints by him and
numerous other inmates about sleep deprivation from staff misconduct and have

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                                   No. 10-10452

refused to adopt a policy addressing the issue of inadequate sleep.
      The defendants may not be held vicariously liable for the misconduct of
their subordinates. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).
To hold any of the defendants liable based on a supervisory role over the prison
staff, Walker must show that (1) the defendant failed to supervise or to train the
prison staff member; (2) a causal link exists between that failure and the viola-
tion of Walker’s rights; and (3) that failure amounts to deliberate indifference.
See Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998). The defendants
may escape failure-to-supervise liability by showing that they responded reason-
ably to Walker’s complaints about staff misconduct. See id.
      Though Walker alleged that staff misconduct continued despite his com-
plaints to prison officials, including some of the defendants, he provided no evi-
dence of (1) the defendants’ actions, or lack thereof, in response to staff miscon-
duct; (2) the existence of a causal link between the occurrences of staff miscon-
duct involving Walker and the failure of the defendants to train or supervise
staff members; and (3) how defendants’ responses were unreasonable and
amounted to deliberate indifference. See id. The responses to Walker’s griev-
ances in 2007, 2008, and 2009 about misconduct reflect that his complaints were
investigated, and either no staff improprieties were found or corrective measures
were taken. Walker has not satisfied his summary judgment burden as to an
Eighth Amendment violation based on failure to supervise staff.
      Supervisory liability may also exist without overt personal participation
in the offensive act if the supervisory official “implement[ed] a policy so deficient
that the policy itself is a repudiation of constitutional rights and is the moving
force of the constitutional violation.” Thompkins, 828 F.2d at 304 (internal
quotation marks and citation omitted). Walker alleged that defendants had a
policy of depriving inmates of sleep and ignoring complaints of staff misconduct,
but he presented no admissible evidence of such policies. His conclusional
allegations and unsubstantiated assertions are not sufficient to withstand sum-

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mary judgment. See Duffie, 600 F.3d at 371.
      Walker claims the district court erred in denying his motions for addi-
tional discovery. Discovery matters are entrusted to the discretion of the district
court. Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990). “[D]iscovery rul-
ings will be reversed only where they are arbitrary or clearly unreasonable.”
Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986). The movant
“may not simply rely on vague assertions that additional discovery will produce
needed, but unspecified facts” but instead must show why he needs additional
discovery and how that discovery will create a genuine issue of material fact.
Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001) (internal
quotation marks and citation omitted).
      The magistrate judge (“MJ”) initially denied Walker’s motions for addi-
tional discovery on the ground that he had not shown a particularized need for
the discovery. Walker was subsequently asked by the MJ, at the beginning of
the evidentiary hearing, to explain what further discovery he needed, regardless
of whether it had been previously denied, to respond adequately to the motion
for summary judgment. Walker indicated that he needed no further discovery.
The court was entitled, as a matter of federal procedure, to rely on Walker’s con-
cessions in open court that he needed no additional discovery. See Ergo Science,
Inc. v. Martin, 73 F.3d 595, 598-600 (5th Cir. 1996). In any event, notwithstand-
ing Walker’s reasons for abandoning further discovery, he has never satisfied his
burden of showing why he needed the discovery and how it would have created
a genuine issue of material fact. See Beattie, 254 F.3d at 606. His bare assertion
that his requests were reasonable and set forth the reasons he needed the mate-
rial is insufficient to meet his burden; his challenge to the denial of his motions
for additional discovery is unavailing.
      Walker contends that he objected to the MJ’s order denying discovery but
that the district court never ruled on his objection. To the extent that his objec-
tions were not withdrawn based on his statements at the evidentiary hearing,

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the court implicitly overruled the objections by adopting the MJ’s report and rec-
ommendation to grant summary judgment. See Alpine View Co. v. Atlas Copco
AB, 205 F.3d 208, 220 (5th Cir. 2000). Furthermore, the district court issued a
postjudgment order denying Walker’s motion for extended discovery, in which
Walker challenged the MJ’s denial of additional discovery. There is no merit to
this contention.
      Walker maintains that the district court erred in refusing to issue a sub-
poena for Wilma Valdez, a registered nurse who worked at the unit, to appear
at the evidentiary hearing. Walker asserts that Valdez’s testimony could have
established that she placed prison officials on notice of his complaints about
sleep. This court reviews for abuse of discretion the denial of a request to sub-
poena a witness. Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004). Before we
will find abuse of discretion, “the proponent of the subpoena must show that
relevant testimony was excluded, or that a substantial need for a witness’s trial
testimony existed.” Id. Nunn’s testimony established that Watson notified him
of Walker’s complaints. Thus, it would have been merely cumulative for Valdez
to testify that she also passed along Walker’s complaints. Walker has not shown
that the court abused its discretion in denying a subpoena. See id.
      Walker challenges the district court’s determination that his amended
complaint was not competent summary judgment evidence because it was not
verified. He moves to supplement the record with the page of his amended com-
plaint containing his verification, which page apparently was missing in the
pleading considered by the district court. The allegations in a verified complaint
may be considered competent summary judgment evidence. See Hernandez, 522
F.3d at 561. Regardless of whether Walker’s amended complaint is considered
verified, statements by others recounted in his amended complaint were not
admissible to prove the truth of the matter asserted and could not be considered
as evidence for that purpose on summary judgment. See FED. R. EVID. 801(c);
Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 124-25 (5th Cir. 2011). Even

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considering Walker’s amended complaint as verified for purposes of his argu-
ments on appeal, Walker has failed to satisfy his burden on summary judgment
as to whether the defendants were deliberately indifferent to his complaints of
inadequate sleep. Accordingly, this argument is unavailing.
      In summary, the motion for leave to supplement the record is DENIED.
The judgment is AFFIRMED.




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