     Case: 12-60933    Document: 00513132944    Page: 1   Date Filed: 07/28/2015




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

                                                                           FILED
                                                                        July 28, 2015
                                 No. 12-60933
                                                                        Lyle W. Cayce
                                                                             Clerk


SAMUEL T. WILLIAMS, Individually; KOURTNEY BYNUM, Individually;
DONALD REED, SR., Individually and on Behalf of the Wrongful Death
Beneficiaries of Donald Reed, Jr.; JUDY THOMPSON, Individually and on
Behalf of the Wrongful Death Beneficiaries of Donald Reed, Jr.,

             Plaintiffs–Appellees,

v.

SHARON HAMPTON,

             Defendant–Appellant.




                  Appeal from the United States District Court
                    for the Northern District of Mississippi


Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, and COSTA, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge, joined by STEWART, Chief Judge, and
JOLLY, DAVIS, JONES, SMITH, CLEMENT and PRADO, Circuit Judges:


      While confined at a Mississippi penitentiary, Donald Reed, Jr. was
brutally attacked and murdered by other prisoners.        Two other inmates,
Samuel Williams and Kourtney Bynum, were also attacked but recovered from
their injuries.    Reed’s survivors, Williams, and Bynum (collectively the
     Case: 12-60933      Document: 00513132944        Page: 2     Date Filed: 07/28/2015



                                     No. 12-60933
plaintiffs) sued Sharon Hampton, a corrections officer, under 42 U.S.C. § 1983
asserting that she had violated the Eighth Amendment’s prohibition against
cruel and unusual punishments. A jury found that Hampton was deliberately
indifferent to the safety of the victims of the attacks. A divided panel of this
court affirmed the district court’s denial of Hampton’s motion for judgment as
a matter of law. 1     After rehearing the case en banc, we now reverse the
judgment of the district court because Hampton’s acts or omissions did not, as
a matter of law, rise to the level of deliberate indifference.
                                            I
      Because we examine the evidence in some detail below in considering the
legal sufficiency of the evidence to support the verdict, we only briefly recount
the operative facts here. The inmate-on-inmate attacks occurred on an outdoor
exercise yard in Unit 32 of the State Penitentiary in Parchman, Mississippi.
Each prisoner was confined in a single-person pen during his one-hour exercise
period each day. Sharon Hampton had been guarding the exercise area and
had been in possession of a block gun, which holds only one hard rubber slug,
approximately five to six minutes before the events leading to the attacks
began. It was past time for the prisoners on the yard to be taken back inside.
One of the plaintiffs in this case, Samuel Williams, who testified at trial, told
Hampton that he would not come out of his pen unless she went inside and
obtained a money withdrawal slip for him. A supervisor, Anthony Taylor,
relieved Hampton, and she handed the block gun and the keys to the individual
exercise pens to Taylor before she went inside to obtain the withdrawal slip.
Hampton had two rubber pellets for the block gun in her pocket and did not
give them to Taylor when she left the yard area.



       1 Williams v. Hampton, 562 F. App’x 192 (5th Cir. 2014) (per curiam) (vacated by the
grant of rehearing en banc).
                                            2
    Case: 12-60933          Document: 00513132944     Page: 3   Date Filed: 07/28/2015



                                     No. 12-60933
      While Taylor was on guard, two inmates escaped from their respective
exercise pens, and they ran toward Taylor. He pointed the block gun at them,
the escaped inmates stopped momentarily, then Taylor turned and ran inside
the prison without firing the block gun.            Taylor dropped the keys to the
individual exercise pens on the ground as he fled. One of the inmates who had
escaped used the keys to release five other prisoners from their pens. The
seven escaped inmates carried out the attacks on Reed, Bynum and Williams
while Hampton was inside the prison. It was later determined that the block
gun was unloaded and had been unloaded most, if not all, of the day.
      The plaintiffs contend that Hampton was deliberately indifferent to the
safety of the inmates who were attacked by failing to ascertain whether the
block gun was loaded when she began her shift on the prison yard and by
failing to give Taylor the two pellets for the block gun that were in her pocket
when she entered the prison.
      At the close of the evidence, the district court denied Hampton’s Rule
50(a) motion for judgment as a matter of law. 2 The jury found that Hampton
was deliberately indifferent to the safety of Reed, Bynum and Williams; and
that Hampton was not entitled to the defense of qualified immunity. The jury
awarded $25,000 to Williams, $25,000 to Bynum, and $100,000 to the survivors
of Reed. Hampton has appealed, contending that her failures regarding the
block gun fall short of deliberate indifference as a matter of law, her acts and
omissions were not the cause of the death and injuries because the attackers
would not have had access to the three inmates in their individual 180-square-
foot exercise pens but for Taylor’s dropping the keys, and that the jury’s verdict
that Hampton was not entitled to qualified immunity cannot stand because it




      2   FED. R. CIV. P. 50(a).
                                           3
    Case: 12-60933          Document: 00513132944          Page: 4    Date Filed: 07/28/2015



                                        No. 12-60933
would not be clear to a reasonable officer that an act of negligence which
violated prison protocols is “unlawful” and violates federal law.
      Because we conclude that there is legally insufficient evidence to support
the jury’s finding that Hampton was deliberately indifferent, we do not
consider the two other issues that she has raised. We reverse the district
court’s judgment against Hampton.
                                               II
      “[P]rison officials have a duty . . . to protect prisoners from violence at
the hands of other prisoners.’” 3 This duty is derived from the prohibition of
“cruel and unusual punishments” 4 in the Eighth Amendment. 5 The Supreme
Court has explained that “[i]t 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 victim’s safety.” 6 The Court has made clear
“that a prison official violates the Eighth Amendment only when two
requirements are met.” 7             One is that “the deprivation alleged must be,
objectively, ‘sufficiently serious.’” 8 “For a claim . . . based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm.” 9 “The second requirement follows from the
principle that ‘only the unnecessary and wanton infliction of pain implicates
the Eighth Amendment.’” 10 “To violate the Cruel and Unusual Punishments


      3   Farmer v. Brennan, 511 U.S. 825, 833 (1994) (omission in original).
      4   U.S. CONST. amend. VIII.
      5   Farmer, 511 U.S. at 832.
      6   Id. at 834.
      7   Id.
      8   Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
      9   Id.
      10   Id. (quoting Wilson, 501 U.S. at 297)).
                                                4
     Case: 12-60933          Document: 00513132944          Page: 5      Date Filed: 07/28/2015



                                          No. 12-60933
Clause, a prison official must have a ‘sufficiently culpable state of mind.’” 11
The Supreme Court has explained that “[i]n prison-conditions cases, that state
of mind is one of ‘deliberate indifference’ to inmate health or safety.” 12
       The Supreme Court’s seminal decision as to what constitutes “deliberate
indifference” is Farmer v. Brennan. 13 Since at least 1976, the Court’s decisions
had reflected that “deliberate indifference describes a state of mind more
blameworthy than negligence,” 14 and “Eighth Amendment liability requires
‘more than ordinary lack of due care for the prisoner’s interests or safety.’” 15
The Court’s decisions were “also clear that [deliberate indifference] is satisfied
by something less than acts or omissions for the very purpose of causing harm
or with knowledge that harm will result.” 16 The Supreme Court noted in
Farmer that Courts of Appeals had “routinely equated deliberate indifference
with recklessness,” 17 but that did not “fully answer the . . . question about the
level of culpability deliberate indifference entails, for the term recklessness is
not self-defining.” 18 The Court explained that the civil law generally employs
an objective standard in determining recklessness. “The civil law generally
calls a person reckless who acts or (if the person has a duty to act) fails to act
in the face of an unjustifiably high risk of harm that is either known or so


       11  Id. (quoting Wilson, 501 U.S. at 297)). But see id. at 835 (observing that “‘application
of the deliberate indifference standard is inappropriate’ in one class of prison cases: when
‘officials stand accused of using excessive physical force’” and that in such cases a claimant
must show that officials applied force maliciously and sadistically for the very purpose of
causing harm) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)).
       12   Id. at 834 (quoting Wilson, 501 U.S. at 302-303)).
       13   511 U.S. 825 (1994).
       14   Id. at 835 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
       15   Id. (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
       16   Id.
       17   Id. at 836.
       18   Id.
                                                 5
     Case: 12-60933          Document: 00513132944          Page: 6    Date Filed: 07/28/2015



                                          No. 12-60933
obvious that it should be known.” 19 By contrast, the criminal law employs a
subjective standard. It “generally permits a finding of recklessness only when
a person disregards a risk of harm of which he is aware.” 20
       The Supreme Court refused to adopt an objective test for deliberate
indifference. 21 The Court held that “Eighth Amendment suits against prison
officials must satisfy a ‘subjective’ requirement.” 22 The Court explained “that
a prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety.” 23 There are
two necessary components: (1) “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
exists,” and (2) “he must also draw the inference.” 24 Subjective recklessness as
used in the criminal law is the test for deliberate indifference under the Eighth
Amendment. 25
       The Supreme Court has reasoned that this subjective test flows from the
punishment aspect of the Eighth Amendment. “[I]n the Eighth Amendment
context . . . a subjective approach isolates those who inflict punishment.” 26
“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it




       19   Id.
       20   Id. at 837.
       21   Id.
       22   Id. at 838 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
       23   Id. at 837.
       24Id.; see also Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003) (quoting Farmer, 511
U.S. at 837).
       25   Farmer, 511 U.S. at 839-40.
       26   Id. at 839.
                                                 6
    Case: 12-60933          Document: 00513132944           Page: 7   Date Filed: 07/28/2015



                                        No. 12-60933
outlaws cruel and unusual ‘punishments.’” 27 Accordingly, “an official’s failure
to alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.” 28
      We apply the principles articulated in Farmer as we consider whether
there is legally sufficient evidence to support the jury’s finding in the present
case that Hampton was deliberately indifferent.
                                              III
      We are reviewing the district court’s denial of a motion for judgment as
a matter of law under Rule 50(a). 29 “[A] court should render judgment as a
matter of law when ‘a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party
on that issue.’” 30 The Supreme Court has explained that “the standard for
granting summary judgment ‘mirrors’ the standard for judgment as a matter
of law, such that ‘the inquiry under each is the same.’” 31 We “should review all
of the evidence in the record,” but “[i]n doing so . . . [we] must draw all
reasonable inferences in favor of the nonmoving party, and [we] may not make
credibility      determinations       or   weigh      the     evidence.” 32     “‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.’” 33



      27   Id. at 837.
      28   Id. at 838.
      29   FED. R. CIV. P. 50(a).
      30 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) (quoting
FED. R. CIV. P. 50(a)).
      31   Id. at 150 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).
      32   Id.
      33   Id. (quoting Liberty Lobby, 477 U.S. at 255).
                                               7
    Case: 12-60933       Document: 00513132944    Page: 8   Date Filed: 07/28/2015



                                  No. 12-60933
“[A]lthough the court should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury is not required to
believe.’” 34 This means “the court should give credence to the evidence favoring
the nonmovant as well as that ‘evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.’” 35
      The plaintiffs contend that Hampton was deliberately indifferent to a
substantial risk of inmate-on-inmate violence when she failed to ascertain if
the block gun was loaded and because she took two rubber pellets with her
back into the prison building and did not give them to Taylor when he relieved
her in the exercise yard while she went inside. The block gun at issue was a
37-millemeter weapon. It was about 36 inches (a yard) long, and it held one
round of ammunition. It would fire only once and would then have to be
reloaded. It had a lever and operated much like a double-barreled shotgun
with respect to how it opened to be loaded and unloaded but not with respect
to having two chambers. After firing, the person operating it would have to
open the gun, pull out the casing of the projectile that had been fired, and insert
another round to shoot again.       The projectiles were rubber bullets.      The
plaintiffs’ expert witness testified that the block gun was a nonlethal weapon.
The plaintiffs also called as a witness one of the inmates who participated in
the attacks, Edward House, and he testified that he had been shot with a block
gun before the day in question, and “[i]t hurts momentarily” but that “it will
surpass [sic].”
      Christopher Epps, the Commissioner of the Mississippi Department of
Corrections (MDOC), testified that the officer who was first on duty in the


      34   Id. at 151.
      35   Id.
                                        8
    Case: 12-60933     Document: 00513132944      Page: 9   Date Filed: 07/28/2015



                                   No. 12-60933
exercise yard that day should have checked the block gun to assure that it was
loaded before taking the weapon onto the exercise yard. No one disputes this.
Epps also testified, without contradiction, that corrections officers are not
supposed to open the block gun when inmates are being transported to or from
the exercise pens. If the gun were opened and a projectile “popped out,” the
officer might be vulnerable from attack by an inmate. Officers are to remain a
certain number of feet from the inmates with this weapon. An expert witness
for the plaintiffs testified that he thought that an officer with a block gun would
have time to inspect the weapon to see if it was loaded after the inmates were
confined in their exercise pens.
      The evidence is undisputed that there were three rounds of ammunition
for this block gun. Hampton testified directly to this fact, and no one, including
the experts called by the plaintiffs, took issue with this testimony. All the
testimony regarding the block gun throughout the trial indicated that the two
rubber pellets Hampton took inside with her were extra ammunition for the
block gun, not the only two pellets for the weapon.
      There is no evidence that the officer who obtained the block gun before
going onto the yard at the beginning of the day was Hampton. Hampton
testified that when she came to work that morning, she was assigned to the
exercise yard, and when she arrived at the yard, Taylor was already there with
the block gun and the ammunition. Hampton testified that when she first went
onto the exercise yard, inmates had already been brought onto the yard, and
the process of bringing them to and from the exercise pens was ongoing.
Hampton relieved Taylor when she arrived on the yard. Though the plaintiffs
attempt to dispute this in their briefing by arguing that Hampton was
impeached on this point, the record does not support the plaintiffs’ assertion.
The evidence reflects that Taylor was on the exercise yard that morning before
Hampton. Taylor did not testify at trial, but the record contains statements
                                        9
   Case: 12-60933      Document: 00513132944    Page: 10   Date Filed: 07/28/2015



                                 No. 12-60933
he made to investigators after the assaults and his written statement, though
his written statement is unsigned.     The investigative report reflects that
Taylor told investigators the following: he (Taylor) was on the exercise yard,
watching the pens, when he was told by the Commander to place Hampton in
the exercise yard to guard the inmates. Taylor instructed Hampton to report
to the yard, and he gave her the block gun. Consistent with this report,
Taylor’s written statement says that he had been on the exercise yard for about
an hour when the Commander told him to have Hampton stay in the exercise
yard while Taylor assisted with escorting inmates from the building. Taylor’s
written statement says that “Hampton was on the yard most of the day.” The
investigative report similarly reflects that Taylor said that Hampton was
stationed on the exercise yard for several hours guarding the inmates after she
relieved him, and Taylor resumed his duties of searching and escorting
inmates to the yard.
      The record reflects that Hampton relieved Taylor twice that day, once in
the morning, and later in the afternoon.   Taylor relieved Hampton after she
had relieved him for the first time early in the morning, and Taylor relieved
Hampton in the afternoon before relieving her again for the five-minute period
just before the attacks began. There is no evidence that anyone other than
Taylor or Hampton was in possession of the block gun while on the exercise
yard the day of the attacks.
      Two witnesses called by the plaintiffs testified that Taylor was on the
exercise yard before Hampton the afternoon of the attack. Smothers, one of
the attackers, testified on direct examination that when he first went out to
the exercise yard, Taylor was there, and Taylor then changed out with
Hampton.    Smothers did not know that Taylor later came back and that
Hampton had left the yard at the time of the attacks. When asked to clarify,
Smothers repeated that when he first went out onto the yard, “Taylor was there
                                      10
   Case: 12-60933     Document: 00513132944      Page: 11   Date Filed: 07/28/2015



                                  No. 12-60933
first” and he saw Hampton “come out there next.” Another of the attackers,
House, called as a witness by the plaintiffs, testified on direct examination that
when he came onto the yard, Taylor was there “walking back and forth with
the block gun.” Hampton came on the yard later but “he [Taylor] sooner or
later got her to go back in while he held down the yard.”
      These accounts are consistent with all the evidence of how the attacks
unfolded, which was that about five minutes before two inmates escaped from
their pens, Hampton asked Taylor to relieve her for “awhile” in order for her
to retrieve paperwork at Williams’s request, and Hampton told Taylor “that
she was coming ‘right back’.” Hampton gave Taylor the keys and the block gun
but did not relinquish to him any ammunition for the gun, and Taylor did not
ask for any ammunition. Taylor admitted that he did not check the weapon to
insure that it was loaded when Hampton went inside the prison. Taylor had
been on the yard for approximately five minutes when he saw two inmates
(Lester Nash and Derrick Hayes) running toward him.             Taylor’s written
statement to investigators after the attacks is consistent with this account in
the report, though Taylor refused to sign his written statement because he
requested removal of his admissions that he had sat in a chair when assigned
to the exercise yard and had not asked for ammunition to the block gun when
Hampton handed it to him.
      The exercise yards at Unit 32 were originally open areas, but fighting
and stabbings had occurred.       As a result, Mississippi built single-person
exercise pens. At the time of the assaults in this case, there were twenty-eight,
180-square-foot, single-occupancy exercise pens on the exercise yard for
Building B that were constructed of cyclone metal fencing on all sides and
across the top, so that the areas were completely enclosed. An inmate who
stood in the middle of his locked pen could avoid attack from other prisoners
outside the pen.
                                       11
   Case: 12-60933       Document: 00513132944     Page: 12   Date Filed: 07/28/2015



                                   No. 12-60933
         One of the inmates involved in the assaults on Reed, Bynum and
Williams testified that it was not difficult to get out of the exercise pens.
However, there is no evidence that Hampton knew or thought that it was not
difficult to escape from the exercise pens, and there was no evidence that any
escapes had occurred from the exercise pens prior to the day of the attacks at
issue.
         The Commissioner of the MDOC testified that inmates “will take . . . that
wire and unwhittle it out of the fence and sharpen it on the concrete and make
a shank.” There was also evidence at trial that inmates who were classified as
“camp support” were not subjected to strip searches and had access to the
exercise pens. “Camp support” inmates would sometimes place homemade
weapons in the exercise pens after the pens had been inspected for use of the
inmates who were to be confined in them. One of the inmates who participated
in the attacks against Reed, Bynum and Williams testified at trial that on the
day of the attacks, he had been strip-searched, but a “camp support” inmate
left a shank for him in the exercise pen. The Commissioner additionally told
the jury that because of the violent nature of rival gang members housed in
the prison, “at the end of the day, the incident was going to happen either on
the pens or somewhere else.” However, until the attacks on Reed, Bynum and
Williams, there is no evidence that there had actually been inmate-on-inmate
assaults in the exercise area after the single-person pens were constructed.
         In her statements to authorities after the assaults and her trial
testimony, Hampton said that she knew that she had two rounds of
ammunition in her pocket when she went into the prison and did not give them
to Taylor because she thought that she would only be gone a minute or two. It
is undisputed that Hampton told Taylor that she would be “right back.” She
testified that “the gun that Anthony Taylor had while he was out there on yard
call should have already been loaded,” and “that’s when I assumed that the
                                         12
   Case: 12-60933      Document: 00513132944    Page: 13   Date Filed: 07/28/2015



                                 No. 12-60933
gun was already loaded when I went out there.” This assumption was based
on the uncontradicted evidence that there were three rounds of ammunition
for the block gun. Hampton repeated later in her testimony that Taylor, a
supervisor, had only given her two rounds when she had relieved him earlier
in the day, and there were three rounds of ammunition for the block gun. She
also said, “according to me, Lieutenant Taylor should have already had the gun
loaded before he put the first inmate out there.” Hampton acknowledged from
the outset of the investigation after the assaults and at trial that she had not
insured that the block gun was loaded, and Hampton testified at trial that she
had made a mistake in failing to check the block gun.
      It was determined after the assaults that the block gun was not loaded.
The plaintiffs contend, and the evidence is uncontradicted, that Hampton was
on the exercise yard for an extended period of time, most of the day, with an
unloaded block gun. Just before the assaults began, she gave the unloaded
block gun to Taylor. The two extra rounds of rubber pellets for the block gun
were in Hampton’s pocket when she went into the prison; they were not in
Taylor’s possession.
      After Hampton went inside the prison, Nash and Hayes escaped from
their respective exercise pens. Each pen had a piece of angle iron that was spot
welded in three places to the bottom edge of the pen’s door. Nash used a hack
saw to loosen the door to his pen and then kicked out the bottom of the door to
his pen. Nash had handed the hack saw to Hayes in this process, and Hayes
escaped when Nash pulled him from under the partially compromised door to
Hayes’ pen. Nash and Hayes then ran toward Taylor. They told Taylor that
they were going to kill him. Nash and Hayes each had a homemade shank or
knife. Taylor raised the block gun and pointed it at them. Nash and Hayes
stopped. The evidence is not entirely consistent as to exactly what transpired
next, but viewing the evidence in the light most favorable to the jury’s finding,
                                       13
   Case: 12-60933     Document: 00513132944     Page: 14   Date Filed: 07/28/2015



                                 No. 12-60933
Taylor told investigators that he did not know how many inmates had escaped,
he saw that Nash and Hayes had shanks, and he decided to run inside the
building. He also told investigators that he “panicked” and somehow dropped
the keys. Taylor said in his written statement, “I admit that I panicked and
somehow dropped the keys to the Exercise Pens.” One of the attackers testified
at trial that when Nash and Hayes confronted Taylor, “Taylor, he kind of
panicked and ran into the building.” (There was some evidence that Taylor
was also a gang member and was part of a plan to carry out the assaults, but
we do not consider that evidence; nor do the plaintiffs rely upon it.) An inmate
interviewed after the attacks said that he heard Taylor shout “[d]on’t kill me.”
      The evidence in the record is uniform that Taylor did not attempt to fire
the block gun at Nash or Hayes before running inside the building. Williams,
one of the plaintiffs, told investigators after the incident that Taylor “did not
fire the weapon because he was scared.” In the plaintiffs’ briefs in our court,
they contend that Taylor “realiz[ed] too late the block gun was unloaded.”
However the citation to the record in the brief does not support this statement,
even arguably. There is no evidence in the record that Taylor knew the block
gun was unloaded when Nash and Hayes charged towards him nor any
evidence from which it could be inferred that Taylor realized the block gun was
unloaded.
      It is, however, undisputed that as Taylor ran toward the building and
the keys to the pen had fallen to the ground, Reed, who was killed in the
attacks, and Samuel Williams, one of the plaintiffs, both beseeched Taylor to
pick up the keys. Courtney Bynum, another of the plaintiffs, testified that
Reed and Williams shouted “please don’t leave them keys out here, pick them
keys up.” But Taylor disregarded these pleas and fled into the prison. Taylor
also left his baton (night stick) on the exercise yard when he retreated.


                                       14
   Case: 12-60933      Document: 00513132944    Page: 15   Date Filed: 07/28/2015



                                 No. 12-60933
      Nash and Hayes followed Taylor inside the building, into the
administrative hallway.     Another officer, who was inside an office in the
building, opened a door for Taylor, and Taylor went safely into the tower.
Hayes beat on the Captain’s office door, but another officer held it shut and
ordered Hayes to get away. Hayes and Nash returned to the yard, and Nash
ordered Hayes to hold the door shut. Hayes or another inmate, or both, leaned
on the door into the prison to keep officials from coming onto the yard through
it. By most accounts, Nash picked up the keys to the pens that Taylor had
dropped on the ground, and Nash used the keys to unlock the pens of five other
inmates, though Williams, who is one of the plaintiffs, said that Hayes picked
up the keys and unlocked the pens of other inmates. There is no dispute that
seven inmates were involved in the attacks. Six of the seven inmates were
armed with shanks, one was also armed with Taylor’s baton, and another
testified that he wielded the angle iron from Hayes’s pen as a weapon and used
it to hit Reed, Bynum and Williams. The angle iron was so heavy, the inmate
had to use both hands to carry and swing it. This group of inmates then
proceeded to unlock the pens in which Reed, Bynum and Williams were
confined and to attack them. Reed was attacked first and did not survive the
multiple stab wounds and blows that were inflicted, including blows to his head
with the angle iron.     Bynum and Williams were stabbed and beaten but
recovered from their injuries.
      At the conclusion of an investigation, Hampton was found by a prison
review process to have committed acts that threatened the health and safety
of others in failing to check the block gun to determine if it was loaded and for
taking ammunition for the block gun inside the prison.           Her failure to
determine if the block gun was loaded and her failure to give Taylor the two
slugs she had in her pocket violated MDOC protocol. She received a ten-day
suspension without pay for this violation.
                                       15
    Case: 12-60933        Document: 00513132944           Page: 16   Date Filed: 07/28/2015



                                       No. 12-60933
                                             IV
      It is undisputed that the block gun was unloaded when Hampton gave it
to Taylor, minutes before the assaults on Reed, Bynum and Williams were set
in motion. However, there is no evidence that Hampton knew the block gun
was unloaded. Nor is there evidence from which a reasonable factfinder could
draw the inference that Hampton knew the block gun was unloaded. The
plaintiffs argue only that Hampton had the opportunity to check the weapon
while she was in possession of an unloaded block gun on the exercise yard for
many hours, she did not do so, and she admitted to making a mistake in failing
to check the block gun. But these facts do not support an inference that
Hampton realized the block gun was unloaded before she gave it to Taylor the
afternoon of the attacks. In light of the fact that Hampton was on the exercise
yard most of the day with an unloaded block gun, it would be somewhat
irrational to conclude that Hampton realized she should check the block gun
but consciously chose not to do so. Hampton’s failure to determine whether
the block gun was loaded would no doubt support a finding of negligence, but
as the Supreme Court has explained, “deliberate indifference describes a state
of mind more blameworthy than negligence.” 36
      Hampton did know that she failed to give the two rubber pellets in her
pocket to Taylor when she went inside the prison for what she thought would
be a few minutes. She knew that she had taken the pellets with her. It is also
fair to infer from the record that Hampton knew there was a substantial risk,
as a general proposition, that inmates in Unit 32 would attack other inmates
if the opportunity arose.         But a risk that inmate-on-inmate violence has
occurred and may occur again does not describe the risk in this case at the
appropriate level of specificity in light of the facts of this case.


      36   Farmer v. Brennan, 511 U.S. 825, 835 (1994).
                                             16
   Case: 12-60933          Document: 00513132944         Page: 17     Date Filed: 07/28/2015



                                        No. 12-60933
      The Supreme Court held in Farmer that “a prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane conditions
of confinement unless the official knows of and disregards an excessive risk to
inmate health or safety.” 37 The Supreme Court elaborated, holding “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.” 38
At another juncture in the Farmer decision, the Supreme Court held that “[t]he
question under the Eighth Amendment is whether prison officials, acting with
deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of
serious damage to his future health.’” 39 What was the risk to an inmate from
attack by another inmate when Hampton left Taylor with what she believed to
be a loaded block gun and took two rubber pellets into the prison for what she
thought would be a few minutes? There was a risk to Taylor, but that would
not have implicated the Eighth Amendment. There was a risk that if a lone
inmate escaped and threatened harm to another inmate, a single shot from the
block gun would be inadequate to deter the attacker, Taylor would be unable
to reload a second or third round to attempt to deter the attacker, and the
attacker could inflict harm on another inmate who, for some reason, was
outside of his locked pen. There was a risk that if more than one inmate
escaped from the pens and threatened to attack another inmate or inmates
who were, for some reason, also outside the locked pens, Taylor would remain
on the exercise yard rather than seek help, would fire the single round in the
block gun and would then be unable to reload a second or third round in an




      37   Id. at 837.
      38   Id.
      39   Id. at 843 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)).
                                              17
    Case: 12-60933           Document: 00513132944          Page: 18   Date Filed: 07/28/2015



                                          No. 12-60933
attempt to prevent a second or multiple attackers from proceeding to attempt
to harm another inmate or inmates.
       Whether Hampton was actually aware of the facts from which the
inference could be drawn that a substantial risk of serious harm exists, and
whether she actually drew the inference are questions of fact. 40 There is no
direct evidence that Hampton actually knew that there was an excessive risk
to inmate safety or that she disregarded such a risk. “Whether a prison official
had the requisite knowledge of a substantial risk is a question of fact subject
to demonstration in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” 41 The Supreme
Court explained, however, “[i]f the risk is obvious, so that a reasonable man
would realize it, we might well infer that [the defendant] did in fact realize it;
but the inference cannot be conclusive, for we know that people are not always
conscious of what reasonable people would be conscious of.” 42 The Supreme
Court said, “[f]or example, if an Eighth Amendment plaintiff presents evidence
showing that a substantial risk of inmate attacks was ‘longstanding, pervasive,
well-documented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been exposed
to information concerning the risk and thus “must have known” about it, then
such evidence could be sufficient to permit a trier of fact to find that the
defendant-official had actual knowledge of the risk.’” 43


       40    Id. at 837, 842; see also Longoria v. Texas, 473 F.3d 586, 595 (5th Cir. 2006)
(“Whether a prison official had knowledge of a substantial risk to inmate safety is a question
of fact . . . .”).
       41   Farmer, 511 U.S. at 842 (citation omitted).
       42   Id. (second alteration in original) (citations omitted).
       43  Id. at 842-43; see also Longoria, 473 F.3d at 595 (observing that “[i]f [two prison
officials] had indeed received repeated warnings from [the inmate who was attacked by
                                                 18
    Case: 12-60933        Document: 00513132944           Page: 19     Date Filed: 07/28/2015



                                        No. 12-60933
       There is no evidence that any inmate had escaped from the exercise pens
prior to the day of the attacks at issue, much less evidence that more than one
inmate escaped at the same time. Although the Commissioner of the MDOC
may have been of the opinion that the inmate attacks on Reed, Bynum and
Williams were “going to happen either on the pens or somewhere else,” there
is no evidence Hampton knew of his opinion or shared that view before the
attacks occurred. There is no evidence that corrections officers were trained to
stand their ground or had in fact done so with a block gun and two extra pellets
in hand when two inmates armed with shanks were threatening to kill the
officer. There is no evidence that in the past, corrections officers had dropped
the keys to the exercise pens or that the keys had otherwise become available
to an escaped inmate. There is no evidence that a block gun could have been
reloaded once or twice after initial firing in time to neutralize more than one
inmate threatening harm to a corrections officer or other inmates.
       The amount of time that Hampton had within which to appreciate the
risk of harm and to draw an inference regarding the nature of that risk is also
a factor in our analysis. In many prison confinement cases, the officials who
have been sued had time to consider and reflect upon the various options. For
example, in Farmer, a 19- or 20-year-old male transsexual inmate had, prior
to his imprisonment, undergone estrogen therapy, received silicone breast
implants and had submitted to unsuccessful “black market” testicle-removal




another inmate], including the currently unauthenticated letter in which [the attacked
inmate] details the . . . plot to kill him and his fear of remaining in lockdown with his putative
murderers, [the prison officials] might have been aware of facts from which inferences
suggesting deliberate indifference could be drawn”); Adames v. Perez, 331 F.3d 508, 512 (5th
Cir. 2003) (recognizing that “the plaintiff can produce circumstantial evidence that the risk
to inmate health or safety was so longstanding and pervasive that the official must have been
aware of this danger”).
                                               19
    Case: 12-60933          Document: 00513132944        Page: 20   Date Filed: 07/28/2015



                                          No. 12-60933
surgery. 44 He claimed to have continued hormonal treatment while in prison
and wore clothing in a “feminine manner, as by displaying a shirt ‘off one
shoulder.’” 45     Federal prison authorities transferred him, for disciplinary
reasons, from a correctional institution to a penitentiary, which would
“typically [be a] higher security facilit[y] that house[d] more troublesome
prisoners.” 46 After this inmate was placed in the general population, he was
raped and beaten. 47 He sued, alleging that officials knew that the penitentiary
had a violent environment and a history of inmate assaults, and that they
knew that the plaintiff would be particularly vulnerable to sexual attack as a
transsexual who exhibited feminine characteristics. 48              There was also an
indication that one prison official had told the inmate that, because of his
sexual orientation and appearance, he was “likely to experience a great deal of
sexual pressure” in prison, and another official had told him that there was “a
high probability that [petitioner] could not safely function” at the prison to
which he was transferred. 49 There was, relatively speaking, considerable time
for the prison officials in Farmer to contemplate what risks might exist and
whether to subject the inmate to those risks. In the Farmer decision, the Court
gave other examples of situations in which prison officials might be found to
have been deliberately indifferent to a sufficiently substantial risk of serious
damage to an inmate’s future health or safety. 50 In each of those examples
there would have been time for the official to consider the risk and whether to


      44   Farmer, 511 U.S. at 829.
      45   Id.
      46   Id. at 830.
      47   Id.
      48   Id. at 831.
      49   Id. at 848-49 (alteration in original).
      50   Id. at 843-44 & n.8.
                                                20
   Case: 12-60933     Document: 00513132944      Page: 21   Date Filed: 07/28/2015



                                  No. 12-60933
act or fail to act in the face of that risk. By contrast, Hampton had a short span
of time to reflect upon the risk presented in taking the two rubber pellets with
her inside the prison for what she believed would be an absence from the
exercise yard of a few, or perhaps several, minutes.
      Based on the record before us, there is legally insufficient evidence to
satisfy the subjective element of deliberate indifference, which has its genesis
in the cruel and unusual punishments clause of the Eighth Amendment.
Hampton’s acts or omissions did not amount to punishment of Reed, Bynum or
Williams, as that concept has been defined by the Supreme Court.
                                        V
      The plaintiffs marshal considerable evidence that Unit 32 had a history
of violence and inmate-on-inmate attacks. They contend that a corrections
officer, such as Hampton, must have known of these conditions, and that it is
reasonable to infer that she acted with deliberate indifference to the safety of
inmates such as Reed, Bynum and Williams because of this history.
      The Commissioner of the MDOC testified that Unit 32 was a dangerous
place at the time of the attacks on the three inmates. He recounted that rival
gangs fought each other “all the time” and that they made shanks out of
various objects, such as lights similar to those that were in the trial courtroom.
Inside the cell blocks, the inmates used their bed sheets to move shanks and
other contraband from cell to cell. He testified that “we always have rival
fights and stabbings, and unfortunately, sometimes killings with the gangs.”
Core members of rival gangs were housed within Unit 32.
      Commissioner Epps opined that Unit 32 was unsuitable for the purposes
for which the MDOC used it. “It was never built for a closed maximum security
unit, and that’s what we was [sic] using it for.” Unit 32 housed approximately
1,000 inmates.    The attacks occurred on the exercise yard of Building B.
Building B was one of five buildings in Unit 32.
                                       21
   Case: 12-60933     Document: 00513132944     Page: 22   Date Filed: 07/28/2015



                                 No. 12-60933
      Another MDOC official, Ricky Scott, testified regarding gang violence at
Unit 32, saying that some of the gang members were “at war” with one another.
Gang members had evaded security measures and attacked other gang
members, and gang members were “fighting with each other constantly.”
      An expert witness testified on behalf of the plaintiffs that Unit 32 was a
maximum security unit that housed gang members; administrative
segregation or disciplinary inmates who were either too violent to be in the
general population or had committed serious rule violations; mentally ill
inmates; inmates in protective custody; and death row inmates. This expert
said that a report done by another expert reflected that Unit 32 housed
approximately 1,000 inmates, but that 80% of them did not require
confinement in a maximum security facility. The same report had concluded
that the MDOC had no reclassification process that would permit inmates at
Unit 32 to demonstrate improvement so that they could be sent to another
place of confinement. As a result, this report concluded, there was no incentive
for behavior improvement because inmates saw no way to work their way out
of Unit 32, and they therefore became desperate.
      Epps, as well as the plaintiffs’ expert, also testified that a week before
Reed, Bynum and Williams were attacked, a correctional officer trainee had
smuggled a .380 semiautomatic pistol and two magazines of ammunition into
the prison. However, there is no evidence that Hampton knew of this incident
or that it occurred on an exercise yard. Nor was there evidence that anyone
was injured as a result of this smuggling incident.
      If we were to accept the plaintiffs’ argument that the foregoing evidence
of a history of violence and the conditions within Unit 32, generally, permits a
factfinder to draw the conclusion that when Hampton failed to give the two
extra pellets to Taylor as she left the exercise yard, she appreciated that there
was an excessive risk of harm to inmates and knowingly disregarded that risk,
                                       22
    Case: 12-60933       Document: 00513132944          Page: 23     Date Filed: 07/28/2015



                                       No. 12-60933
then liability for acts or omissions that would otherwise constitute negligence
can be imposed whenever a corrections officer at Hampton’s level knows that
she is working in a prison with a similar history. That is analogous to a form
of strict liability for corrections officers such as Hampton, and the Eighth
Amendment does not support such a theory of culpability. Imposing liability
because an officer such as Hampton is aware that inmates have attacked other
inmates in the past would demand near-perfect foresight from prison guards.
       Hampton had no means of controlling how Unit 32 was used, the
classification of inmates housed there, or the general policies and procedures
implemented at Unit 32. Those matters were within the hands of official
beyond her pay grade. Hampton’s job at Unit 32 was to arrive at the prison at
approximately 7:45 in the morning in uniform. She stood for muster and
inspection to see that she was properly groomed, her uniform was properly
buttoned, her shoes were shined, etc. The watch commander would then tell
her whether she would be working in Building A, B, C, D, E or F or whether
she would be assigned to the sally port, the yard tower, the kitchen, or some
other area of the prison. To say that Hampton was deliberately indifferent to
risks to inmates under the circumstances of the present case because of her
knowledge that the environment in which she worked was dangerous to her
and to inmates erects a standard for culpability for her and others like her that
is beyond what our court and the Supreme Court have said is warranted. 51



       51 See Doe v. Robertson, 751 F.3d 383, 391 n.10 (5th Cir. 2014); Longoria v. Texas, 473
F.3d 586, 593 n.9 (5th Cir. 2006); Adames v. Perez, 331 F.3d 508, 512-14 (5th Cir. 2003)
(applying a plain error standard of review and holding no evidence supported the jury’s
finding); see also Pierson v. Hartley, 391 F.3d 898, 903 (7th Cir. 2004); Verdecia v. Adams,
327 F.3d 1171, 1176-77 (10th Cir. 2003); Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir. 2002);
Hott v. Hennepin Cnty., 260 F.3d 901, 907-08 (8th Cir. 2001); Jackson v. Everett, 140 F.3d
1149, 1152 (8th Cir. 1998); Rich v. Bruce, 129 F.3d 336, 339 (4th Cir. 1997); Woods v.
Lecureux, 110 F.3d 1215, 1224-25 (6th Cir. 1997); Giroux v. Somerset Cnty., 178 F.3d 28, 32-
33 (1st Cir. 1999); Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620-21 (2d Cir. 1996).
                                             23
    Case: 12-60933        Document: 00513132944          Page: 24      Date Filed: 07/28/2015



                                        No. 12-60933
                                              VI
       The plaintiffs rely on the fact that Hampton was disciplined as a result
of her acts and omissions on the day that the assaults on Reed, Bynum and
Williams occurred.        However, in their supplemental en banc briefing, the
plaintiffs quote a decision of this court, acknowledging that Hampton’s
violation of MDOC policy “is insufficient by itself to support an argument for
deliberate indifference.” 52       The determinations in Hampton’s disciplinary
proceedings are not evidence that she knew the block gun was unloaded or that
she consciously weighed the risk of failing to ascertain if the block gun was
unloaded and decided not to open it. Nor are the disciplinary determinations
evidence that she appreciated the risk of failing to give the two rubber pellets
to Taylor or that she consciously decided to disregard those risks.
                                              VII
       An expert witness reviewed Hampton’s conduct and expressed his
opinion that she acted with deliberate indifference. In a case involving a
supervisor’s liability for failure to train jail personnel properly in providing
medical care to inmates, our court held that an expert’s opinion, standing
alone, is generally not evidence of deliberate indifference. 53 In that case, a



       52Longoria, 473 F.3d at 593 n.9; see also Robertson, 751 F.3d at 391 n.10 (holding that
a knowing violation of a policy which a correctional officer knew was designed to prevent
inmate assaults cannot support a finding of deliberate indifference when the only evidence
supporting the finding was the policy violation itself).
       53See Thompson v. Upshur County, 245 F.3d 447, 455, 459 (5th Cir. 2001) (“Standing
alone, an expert’s opinion is generally not enough to establish deliberate indifference.”); see
also Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998) explaining:
       [W]e have emphasized that, when seeking to prove a municipality's malevolent
       motive, plaintiffs must introduce more evidence than merely the opinion of an
       expert witness. In Stokes v. Bullins, 844 F.2d 269 (5th Cir.1988), the district
       court relied primarily on the testimony of a single expert witness in holding
       that the municipality violated § 1983. We disagreed, remarking that “an
       expert's opinion should not be alone sufficient to establish constitutional ‘fault’
       by a municipality in a case of alleged omissions, where no facts support the
                                              24
   Case: 12-60933            Document: 00513132944      Page: 25      Date Filed: 07/28/2015



                                         No. 12-60933
detainee died while in custody as a result of delirium tremens after
experiencing symptoms over a period of time. 54 Our court has not directly
considered whether expert testimony can raise a fact issue in a case of inmate-
on-inmate violence when there is no direct or circumstantial evidence that the
prison guard alleged to have been deliberately indifferent to a risk of harm to
the injured inmate or was subjectively aware of the risk.
      However, the Eleventh Circuit concluded in a case involving an Eighth
Amendment claim for failure to provide medical treatment that when the facts
and circumstances presented by a plaintiff do not permit an inference that the
defendant actually perceived the risk, expert opinion based on those same facts
and circumstances cannot provide the “missing Farmer link” of subjective
awareness. 55 The Eleventh Circuit reasoned that when there is no direct or
circumstantial evidence from which a jury could infer actual knowledge,
“allowing expert testimony that [the defendant] should or would have known
to raise a jury issue as to whether he actually knew effectively would nullify
Farmer’s requirement of subjective mental intent.” 56 That court explained,
“[t]he deficiency of the expert testimony here arises not necessarily from the
specific wording of the experts’ testimony—although some of Plaintiff’s
affidavits are lacking in many respects—but from the inherent opinion nature
of expert testimony about what a person should or would have known.” 57 After
commenting that “expert opinion testimony is not essential to [the] task” of
establishing subjective mental intent, the court discussed other cases in which


      inference that the town's motives were contrary to constitutional standards.”
      Id. at 275.
      54   Thompson, 142 F.3d at 452-54.
      55   Campbell v. Sikes, 169 F.3d 1353, 1368 (11th Cir. 1999).
      56   Id. at 1370-71.
      57   Id. at 1371 (footnote omitted).
                                              25
   Case: 12-60933          Document: 00513132944          Page: 26   Date Filed: 07/28/2015



                                           No. 12-60933
it had held there were triable issues of fact as to a defendant’s knowledge
without expert testimony because the evidences of the particular facts and
circumstances could support a jury’s finding of subjective knowledge. 58
      We agree with the Eleventh Circuit’s analysis. As in Campbell v. Sikes,
since the facts and circumstances of this case do not allow an inference that
Hampton actually perceived the risk, the opinion testimony by the plaintiffs’
expert that she did perceive or must have perceived the risk based on those
same facts and circumstances does not “provide the missing Farmer link.” 59
The record is devoid of facts to support the expert’s opinion regarding
subjective awareness.
                                              VIII
      The plaintiffs contend that our court’s decision in Cantu v. Jones 60 is
indistinguishable and that the jury in the present case was free to make
credibility determinations, just as the jury in Cantu was permitted to do. We,
of course, agree that a jury may make credibility determinations and draw
reasonable inferences from the evidence, but there must be some evidence from
which a reasonable inference in support of a factual finding can be drawn. For
the reasons discussed above, there was no evidence in the present case from
which a reasonable factfinder could conclude that Hampton was aware of facts
from which the inference could be drawn that a substantial risk of serious
harm existed and that Hampton actually drew that inference.
      In Cantu v. Jones, the plaintiff, Cantu, contended at trial that the three
defendants had conspired to facilitate an inmate’s attack on Cantu as




      58   Id. at 1372.
      59   Id. at 1368.
      60   293 F.3d 839 (5th Cir. 2002).
                                               26
    Case: 12-60933          Document: 00513132944    Page: 27   Date Filed: 07/28/2015



                                      No. 12-60933
retribution for serious complaints he had made about the prison’s operation. 61
The defendants claimed that the evidence established “nothing more than a
colossal coincidence,” 62 but our court concluded that there was “more than a
scintilla of evidence” to support the jury’s finding “that the appellants
essentially orchestrated the attack.” 63 The evidence in that case was that
Cantu had been placed in administrative segregation because of his past gang
membership and had sent twelve letters, three of which went to Beaird, the
captain in charge of administrative segregation, expressing fear that correction
officers had threatened to have Cantu assaulted by other inmates who were
members of the Mexican Mafia and that Cantu feared for his life. Cantu
alleged that after seeing these letters, Beaird conspired with two corrections
officers to allow an inmate to escape so that Cantu would be attacked. 64 After
Cantu was in fact assaulted by an inmate who was a member of the Mexican
Mafia, Cantu met with Beaird who told Cantu, “[y]ou know what? I don’t like
a snitch. Consider yourself lucky that you are still alive.” 65
      There was more than a scintilla of evidence that the escape by the inmate
who attacked Cantu was not the result of negligence or oversight but was the
result of a plan. The opinion in Cantu details that evidence, and we will not
recount all of it here. Briefly summarized, the evidence reflected that Cantu
was taken to the recreation area and shower out of turn on the day of the attack
by Waltersdorf, one of the defendants, just after Waltersdorf had returned the
attacker to his cell following recreation and a shower.               There was no



      61   Id. at 843-44.
      62   Id. at 845.
      63   Id.
      64   Id. at 843-44.
      65   Id. at 843.
                                           27
   Case: 12-60933            Document: 00513132944    Page: 28   Date Filed: 07/28/2015



                                       No. 12-60933
explanation of why Cantu was taken out of order. 66 The attacker’s cell door
was not securely closed by Waltersdorf when he returned the attacker to his
cell. Waltersdorf then proceeded to Cantu’s cell to take him to the recreation
area. 67 As this was occurring, the attacker escaped from his cell. Cantu was
on a floor below the attacker in another section of the prison that was separated
by a wall. The attacker had to go through a door between these sections which
was to have remained locked at all times but which, just minutes before the
attack, had been left unlocked by Waltersdorf. A lighting system on a control
panel in a control area would have shown officer Jones, the “picket officer,” who
was the third defendant, that the door between the sections in which Cantu
and the attacker were housed was unlocked. 68 Jones testified that he did not
notice the light, but in a handwritten statement just after the attack, he stated
that he did notice that the door was unlocked but did not notify Waltersdorf. 69
There was also evidence that Waltersdorf’s testimony that the attacker ceased
slashing Cantu with a razor blade when Waltersdorf directed him to stop the
attack was untrue. Others testified that the attack did not cease until another
corrections officer arrived upon the scene. The case before us today is factually
distinguishable from Cantu.
                                            IX
      The dissent contends that the judgment against Hampton should be
upheld based on a theory of liability that the plaintiffs have not urged at any
point on appeal. Part I(C) of the dissenting opinion asserts that Hampton had
a duty as yard officer to inspect the pens for weapons and breaches of security



      66   Id. at 842 & n.2.
      67   Id. at 841-42.
      68   Id. at 842.
      69   Id. at 842 n.3.
                                            28
    Case: 12-60933           Document: 00513132944    Page: 29   Date Filed: 07/28/2015



                                       No. 12-60933
and that she did not perform those inspections on the day of the attacks. 70 This
duty, the dissent contends, stems from a “post order” that the dissent says
“provided that yard officers should inspect the pens before an inmate is placed
inside.” 71     The dissenting opinion then selectively quotes testimony from
Commissioner Epps and Hampton to support its assertion that there was an
“evidentiary dispute” from which the jury could have concluded that
Hampton’s failure to inspect the pens amounted to deliberate indifference.
       Not once, in any of the briefing before the three-judge panel of this court
or subsequently the en banc court, have the plaintiffs suggested that Hampton
had a duty to inspect the pens on the day of the attack and that she was
deliberately indifferent for failing to do so. Nor did the plaintiffs make such
an argument in their briefing before the district court in response to Hampton’s
motion for judgment as a matter of law. The plaintiffs did adduce testimony
from an expert witness at trial to support such a theory, but their subsequent
abandonment of that theory is explained by the lack of any evidence in the
record to support the expert’s bare assertion.
       First and foremost, there is no evidence whatsoever that Hampton was
aware of the existence of the “post order” at the time of the attacks. She could
not be deliberately indifferent to a duty stemming from an order of which she
had no knowledge. The “post order” was a 19-page document. At trial, an
expert witness for the plaintiffs read from page 11 of that document, stating
that its provisions said “[u]pon removing the inmate from the exercise pen, the
exercise pen shall again be inspected and searched. The inmate shall be then
– shall then be escorted back to the housing unit and secured inside his cell. . . .
The inmate shall not be allowed to obtain any items from other offenders


       70   Post at 10-11.
       71   Post at 10-11.
                                            29
   Case: 12-60933        Document: 00513132944    Page: 30   Date Filed: 07/28/2015



                                   No. 12-60933
during this process.” In response to plaintiffs’ counsel’s statement that “[s]o
the post order says, upon removal of the inmates from the pen, the pen shall
again be inspected . . . [a]gain, implying that there should have been an
inspection prior to placing the inmate in the pen” the expert said “[y]es, sir.”
The expert opined that since Hampton was a yard officer on the day of the
attacks, this order applied to her and that she implicitly had a duty to inspect
the pens before inmates were placed in them. However, there is no indication
that Hampton knew of this order or that she had been informed by anyone that
it was her duty to inspect the inside of pens to find any weapons that might be
hidden in them on the day of the attacks.
      The dissent points to Hampton’s testimony that “‘[m]y job was to go
around the pens to make sure that [sic] wasn’t nothing going on.’” 72 But this
is not a statement that she thought that she was to go inside the pens, before
or after prisoners were taken into them, to search for concealed weapons.
Similarly, the dissent quotes Commissioner Epps entirely out of context in
relying on Epps’s testimony that “‘[n]ormally, your pens is inspected by the
individual who is out maintaining security at the pens.’” 73 The dissent says
that this “implies that it was Hampton’s job as the yard officer to do the
inspection.” 74 But the undisputed testimony from at least three witnesses at
trial was that, for safety reasons, the policy that was in place and followed at
the prison was that the officer who was in possession of the block gun was not
to go into the exercise pens. The undisputed evidence was that Hampton
complied with the policy that was actually in place at the prison regarding the
yard officer in possession of block gun.



      72   Post at 11.
      73   Post at 11.
      74   Post at 11.
                                        30
   Case: 12-60933      Document: 00513132944     Page: 31   Date Filed: 07/28/2015



                                  No. 12-60933
        George Davenport, a correctional officer at the prison with the rank of
captain at the time of the attacks, testified that Hampton could not have had
a duty to search the pens “because she was the one that had the block gun, and
with the block gun, you don’t want to come in proximity of the inmates.
Because if you go inside that pen trying to conduct a search, you’ve got another
pen right next to it and one right behind it . . . .” Hampton similarly testified
that when she had the block gun, she stayed outside the pens because an
offender could easily dispossess her of the weapon. She said that she had the
block gun when the prisoners were escorted into the yard on the day in
question and, accordingly, it was not her job to search the pens. The evidence
is also undisputed that at all times when Hampton was on duty in the yard on
the day of the attacks, prisoners were being taken in and out of the exercise
pens.
        Artis Hobbs, the director of the Department of Corrections in Arkansas
at the time of trial, testified as an expert witness on behalf of the defense. He
explained that, pursuant to the American Correctional Association’s
standards, as the supervisor, Lieutenant Taylor or his designee—but not
Sharon Hampton—was responsible for inspecting the pens on the day of the
attacks. He also confirmed that, because Hampton was in possession of the
block gun, her job was to “be as far away as she can be within range to effect a
good shot if she have [sic] to use the block gun.” Finally, he testified that, the
text of the post order notwithstanding, it was not Hampton’s responsibility to
search the pens.
        The plaintiffs’ expert opined that Hampton’s failure to inspect the pens
on the day of the attacks amounted to deliberate indifference. But there was
no evidence to support an inference that Hampton knew of any duty to inspect
the pens while she was in possession of the block gun.          For the reasons
discussed above regarding expert testimony, the plaintiffs’ expert’s testimony
                                       31
   Case: 12-60933     Document: 00513132944      Page: 32   Date Filed: 07/28/2015



                                  No. 12-60933
cannot establish Hampton’s actual knowledge of a policy absent some
evidentiary basis for her knowledge of the policy, nor can the expert’s opinion
be considered as evidence that Hampton knowingly violated such a policy, or
that she subjectively appreciated a risk to inmates in violating such a policy.
The district court erred in relying on the plaintiffs’ expert testimony as
evidence that Hampton’s failure to inspect the pens could support the jury’s
finding of deliberate indifference.
      The dissent interjects a theory of liability that the plaintiffs did not
pursue in the district court in response to Hampton’s motion for judgment as
a matter of law, that the plaintiffs have been unwilling to embrace on appeal,
and that finds no support in the record.
                                *      *      *
      For the reasons considered above, we REVERSE the district court’s
judgment against Hampton.




                                      32
    Case: 12-60933     Document: 00513132944      Page: 33    Date Filed: 07/28/2015



                                   No. 12-60933
JENNIFER WALKER ELROD, Circuit Judge, joined by HAYNES and
HIGGINSON, Circuit Judges, concurring in the judgment:
      As reflected by the superb majority and dissenting opinions, the question
of whether the record contains sufficient evidence to support a finding of
deliberate indifference is a close and difficult one. In my view, this case can be
resolved more easily by focusing on the issue of causation, as the evidence is
insufficient to support a finding that Hampton’s actions caused plaintiffs’
injuries. Accordingly, I concur only in the judgment. Cf. Salinas v. Texas, 133
S. Ct. 2174, 2184 (2013) (Thomas, J., concurring in the judgment) (“I think
there is a simpler way to resolve this case.”).
                                         I.
      In addition to proving that the defendant was deliberately indifferent, a
plaintiff must prove that the defendant’s deliberate indifference caused the
plaintiff’s injury. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062,
1074 (9th Cir. 2013) (“[P]laintiffs alleging deliberate indifference must also
demonstrate that the defendants’ actions were both an actual and proximate
cause of their injuries.”); Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1584 (11th
Cir. 1995) (“[D]eliberate indifference . . . must . . . have been the proximate
cause of the plaintiffs’ injuries . . . .” (internal quotation marks omitted)). Thus,
in order to establish liability against Hampton, “the Plaintiffs must prove that
[Hampton] set in motion events that would foreseeably cause the deprivation
of Plaintiffs’ constitutional rights.” Morris v. Dearborne, 181 F.3d 657, 672 (5th
Cir. 1999).   In my view, the record does not support the conclusion that
Hampton’s actions set the ensuing events into motion, and even if it did,
liability still would not attach because Taylor’s dropping the keys to the
exercise pens was an unforeseeable, superseding cause of plaintiffs’ injuries.


                                         33
   Case: 12-60933    Document: 00513132944      Page: 34   Date Filed: 07/28/2015



                                 No. 12-60933
                                       A.
      The record in this case does not contain evidence that Hampton’s actions
set the ensuing events into motion. To the contrary, the evidence allows only
the conclusion that the events in the exercise yard would have occurred
regardless of whether Hampton supplied Taylor with extra ammunition for the
block gun. The timeline is undisputed: (1) Hampton handed Taylor the block
gun but not the ammunition; (2) two inmates escaped from their exercise pens
and ran toward Taylor; (3) Taylor pointed the block gun at the inmates but did
not attempt to fire it, dropped the keys to the exercise pen, and fled the yard;
and (4) the inmates used the keys to release other inmates and then to access
the plaintiffs’ pens, where the attacks occurred.
      These events followed one another in time, but chronology is not
causation. As for the inmates, there is no evidence suggesting that the inmates
knew Taylor was short on ammunition; thus, Hampton’s actions played no role
in their decision to launch an attack. As for Taylor, there is no evidence
suggesting that he would not have abandoned his post if he had additional
ammunition. In fact, the record contains a statement from Taylor in which he
explains his reason for fleeing. Absent from that statement is any indication
that he fled because he lacked ammunition for the block gun: “I raised the
Block Gun and pointed in the direction of both inmates. Inmate Nash and
Inmate Hayes hesitated and I, not knowing how many inmates were out,
decided to run into the building. I admit that I panicked and somehow dropped
the keys to the Exercise Pens.” In other words, Taylor fled because he was
afraid, not because he did not have two extra rounds of ammunition in his
pocket. Taylor had no idea how many prisoners were on the loose, and he was
not waiting around to do a head count and an assessment of his supply of
rubber pellets.
                                      34
    Case: 12-60933       Document: 00513132944          Page: 35     Date Filed: 07/28/2015



                                       No. 12-60933
       The dissenting opinion states that “Taylor may have assumed the gun
was loaded but realized that he had no extra ammunition, leaving him with at
most one round to stop two armed inmates,” but this speculation is inconsistent
with Taylor’s statement. Although the jury was free to make rational and
supportable inferences from the record evidence, it was not permitted to
engage in mere conjecture or to make unreasonable inferences. See Huffman
v. Union Pac. R.R., 675 F.3d 412, 426 (5th Cir. 2012) (“Jurors still may not
simply guess.”); McConney v. City of Hous., 863 F.2d 1180, 1186 (5th Cir. 1989)
(“[P]lainly unreasonable inferences or those which amount to mere speculation
or conjecture do not suffice.”); Nichols Constr. Corp. v. Cessna Aircraft Co., 808
F.2d 340, 346 (5th Cir. 1985) (“Because of the requirement that the verdict be
supported by substantial evidence, a verdict may not rest on speculation and
conjecture.”).
       The record does not contain any evidence that Hampton’s actions
influenced either the inmates’ or Taylor’s actions. The only conclusion the
record evidence permits is that the tragic events in the exercise yard would
have played out the same way—with the inmates launching an attack and
Taylor fleeing—regardless of whether Hampton had provided Taylor with the
extra ammunition. Therefore, Hampton’s failure to give Taylor ammunition
did not set in motion the events leading to plaintiffs’ injuries, and thus was not
the cause of plaintiffs’ injuries. 1



       1  The district court cited two snippets of testimony that purportedly supported the
jury’s finding of causation. However, neither is on-point. The first piece of testimony is from
Hampton herself; she testified that her failure to load the block gun “could have and it could
not [have]” caused plaintiffs’ injuries. This is a mere truism—anything “could have or could
not have” played a role. It is not evidence that Hampton’s acts actually did cause plaintiffs’
injuries. Plaintiffs’ counsel repeatedly sought a concession on causation from Hampton, but
she did not oblige. The second piece of testimony is from plaintiffs’ expert. Although
plaintiffs’ expert offered numerous opinions, he did not state that Hampton’s failure to
                                              35
    Case: 12-60933         Document: 00513132944           Page: 36     Date Filed: 07/28/2015



                                         No. 12-60933
                                                B.
       Even assuming arguendo that Hampton’s actions caused Taylor to flee,
Hampton still would not be liable because Taylor’s dropping the keys was an
unforeseeable, superseding cause of plaintiffs’ injuries. When the act of a third
person “actively operates in producing harm to another after the [defendant’s
deliberately indifferent] act or omission has been committed,” the third
person’s act is deemed an “intervening force.” Restatement (Second) of Torts
§ 441 (1965). 2 If this “intervening force” is not a foreseeable result of the
defendant’s deliberate indifference, then the intervening force is a
“superseding cause” and the defendant cannot be held liable for the resulting
harm. Id. at § 440; accord Murray v. Earle, 405 F.3d 278, 290–91 (5th Cir.
2005). In this manner, the “superseding cause” doctrine cuts off the liability of
an actor when the plaintiff’s injury “was actually brought about by a later
cause of independent origin that was not foreseeable.” Exxon Co., U.S.A. v.
Sofec, Inc., 517 U.S. 830, 837 (1996) (internal quotation marks omitted).
       Here, it is undisputed that the escaped inmates could not have accessed
the plaintiffs’ pens without the keys that Taylor dropped. Therefore, Taylor’s



provide Taylor with ammunition was a cause of plaintiff’s injuries. He opined that Hampton’s
failure to inspect the pens constituted deliberate indifference, that Hampton’s failure to end
yard call in a timely fashion constituted deliberate indifference, and that Hampton’s failure
to check the block gun and to give Taylor ammunition for the block gun constituted deliberate
indifference. He also testified that Hampton’s failure to inspect the pens was a contributing
cause of plaintiffs’ injuries and that Hampton’s failure to end yard call in a timely fashion
was a contributing cause of plaintiffs’ injuries. Plaintiffs’ expert did not, however, testify that
Hampton’s failure to give ammunition to Taylor was a contributing cause of plaintiffs’
injuries.

       2 Many of the cases and authorities discussing the “superseding cause” doctrine do so
in the context of negligence, rather than deliberate indifference. The principle applies the
same way in both contexts. See, e.g., Conn v. City of Reno, 591 F.3d 1081, 1101 (9th Cir.
2010), cert. granted, judgment vacated sub nom. City of Reno, Nev. v. Conn, 131 S. Ct. 1812,
(2011), and opinion reinstated, 658 F.3d 897 (9th Cir. 2011).
                                               36
   Case: 12-60933     Document: 00513132944     Page: 37   Date Filed: 07/28/2015



                                 No. 12-60933
dropping the keys was an intervening force that actively operated in producing
harm to the plaintiffs. Whether Hampton can be held liable for plaintiffs’
injuries, despite this intervening force, turns on whether the intervening force
also was a “superseding cause”—i.e., whether Taylor’s dropping the keys was
a foreseeable result of Hampton’s failure to provide Taylor with ammunition.
In my view, it was not foreseeable that Hampton’s failure to provide Taylor
with two rubber pellets would result in Taylor’s handing over to the inmates
the keys to the exercise pens.
      To be sure, an intervening act of negligence—and Taylor’s dropping the
keys certainly was negligent—is not automatically a superseding cause that
cuts off the liability of preceding actors. This is because even a negligent act
can be foreseeable. See, e.g., Gordon v. Niagara Mach. & Tool Works, 574 F.2d
1182, 1193 (5th Cir. 1978). To help draw the line between foreseeable and
unforeseeable negligent acts by third parties, we have explained that an
intervening negligent act is not a superseding cause if: (1) the defendant should
have realized that the third person might act in the way he did; (2) “a
reasonable man knowing the situation existing when the act of the third person
was done would not regard it as highly extraordinary that the third person had
so acted;” or (3) “the intervening act is a normal consequence of a situation
created by the [defendant’s] conduct.” Becker v. Tidewater, Inc., 586 F.3d 358,
372 (5th Cir. 2009) (internal quotation marks omitted); see also Restatement
(Second) of Torts § 447; Prosser and Keeton, The Law of Torts § 44 (5th ed.
1984).
      Taylor’s dropping the keys does not fit into any of those three boxes. As
for (1), although Hampton perhaps should have realized that a lack of
ammunition could cause Taylor to flee, Hampton had no reason to believe that
Taylor would drop the keys and allow the inmates to obtain them. As for (2),
                                       37
    Case: 12-60933   Document: 00513132944      Page: 38   Date Filed: 07/28/2015



                                 No. 12-60933
a reasonable person would regard it as “highly extraordinary” that a prison
guard abandoned the keys in a place the inmates could obtain them. As for (3),
Taylor’s dropping the keys is not the “normal consequence” of his being short
on ammunition. Simply put, Hampton could not have foreseen that Taylor
would respond to a crisis in the exercise yard by allowing the inmates to obtain
the keys. Without the keys, the escaped inmates could not have injured the
plaintiffs.   Therefore, in my view, Taylor’s act was an unforeseeable,
superseding cause of plaintiffs’ injuries, and Hampton cannot be held liable.
                                      II.
      It is true that “[w]e accord great deference to the jury’s verdict when
evaluating the sufficiency of the evidence,” Thomas v. Tex. Dep’t of Criminal
Justice, 220 F.3d 389, 392 (5th Cir. 2000), and that we “are not to tamper
lightly with the considered judgment of those drawn together at one point in
time to render a judgment that is representative of the good common sense of
the American people,” E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 452
(5th Cir. 2013) (en banc) (internal quotation marks omitted).          However,
deferential review is not non-existent review, and we accordingly have
reversed jury verdicts where the record is devoid of support for the jury’s
finding of causation. See, e.g., Huffman, 675 F.3d at 426; Hill v. Anderson, 420
F. App’x 427, 432 (5th Cir. 2011); Nichols Constr. Corp., 808 F.2d at 347. Here,
the causal link between Hampton’s actions and the close-in-time assaults was
severed not once, but twice.      Hampton’s failure to provide Taylor with
ammunition did not influence the inmates’ or Taylor’s actions in any way, and
even if it did, Taylor’s dropping the keys was a superseding cause. Accordingly,
I would reverse the judgment of the district court.




                                      38
   Case: 12-60933     Document: 00513132944        Page: 39   Date Filed: 07/28/2015



                                 No. 12-60933
JAMES E. GRAVES, JR., Circuit Judge, joined by DENNIS, SOUTHWICK,
and COSTA, Circuit Judges, dissenting:
      The question in this case is whether there is sufficient evidence
supporting the jury’s verdict that prison guard Sharon Hampton was
deliberately indifferent when she knowingly took multiple actions that created
an obvious and substantial risk of attack and injury to the inmates she was
charged with protecting. Were the majority the jury in this case, I would likely
conclude that there was sufficient evidence to support its verdict. But because
we are prohibited from substituting our own fact-finding for that of the jury, I
would affirm the decision of the district court.
                                        I.
      This is a fact-bound case in which we are called upon to review the
sufficiency of the evidence supporting a jury finding of deliberate indifference
under the Eighth Amendment. We review the district court’s denial of a
motion for judgment as a matter of law de novo. Thomas v. Tex. Dept. of
Criminal Justice, 220 F.3d 389, 392 (5th Cir. 2000). “We accord great deference
to the jury’s verdict when evaluating the sufficiency of the evidence, viewing
all the evidence and drawing all reasonable inferences in the light most
favorable to the verdict.” Id. A motion for judgment as a matter of law should
be granted only when “the facts and inferences point so strongly in favor of the
movant that a rational jury could not reach a contrary verdict.” Id. (quoting
Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir. 1996)). “If there
is substantial evidence of such quality and weight that reasonable and fair-
minded men in the exercise of impartial judgment might reach different
conclusions, the motion should be denied.” Cantu v. Jones, 293 F.3d 839, 844
(5th Cir. 2002) (internal alterations and quotation omitted).


                                       39
   Case: 12-60933     Document: 00513132944     Page: 40   Date Filed: 07/28/2015



                                 No. 12-60933
      There is no argument on appeal that the jury heard evidence it should
not have heard or that any relevant evidence was excluded. There is no dispute
that the jury was properly instructed about deliberate indifference and
causation, as well as general principles such as direct and circumstantial
evidence, credibility of witnesses, and the standard of proof. The district court
reviewed all the evidence carefully at every stage of the case, eventually
granting judgment as a matter of law to the second defendant on trial, George
Davenport, while allowing the claim against Hampton to go to the jury. Post-
verdict, the district court again carefully reviewed the evidence of deliberate
indifference in denying Hampton’s renewed motion for judgment as a matter
of law. In reviewing the evidence of Hampton’s acts and omissions, the district
court concluded:
      Christopher Epps, Commissioner of the Department of
      Corrections, testified that on July 25, 2007, the date in question,
      Unit 32 was a dangerous place. Based on an investigation
      prompted by MDOC, Hampton was suspended for ten days for
      leaving the inmates on the yard beyond the allowable time,
      handing off an unloaded block gun on the yard, and taking the
      ammunition when she went inside the building after handing off
      the gun. Hampton acknowledged that on July 25, 2007, she did
      not inspect the pens, assumed the block gun was already loaded,
      and made a mistake in not checking the gun for ammunition.
      Larry Haefali, Plaintiffs’ witness designated as a correctional
      practice and standards expert, opined that Hampton’s failure to
      inspect the pens on the day in question was a violation of ACA
      Standards, the MDOC post order, and the standard of care.
      Moreover, Haefali testified that Hampton’s violations amounted to
      deliberate indifference to the safety of Plaintiffs and was a
      contributing cause of Reed’s death and the others’ injuries.
The court then concluded that “Taking the facts in the light most favorable to
the non-moving party, the jury had a legally sufficient evidentiary basis to find
for the Plaintiffs.” Because I agree with the district court, I would affirm.

                                       40
   Case: 12-60933     Document: 00513132944      Page: 41     Date Filed: 07/28/2015



                                 No. 12-60933
                                       A.
      Hampton first argues, and the majority agrees, that there was
insufficient evidence that she was deliberately indifferent. Hampton argues
that there is insufficient evidence to support the jury’s verdict that by failing
to check if the block gun was loaded and knowingly taking the ammunition for
the gun with her and leaving an improperly armed guard on the yard, she
disregarded a substantial risk of harm to the inmates. She argues that, at
most, she was negligent. Hampton also argues that the risk of harm from
inmate attacks at Unit 32 was too generalized to have alerted her to the risk
of leaving Taylor without the additional ammunition when she left the yard.
      “It is well established that prison officials have a constitutional duty to
protect prisoners from violence at the hands of their fellow inmates.” Longoria
v. Texas, 473 F.3d 586, 592 (5th Cir. 2006); see Farmer v. Brennan, 511 U.S.
825, 832-33 (1994).      “Having incarcerated persons with demonstrated
proclivities for antisocial criminal, and often violent, conduct, and having
stripped them of virtually every means of self-protection and foreclosed their
access to outside aid, the government and its officials are not free to let the
state of nature take its course.” Farmer, 511 U.S. at 834 (internal alterations,
quotations and citations omitted).   To     prevail   on    their   claims   against
Hampton, Plaintiffs were required to demonstrate two things: that they were
“incarcerated under conditions posing a substantial risk of serious harm,” and
that Hampton was deliberately indifferent to that risk. Id.
      A prison official is deliberately indifferent when “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.   Deliberate indifference thus requires the official’s subjective
                                       41
   Case: 12-60933     Document: 00513132944     Page: 42   Date Filed: 07/28/2015



                                 No. 12-60933
awareness of risk; it is not enough that a reasonable official should have known
of the risk. See id. at 837-38. However, “[w]hether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial
evidence” or “from the very fact that the risk was obvious.” Id. at 842. With
regard to inmate-on-inmate attacks, Farmer specifically holds that if a
substantial risk of inmate-on-inmate attacks was “longstanding, pervasive,
well-documented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been exposed
to information concerning the risk and thus ‘must have known’ about it,” then
a jury could reasonably conclude that the official “had actual knowledge of the
risk.” Id. at 842-43 (quotation omitted).
      The evidence presented at trial was more than sufficient for a reasonable
jury to find that Hampton knew that leaving an under-armed guard on the
yard created a substantial and obvious risk of inmate-on-inmate attacks and
that Hampton deliberately disregarded that risk when she decided to do it
anyway. The evidence establishes that Unit 32 was not a typical unit in a
typical prison, but was designated to hold some of the most dangerous inmates
in the Mississippi prison system, including rival gang members, inmates that
were too violent to be in the general population, and inmates who had
committed serious rule violations. Then-MDOC Commissioner Christopher
Epps testified and described a culture of pervasive violence and even employee
corruption, and an environment in Unit 32 where weapons were readily
available, fighting and stabbing were frequent and murders were not
uncommon. Epps testified that the pens were constructed specifically because
of the prevalence of fighting and stabbings in the yard. He testified that it was
known that inmates made weapons out of anything, including making shanks
                                       42
    Case: 12-60933    Document: 00513132944       Page: 43   Date Filed: 07/28/2015



                                  No. 12-60933
out of the pens themselves, and that officials knew of the possibility that
inmates had placed weapons in their pens, or even that guards had placed
weapons there for the inmates. Epps also testified that less than a month prior
to the incident, a guard affiliated with a gang had smuggled a gun to inmates
inside Unit 32, which was to be used to kill rival gang members, further
highlighting the pervasive danger of inmate-on-inmate violence in Unit 32. He
testified that this previous incident “contributes, in my professional opinion, to
this - - why we’re here today.” Epps told the jury that “the facts are, gang in,
gang out, blood in, blood out. When you join, you join knowing that your life is
put on the line. And the facts are, we can blow all of the hype for the jury and
make all the nice statements and speeches, but at the end of the day, the
incident was going to happen either on the pens or somewhere else.”
      Additional evidence described the explosive conditions at Unit 32 and
further supported Epps’ testimony regarding the known substantial risk of
inmate-on-inmate violence. Ricky Scott, a gang specialist for MDOC, testified
that Reed, Williams, and Bynum had been attacked pursuant to an ongoing
“war” between rival gangs, and that inmates would try “to beat the security
whichever way they can” in order to attack other inmates. Lawrence Haefeli,
Plaintiffs’ expert in corrections, explained several specific factors that gave rise
to a particularly dangerous situation in Unit 32 at the time of the incident,
including that the unit housed gang members, inmates too violent to be in the
general population, and mentally ill inmates, and that the prison’s
classification system, which did not allow inmates to work their way out of
segregation, created a “desperate” situation for inmates.
      This evidence, including testimony from the Commissioner of the
Department, portrays a brutal and violent unit where the substantial risk of
inmate-on-inmate violence, especially in the yard, was “longstanding,
                                        43
   Case: 12-60933     Document: 00513132944     Page: 44    Date Filed: 07/28/2015



                                 No. 12-60933
pervasive, [and] well-documented,” and was particularly heightened around
the time of the attack on the Plaintiffs.     The jury could reasonably have
concluded that Hampton must have been aware of the risk of attacks in the
yard. Farmer, 511 U.S. at 842-43.
      The majority asserts that the jury could not impute Epps’ knowledge of
the exceedingly violent and explosive nature of Unit 32, including past violent
incidents in the yard, to Hampton, an eight-year veteran of MDOC. The
majority substitutes its own judgment for that of the jury.        The majority
apparently would conclude that only Hampton’s acknowledgment that she was
aware of a substantial risk would suffice. Yet it is clear that direct evidence
regarding Hampton’s subjective state of mind is not required, so long as the
risk was sufficiently obvious. Farmer, 511 U.S. at 842. Further, Farmer
provides that, even if there is sufficient evidence that a risk was obvious, “it
remains open to the officials to prove that they were unaware even of an
obvious risk to inmate health or safety.” Id. at 844. Thus, Hampton could have
produced evidence that even though the risk of inmate-on-inmate attacks on
the yard was obvious, she was in fact not subjectively aware of it. She did not.
The evidence that was presented was more than sufficient to allow the jury to
find that the risk was obvious and that an experienced guard working in the
unit must have known of it.
      The evidence further shows that Hampton consciously and knowingly
made multiple decisions that disregarded the obvious risk of harm from
inmate-on-inmate attacks on the yard at Unit 32.           It is undisputed that
Hampton never checked that the block gun was loaded after she received it
from Taylor, despite evidence showing that it was her duty to check the gun
upon receiving it, and despite being the officer on duty in the yard for multiple
hours that day. It was a disputed question whether Hampton could or should
                                       44
   Case: 12-60933     Document: 00513132944      Page: 45   Date Filed: 07/28/2015



                                  No. 12-60933
have checked the gun during yard call, but resolution of that dispute is a
quintessential jury question. It is undisputed that Hampton decided to go
inside to retrieve a form for an inmate who said he would not leave the yard
unless she did.     It is undisputed that Hampton knowingly took the two
additional rounds of ammunition inside with her, although she knew that
prison policy required her to leave them with Taylor when she gave him the
block gun. Hampton testified that “I handed Lieutenant Taylor the gun and
the keys, and thinking that I’m going to come back out in less than a minute
or two, I took the rounds with me.” She did not simply forget about the
ammunition; she thought about her actions and decided to do it anyway,
knowingly leaving an under-armed guard on the yard. Although Hampton
testified that she intended to be inside for “less than a minute or two,” she was
actually gone for at least five to six minutes, when the attack began and she
was still inside with the ammunition. In a situation as volatile as the one that
existed in Unit 32 at the time, with a past history of serious inmate violence in
the yard, the jury was entitled to find that knowingly leaving a guard without
sufficient ammunition, and thus without the necessary means to keep order
and defend himself or other inmates, was deliberately indifferent to an obvious
risk of harm.
      In addition, Plaintiffs’ expert in corrections testified to his conclusion
that Hampton’s actions both violated the correctional standards followed by
MDOC and amounted to deliberate indifference. The majority’s discussion of
whether the expert’s opinion alone could create a fact issue is utterly irrelevant
to this case; Haefeli’s expert opinion was one piece of evidence among others
that allowed the jury to reach the verdict that it did. Haefeli testified that his
opinion was based on documents and evidence related to the incident,
including MDOC’s internal investigative report, post orders for officers at Unit
                                       45
   Case: 12-60933     Document: 00513132944     Page: 46   Date Filed: 07/28/2015



                                 No. 12-60933
32, Defendants’ discovery responses, Epps’ deposition and trial testimony,
Davenport’s deposition and trial testimony, and Hampton’s own deposition and
trial testimony, which he referenced and explained to the jury, including
explaining how Hampton’s actions deviated from the post order for yard
officers and how her own admitted failures violated correctional standards.
See Wackman v. Rubsamen, 602 F.3d 391, 400 (5th Cir. 2010) (“An expert’s
opinion must be supported to provide substantial evidence; we look to the basis
of the expert’s opinion, and not the bare opinion alone.” (quotation omitted)).
Haefeli’s ultimate conclusion that Hampton was deliberately indifferent was
based, in part, on Hampton’s own deposition testimony that she knew the
ammunition was important because, absent ammunition for the block gun,
there was no way to protect the inmates or other officers from an attack.
Though the expert was permitted to testify to the ultimate issue of deliberate
indifference—without objection from Hampton—it was not necessary for him
to do so in order to create a fact issue for the jury regarding Hampton’s
deliberate indifference.
      Further, Hampton was disciplined and suspended for ten days because
her failing to check the block gun and taking the ammunition inside with her
constituted rule violations involving a threat to human life or safety. While
the discipline standing alone could not be dispositive proof that Hampton was
deliberately indifferent, Hampton’s failure to follow protocols put in place for
the safety of guards and inmates is certainly a relevant fact that the jury was
entitled to take into account. Of course, not every mistake or protocol violation
by a prison guard becomes deliberate indifference simply because prisons are
dangerous. If an officer acts or responds reasonably in a situation involving a
risk of inmate-on-inmate attack, there will be no liability, even if the harm is
not averted. Farmer, 511 U.S. at 844. Even if an officer acts without the due
                                       46
    Case: 12-60933    Document: 00513132944      Page: 47    Date Filed: 07/28/2015



                                  No. 12-60933
care a reasonable person would use, such that the officer is only negligent,
there will be no liability. See Davidson v. Cannon, 474 U.S. 344, 347 (1986).
      Here, the record is replete with evidence allowing the jury to find that
leaving Taylor with insufficient ammunition created a substantial and obvious
risk of inmate-on-inmate violence in the yard, and that Hampton knowingly
took several actions that showed deliberate disregard of that risk.
                                        B.
      Hampton argues, essentially, that the jury could not find that she was
aware of a risk of harm unless an identical incident in which inmates broke
out of their pens had previously occurred. But Farmer makes clear that a
prison official need not anticipate the specific way an attack will unfold in order
for that risk to be substantial enough to incur liability. Farmer provides:
      Nor may a prison official escape liability for deliberate indifference
      by showing that, while he was aware of an obvious, substantial
      risk to inmate safety, he did not know that the complainant was
      especially likely to be assaulted by the specific prisoner who
      eventually committed the assault. The question under the Eighth
      Amendment is whether prison officials, acting with deliberate
      indifference, exposed a prisoner to a sufficiently substantial “risk
      of serious damage to his future health,” and it does not matter
      whether the risk comes from a single source or multiple sources,
      any more than it matters whether a prisoner faces an excessive
      risk of attack for reasons personal to him or because all prisoners
      in his situation face such a risk.
Farmer, 511 U.S. at 843. For example, in Cantu v. Jones, we upheld a jury
verdict of deliberate indifference against defendant prison officials, even
though the case “involve[d] an extraordinary set of circumstances” that led to
inmates attacking other inmates. 293 F.3d at 844-45.
      Similarly, in Hernandez ex rel. Hernandez v. Texas Department of
Protective & Regulatory Services, a due process case, we held that “[a]lthough

                                        47
    Case: 12-60933     Document: 00513132944      Page: 48   Date Filed: 07/28/2015



                                   No. 12-60933
deliberate indifference is determined by a subjective standard of recklessness,
this court has never required state officials to be warned of a specific danger.”
380 F.3d 872, 881 (5th Cir. 2004) (internal citation omitted). In Hernandez,
the defendant government officials argued that they could not be held liable
for the suffocation of a child in foster care, because there was no evidence that
they had actual knowledge that placing the child with the foster parents
entailed a “specific danger of the particular injury of suffocation” and
“deliberate indifference requires actual knowledge of suffocation.” Id. We
rejected that argument, and explained that to hold otherwise “would be
inapposite with” Farmer. Id. at 881-82. Instead, we held that “the central
inquiry” was “whether the state social workers were aware of facts from which
the inference could be drawn, that placing children in the . . . foster home
created a substantial risk of danger. We need not address the form that such
a risk might eventually manifest.” Id. at 882. We concluded that “a state
official may not escape deliberate indifference liability . . . by contending that
the particular method of harm, i.e. how the abuse was carried out, was not
envisioned.” Id.; see also Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)
(“The official’s knowledge of the risk need not be knowledge of a substantial
risk to a particular inmate, or knowledge of the particular manner in which
injury might occur.”); Haley v. Gross, 86 F.3d 630, 643 n.33 (7th Cir. 1996)
(“Sergeant Ellis and Superintendent Gross are no less liable for deliberate
indifference because, while they knew that Wilborn presented a substantial
risk of serious harm to Haley, they may not have envisioned that Wilborn
would light the cell on fire.”).
      The evidence was sufficient for the jury to find that leaving insufficient
ammunition for Taylor to use in the event of a security breach created a
substantial and obvious risk of harm from inmates attacking other inmates in
                                       48
   Case: 12-60933     Document: 00513132944      Page: 49   Date Filed: 07/28/2015



                                  No. 12-60933
the yard.     The Plaintiffs were not required to show that Hampton knew
precisely how such an attack might unfold.
                                       C.
      In addition, although the focus of this appeal has become Hampton’s
actions with regard to the two rubber bullets for the block gun, the jury actually
heard evidence regarding additional failures by Hampton which the jury could
have found constituted deliberate indifference. The district court expressly
relied on this evidence in denying judgment as a matter of law. Specifically,
at trial, the Plaintiffs produced evidence that it was Hampton’s duty as yard
officer to inspect the pens, and that she did not. While Hampton and Epps
vehemently contested whether it was Hampton’s duty to inspect the pens that
day, the Plaintiffs presented evidence that would support a finding that it was.
Plaintiffs presented a “post order,” which is a description of duties, for yard
officers, which provided that yard officers should inspect the pens before an
inmate is placed inside. Hampton testified that her post that day was as the
yard officer, and that “My job was to go around the pens to make sure that [sic]
wasn’t nothing going on.” Epps testified that “Normally, your pens is inspected
by the individual who is out maintaining security at the pens,” which implies
that it was Hampton’s job as the yard officer to do the inspection. Epps
testified that it was known that inmates made weapons out of the pens, or had
weapons placed inside the pens by someone else. Indeed, multiple perpetrators
of the attack were able to acquire weapons by storing them in the pens or
having them placed in their pens by someone else. Inmate Hayes testified that
there were “weapons waiting on me” in the pen and that he knew the guards
did not check the pen before he was placed inside it. Inmate House testified
that he also had weapons waiting in his pen, placed there by other inmates the
day before.
                                       49
    Case: 12-60933      Document: 00513132944    Page: 50   Date Filed: 07/28/2015



                                  No. 12-60933
      Thus, there was evidence that the jury could have believed that it was
Hampton’s duty to inspect the pens, and that she failed to do so, which was
deliberately indifferent to an obvious risk that the inmates might smuggle
weapons into the pens or use something in the pen as a weapon against other
inmates. This type of evidentiary dispute is unquestionably for the jury to
resolve.
                                        II.
      Hampton also argues that there is insufficient evidence supporting the
conclusion that her actions were the cause of Plaintiffs’ injuries. She argues
that Taylor’s failure to fire the block gun and his dropping the keys to the pens
were the only causes of the harm to the Plaintiffs.
       “We begin with the obvious proposition that the question of causation is
‘intensely factual.’” Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir. 1999)
(quoting Savidge v. Fincannon, 836 F.2d 898, 905 (5th Cir. 1988)). We have
held that the proximate causation requirement in § 1983 cases is satisfied with
proof that the defendant “set in motion events that would foreseeably cause
the deprivation of Plaintiffs’ constitutional rights.” Id. at 672.
      This jury was not armed with the law of causation that is now being
applied by the concurring opinion. With regard to causation, the jury was
instructed only that:
            [T]he Plaintiffs have the burden to identify the Defendant or
      Defendants who are either personally involved in the
      constitutional violation or whose acts are causally connected to the
      constitutional violation alleged.
            If you find that Defendant Sharon Hampton had no personal
      or direct involvement, or was not causally connected to the
      incident, then you should return a verdict for the Defendant
      Sharon Hampton.


                                        50
    Case: 12-60933       Document: 00513132944         Page: 51     Date Filed: 07/28/2015



                                      No. 12-60933
Hampton proposed this instruction. The jury was not instructed on actual
causation, proximate causation or supervening causes.                    Hampton never
proposed any such instruction and has never argued that the jury instructions
were deficient. Nor did Hampton assert causation as a basis for judgment as
a matter of law at any time before submission of the case to the jury.
       Hence, there was sufficient evidence to support the jury’s finding that
Hampton’s actions were causally connected to the Plaintiffs’ injuries. The
evidence is clear that, at first, only two inmates escaped, and there is
undisputed testimony from both Williams and Bynum that the two escaped
inmates stopped when Taylor pointed the gun at them. They only continued
to advance after he lowered the gun and instead retreated. While there is not
clear evidence of Taylor’s reasons for retreating, 1 it is an obvious inference that
he knew or realized that Hampton had not handed him the bullets when she
handed him the gun. Taylor may have assumed the gun was loaded but
realized that he had no extra ammunition, leaving him with at most one round
to stop two armed inmates. It is a logical inference that if he had the additional
rounds—that is, the number of rounds the Department had determined is
adequate to keep with the block gun—he might have been able to dissuade the
inmates from continuing with their attack or to hold them at bay until he could
radio for additional officers to assist. The Plaintiffs’ expert at trial testified
that Hampton’s failure to provide ammunition for the block gun and failure to
inspect the pens were contributing causes of the Plaintiffs’ injuries. Further,
while Hampton might not have anticipated that Taylor would specifically drop


       1  The concurring opinion points to Taylor’s unsigned statement to MDOC
investigators that “not knowing how many inmates were out, I decided to run inside the
building” as evidence of the reason for Taylor’s flight. When asked to swear that it was the
truth, Taylor specifically refused to sign the statement during the investigation. Taylor was
subsequently disciplined for making false statements during the investigation.
                                             51
    Case: 12-60933      Document: 00513132944    Page: 52   Date Filed: 07/28/2015



                                  No. 12-60933
the keys, Taylor’s panic and inability to control the situation are the natural
and probable consequences of leaving an insufficiently-armed guard on the
yard. Taylor dropping the keys is not an independent, unforeseeable event
that breaks the chain of causation, but the result of the out-of-control situation
that predictably resulted from Hampton effectively disabling the primary tool
at the guard’s disposal to control the yard.
      These are all inferences from the evidence that are within the province
of the jury to make, particularly given the abbreviated guidance the jury
received on the causation issue. There is no basis to reverse the jury verdict
that Hampton’s deliberate indifference caused the injuries to the Plaintiffs.
                                       III.
      Lastly, I note that this is not a qualified immunity case. Hampton
pleaded the affirmative defense of qualified immunity in her answer, but she
never moved for summary judgment based on qualified immunity, she did not
mention qualified immunity in her motion for judgment as a matter of law, and
she made only thinly-briefed arguments regarding qualified immunity in her
initial panel briefs.   She did not even mention qualified immunity in her
supplemental en banc brief. Thus, qualified immunity could not be grounds
for reversal.
                                       IV.
      This case comes to us on appeal after a jury verdict and involves fact-
intensive issues. After hearing the evidence of multiple failures by Hampton,
and the obvious risk of inmate-on-inmate attacks at Unit 32, a reasonable juror
could have found that Hampton’s actions were deliberately indifferent to a
substantial risk of harm and caused the Plaintiffs’ injuries. The district court’s
decision that the jury verdict is compatible with the law and the evidence in
the record should be affirmed. I therefore dissent.
                                       52
