                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                      January 23, 2007
                          FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                 No. 06-20388

                             Summary Calendar



CHARLES JAMES POMPEY;
                                                  Plaintiff-Appellee,

                                     versus

BRENDA CHENEY, ETC., ET AL.
                                                  Defendants,

DOUGLAS APPEL, ETC., O.D.                         Defendant-Appellant.




            Appeal from the United States District Court
            For the Southern District of Texas


                                 (4:03-CV-1543)

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

      Dr. Douglas Appel appeals from the district court’s order

denying him qualified immunity.               The plaintiff, Charles James

Pompey,    sued    Dr.   Appel    under   section    1983   for     deliberate

indifference to his medical needs while incarcerated, as proscribed

by the Eight Amendment’s right to be free of cruel and unusual

punishment.    The district court denied Appel’s motion for summary


      *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
judgment based on qualified immunity.         Because the district court

applied an incorrect legal standard, we vacate and remand.

     In reviewing an officer’s assertion of qualified immunity, a

court first determines whether the plaintiff alleges a violation of

a   constitutional     right.       Here    Pompey      alleges   deliberate

indifference, for which the appropriate mens rea is subjective

recklessness.1     That is, “[f]or an official to act with deliberate

indifference, 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.”2

     Yet the district court found a constitutional violation based

on objective recklessness, ruling that Appel knew or should have

known that Pompey faced a substantial risk of harm.               This error

improperly broadened the scope of Appel’s liability. We VACATE and

REMAND.




     1
      Farmer v. Brennan, 511 U.S. 825, 837–47 (1994).
     2
       See Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998). Under
exceptional circumstances, a prison official’s knowledge of a substantial risk
of harm may be inferred by the obviousness of the substantial risk. Reeves v.
Collins, 27 F.3d 174, 176 (5th Cir. 1983). The district court did not apply
this inference.

                                      2
