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

                                                 FILED
                                                                          July 1, 2009

                                     No. 08-30388                    Charles R. Fulbruge III
                                                                             Clerk

RONNIE L. MORGAN, JR.,

                                                 Plaintiff-Appellee
v.

CORNEL HUBERT, Warden, Elayn Hunt Correctional Center,

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:06-cv-5700


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Cornel Hubert, warden of the Elayn Hunt Correctional Center
(EHCC) in Louisiana, appeals the district court’s denial of qualified immunity
for his alleged involvement in the transfer of inmates from prisons affected by
Hurricane Katrina.       Ronnie Morgan, a prisoner transferred to EHCC from
Orleans Parish Prison (OPP), asserts violations of the Eighth Amendment for
injuries allegedly sustained there when he, a prisoner in protective custody, was
placed with the general prison population. Hubert moved to dismiss Morgan’s

       *
         Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Fifth Circuit Rule 47.5.4.
                                  No. 08-30388

complaint under Federal Rule of Civil Procedure 12(b)(6) on the basis of qualified
immunity, but the district court denied the motion as to Hubert’s individual
capacity. We vacate and remand for discovery limited to the issue of qualified
immunity.
  I. PROCEDURAL BACKGROUND AND FACTUAL ALLEGATIONS
      Morgan filed suit under 42 U.S.C. § 1983 against, among others, Warden
Hubert, in his individual and official capacities, and alleged violations of the
Eighth Amendment. In his original complaint, Morgan alleged that Hubert
“developed and pursued policies and customs that created the substantial risk
of bodily harm to [Morgan] and other inmates, and which evidence a deliberate
and gross failure to supervise his subordinates.” Morgan further alleged that
Hubert (1) failed to provide safety for OPP prisoners in protective custody, as
well as adequate food, housing and medical care; (2) failed to train his staff in
matters of inmate safety; (3) failed to train his staff to determine what remedial
action was necessary after an attack to prevent future assaults; and (4) failed to
provide medical care and protection to inmates after they were attacked.
      Hubert moved to dismiss on the basis of qualified immunity.             The
magistrate judge heard argument and ordered Morgan to amend his complaint
or file a reply in response to the defense of qualified immunity. He filed both,
alleging in his amended complaint that Hubert, as the policymaker for EHCC,
knew or should have known that transfers from OPP would include prisoners in
protective custody, and that such prisoners would need to be segregated from the
general prison population for their safety. Morgan claimed that Hubert had or
should have had procedures and policies in place to segregate these protective
custody prisoners, and should have taken steps to ensure that the policies were
followed respecting the prisoners from OPP. Morgan alleged that Hubert’s
failure to take the necessary steps created a substantial risk of harm to Morgan
and caused his injuries. Alternatively, Morgan alleged that Hubert’s failure to

                                        2
                                 No. 08-30388

have policies in place for the segregation of protective custody inmates created
a substantial risk of harm and caused Morgan’s injuries. Morgan emphasized
that these allegations described acts of Hubert personally, and that he failed
personally either to have the policies in place or to ensure that his staff was
adequately trained in them.
      After considering Morgan’s amended complaint and reply, the magistrate
judge recommended that Hubert’s motion be granted as to his official capacity
(because Hubert in this capacity is not a person under § 1983, a point Morgan
conceded), but denied as to his individual capacity.     The judge found that
Morgan adequately alleged violation of a constitutional right and that, if the
facts in the complaint were accepted as true, Hubert acted unreasonably and
was not entitled to qualified immunity. Hubert objected. The district court
denied Hubert’s motion as to his individual capacity, agreeing with the
magistrate judge that Morgan had alleged facts that, if true, established the
violation of a clear constitutional right and that Hubert’s failure to act
reasonably created a substantial risk to Morgan of which Hubert was
deliberately indifferent. Hubert appealed.
      As this appeal is interlocutory, predicated on the denial of a motion to
dismiss on the basis of qualified immunity, we take the facts alleged in Morgan’s
complaint as true. Morgan is a federal prisoner under the jurisdiction of the
United States Federal Bureau of Prisons. He was housed at OPP pursuant to
a contract between the U.S. Department of Justice and the Orleans Parish
Criminal Sheriff’s Office. OPP is run by Orleans Parish Criminal Sheriff Marlin
Gusman, another defendant in this case (though not a party to this appeal). For
reasons not clear from the record, Morgan was in protective custody at OPP.
      Following Hurricane Katrina’s landfall on August 29, 2005, OPP lost
power, and the inmates did not have food, water, medical care, or working
toilets. The prisoners, including Morgan, were transported on September 1,

                                       3
                                  No. 08-30388

2005, to EHCC and placed in a large field surrounded by guards with thousands
of other prisoners. Upon arriving at EHCC, Morgan and other prisoners in
protective custody informed the guard of their status and requested that they
not be placed with the general prison population.       One protective custody
prisoner told the guard that he saw his enemies in the field. The guard told
them not to disclose their status; Morgan told the guard that their clothing was
marked with the word “Federal.” The other prisoners gathered at the gates in
anticipation of the arrival of the protective custody prisoners and called out to
each other to draw attention to that fact.
      Despite the protestations of Morgan and the other prisoners, the guard
placed them in the field with the general prison population. Within minutes one
prisoner in protective custody was beaten and stabbed. When he sought help
from the guards, they allegedly shot at him, perhaps with a bean bag gun. Other
such inmates were also attacked. About thirty minutes after arriving, Morgan
too was beaten and stabbed in his head and neck. Like the other prisoner,
Morgan also sought help from the guards.         The guards allegedly rebuffed
Morgan too, responding with laughter; he was forced him to spend the night on
the field with his attackers, wandering about in blood-soaked clothing and too
terrified to sleep. The following day, he was transported to another prison
facility. The complaint alleges that while at EHCC, he did not receive medical
care or protection, despite having requested both from the guards.
           II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction to hear an interlocutory appeal from an order denying
qualified immunity to the extent it turns on a question of law. Behrens v.
Pelletier, 516 U.S. 299, 311 (1996).
      An appellate court reviewing the denial of the defendant’s claim of
      immunity need not consider the correctness of the plaintiff’s version
      of the facts, nor even determine whether the plaintiff’s allegations
      actually state a claim. All it need determine is a question of law:

                                       4
                                  No. 08-30388

      whether the legal norms allegedly violated by the defendant were
      clearly established at the time of the challenged actions . . . .

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). To the extent this appeal turns on
questions of fact, we lack jurisdiction to hear it.
      We review the district court’s denial of qualified immunity de novo.
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252 (5th Cir. 2005). We apply the
heightened pleading standard announced in Schultea v. Wood, in which we
observed that a district court may, after assessing a complaint under the normal
Federal Rule of Civil Procedure 8 standard, require the plaintiff to file a reply
under Rule 7 tailored directly at the defendant’s assertion of qualified immunity.
47 F.3d 1427, 1433–34 (5th Cir. 1995). We did not ground any such requirement
in Rule 9(b), but nevertheless required a plaintiff to plead more than
conclusions. Id. at 1434. Specifically, we reasoned that “a plaintiff cannot be
allowed to rest on general characterizations, but must speak to the factual
particulars of the alleged actions, at least when those facts are known to the
plaintiff and are not peculiarly within the knowledge of defendants.” Id. at 1432
(emphasis added). “Heightened pleading requires allegations of fact focusing
specifically on the conduct of the individual who caused the plaintiffs’ injury.”
Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
      The parties disagree regarding the substantive standard governing a Rule
12(b)(6) motion to dismiss. Hubert argues for the standard announced by the
Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), while
Morgan recites the test given by the Court in Conley v. Gibson, 355 U.S. 41,
45–46 (1957) (describing the “no set of facts” test). The Supreme Court recently
settled the dispute by applying the Twombly standard—that a complaint must
state a claim that is “plausible on its face”—to all civil cases. Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949–50, 1953 (2009); see also Twombly, 550 U.S. at 570. “This
standard ‘simply calls for enough fact to raise a reasonable expectation that

                                         5
                                  No. 08-30388

discovery will reveal evidence of’ the necessary claims or elements.” In re So.
Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550
U.S. at 556).
                              III. DISCUSSION
      We must decide, under Schultea’s heightened pleading standard, if
Morgan has pleaded sufficient facts to state a claim against Hubert. In doing so,
we must examine the contours of qualified immunity, the governing standards
of which are clear:
      First, a court must decide whether a plaintiff’s allegation, if true,
      establishes a violation of a clearly established right. Without an
      established right, qualified immunity is granted. Second, if the
      plaintiff has alleged a violation, the court must decide whether the
      conduct was objectively reasonable in light of clearly established law
      at the time of the incident.

Alexander v. Eeds, 392 F.3d 138, 144 (5th Cir. 2004) (internal quotation marks
and citation omitted).
      The relevant constitutional right at issue is the Eighth Amendment’s
guaranty of protection from inmate violence. “A prison official’s ‘deliberate
indifference’ to a substantial risk of serious harm to an inmate violates the
Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). “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). A plaintiff can prove an Eighth Amendment violation
by showing the following two elements: “First, the deprivation alleged must be,
objectively, sufficiently serious . . . . [T]he inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm.”
Farmer, 511 U.S. at 834 (internal quotation marks and citations omitted).
Second, the plaintiff must prove that the prison official acted with deliberate
indifference to that risk: “[A] prison official cannot be found liable under the


                                        6
                                      No. 08-30388

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; 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.
       Federal courts now have the discretion to sidestep the preliminary
inquiry—whether plaintiff has sufficiently              alleged    the   violation    of a
constitutional right—and proceed directly to consider the right’s clarity. Pearson
v. Callahan, 129 S. Ct. 808 (2009) (overruling Saucier v. Katz, 533 U.S. 194
(2001)). In the context of the Eighth Amendment issue presented here, the order
is of less importance because the obligation of prison officials to protect prisoners
from violence at the hand of other inmates is clear.1 See Farmer, 511 U.S. at
828; Longoria, 473 F.3d at 592. Thus, we will proceed directly to consider
whether Morgan has alleged a substantial risk of serious harm of which Hubert
was deliberately indifferent. If he has, then he has alleged the violation of a
clear constitutional right.
       A.     Substantial Risk of Serious Harm
       The Eighth Amendment “requires that inmates be furnished with the
basic human needs, one of which is reasonable safety.” Helling v. McKinney, 509
U.S. 25, 33 (1993) (quotation marks omitted). In other words, “an official’s act
or omission must have resulted in the denial of the minimal civilized measure
of life’s necessities.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577,
589 (5th Cir. 2004) (quotation marks omitted). In Farmer, the Supreme Court
described the right of inmates to protection from assault by their fellow


       1
         A right is clear if a reasonable officer would know that his conduct violates that
right. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). “This is not to say that an official
action is protected by qualified immunity unless the very action in question has previously
been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness
must be apparent.” Id. (citation omitted).

                                             7
                                   No. 08-30388

prisoners in clear language: “Having incarcerated persons [with] demonstrated
proclivit[ies] for antisocial, criminal, and often violent, conduct, 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.” 511 U.S. at 833 (alterations in original) (internal quotation
marks and citations omitted). The Court continues: “Prison conditions may be
restrictive and even harsh, but gratuitously allowing the beating or rape of one
prisoner by another serves no legitimate penological objectiv[e], any more than
it squares with evolving standards of decency. Being violently assaulted in
prison is simply not part of the penalty that criminal offenders pay for their
offenses against society.”    Id. (alteration in original and quotation marks
omitted).   There is little question that being stabbed and beaten by other
inmates is serious harm. The closer question is whether placing Morgan in a
field with the general prison population raised a substantial risk of that harm.
      Although “[c]lassification of prisoners is a matter left to the discretion of
prison officials,” McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990), once a
prisoner has been placed in protective custody, for whatever reason, reasonable
prison officials would recognize that commingling such inmates with the general
prison population presents a substantial risk of violence. The primary purpose
of placing inmates in protective custody is, as the name suggests, to protect them
from prison violence. Hubert argues that Morgan has not alleged why he was
in protective custody or that he told the EHCC guards the underlying reasons,
but that is beside the point. While that information would be useful, it is not
necessary to establish the presence of a substantial risk of harm. See Farmer,
511 U.S. at 843. We are of the opinion that placing Morgan, a prisoner in
protective custody at the time, on the field with the general prison population
created an objective and substantial risk to his safety.



                                         8
                                  No. 08-30388

      B.    Deliberate Indifference
      We move next to the subjective element of an Eighth Amendment claim,
deliberate indifference. As noted, deliberate indifference requires the defendant
both to know the facts from which he could reasonably conclude that an
excessive risk of serious harm is present, and to make that inference; that is, he
must subjectively decide to disregard the risk. See Farmer, 511 U.S. at 837. The
question of what Hubert subjectively knew is a question of fact. See id. at 842
(“Whether a prison official had the requisite knowledge of a substantial risk is
a question of fact subject to demonstration in the usual ways, . . . and a
factfinder may conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.”). Hence, we lack jurisdiction to consider it
on the merits. See Longoria, 473 F.3d at 595 (“Whether a prison official had
knowledge of a substantial risk to inmate safety is a question of fact over which
this court lacks jurisdiction.”). As such, the only issue here is whether Morgan
alleged sufficient facts to state a plausible case against Hubert individually,
including the requisite subjective knowledge.
      In his amended complaint and reply, Morgan alleges the following facts
regarding Hubert’s personal actions: (1) that Hubert created policies that placed
Morgan in substantial risk of harm; (2) that he failed adequately to house, feed,
and provide medical care for inmates evacuated from OPP, and particularly
failed to provide protection to inmates in protective custody and to provide
medical care to those assaulted; (3) that Hubert knew or should have known that
transfers from OPP would include prisoners in protective custody; (4) that
Hubert knew or should have known of the need to segregate these prisoners; (5)
that Hubert failed to follow the policies he had in place for the segregation and
protection of prisoners, and that he failed to ensure that his staff followed the
policies; (6) in the alternative that Hubert failed to enact any policies and was
thus deliberately indifferent to Morgan’s rights; and (7) that Hubert had a

                                        9
                                  No. 08-30388

personal duty to create and implement these policies or to oversee those who
created and implemented the policies.
      The difficulty with these allegations is that they fail to state specifically
such important facts as when Hubert knew of the transfers and what his policies
were regarding them, including the handling of prisoners in protective custody.
See Schultea, 47 F.3d at 1434 (requiring the plaintiff to support a “claim with
sufficient precision and factual specificity to raise a genuine issue as to the
illegality of defendant’s conduct at the time of the alleged acts” (emphasis
added)). The time line from Hubert’s planning for the hurricane to Morgan’s
arrival at EHCC is crucial to the deliberate indifference analysis, directly
bearing on Hubert’s knowledge of the events. The failure of specificity is no fault
of Morgan’s, however, because he has not yet had the benefit of discovery, and
is bound by Rule 11 to allege only those facts for which he has or will likely have
evidentiary support. As we said in Schultea, we do not require a plaintiff to
plead facts “peculiarly within the knowledge of defendants,” id. at 1432, and the
facts omitted fall squarely within that category.
      We are mindful that the protection afforded by qualified immunity applies
to the lawsuit itself, and not merely to liability, and thus the issue should be
resolved as early as possible. See Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.
1994). Thus, we are reluctant to allow the case to proceed to full discovery with
important questions regarding qualified immunity left unanswered. Schultea
points the way forward. We noted there the district court’s ability to tailor
discovery to the defense of qualified immunity: “The district court may . . . limit
any necessary discovery to the defense of qualified immunity.” 47 F.3d at 1434.
Such a course is called for here. Because key facts are unknown, and because
these facts are solely within Hubert’s possession, we do not consider the parties’
remaining arguments regarding deliberate indifference. Instead, we vacate the
district court’s denial of qualified immunity and remand for discovery limited to

                                        10
                                    No. 08-30388

that issue. We instruct the district court to carry the issue of qualified immunity
and decide it anew once that discovery is complete.
      Additional facts establishing the time line are particularly important when
evaluating the second prong of the qualified immunity test—the reasonableness
of Hubert’s actions in light of the clearly established constitutional right. While
the fact of Hurricane Katrina is unquestionably relevant to this inquiry, so too
are the facts noting when Hubert learned of impending transfers and what steps
he took to prepare for them. Several days of notice versus hours or even minutes
of notice greatly changes the reasonableness calculus.                  Under such
circumstances, remand for limited discovery is appropriate.
                                  CONCLUSION
      We express no opinion on the ultimate success of Morgan’s lawsuit. At
this stage in the litigation, crucial facts necessary to resolve the issue of qualified
immunity are unknown. Therefore, consistent with Schultea, we VACATE the
district court’s denial of qualified immunity and REMAND for discovery limited
to that issue.




                                          11
