                        REVISED OCTOBER 27, 2008

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

                                                                            FILED
                                       No. 06-41648                        June 27, 2008

                                                                     Charles R. Fulbruge III
                                                                             Clerk
GREGORY MOORE

                                                  Plaintiff–Appellee
v.

CHARLES D LIGHTFOOT, Major of Correctional Officers–Beto One Unit
Classification; J P GUYTON, State Classification Committee

                                                  Defendants–Appellants



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 6:03-CV-82


Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       On January 8, 2002, Appellee Gregory Moore, an inmate currently
incarcerated by the Texas Department of Criminal Justice, Correctional
Institutional Division (“TDCJ-CID”), was assaulted by Clifton Holiday, another
inmate at TDCJ-CID. On February 23, 2003, Moore brought a § 1983 action
against various prison officials, including Appellants Charles Lightfoot and J.P.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                        No. 06-41648

Guyton. Lightfoot and Guyton each moved for summary judgment on the basis
of qualified immunity, which the district court denied on October 11, 2006.
Appellants filed this interlocutory appeal.               For the following reasons, we
REVERSE the district court’s denial of qualified immunity to Lightfoot and
Guyton, and we REMAND with direction that the district court enter its order
dismissing Moore’s § 1983 claims.
                                                I.
       Moore, a twice-convicted child molester, is currently an inmate
incarcerated by TDCJ-CID. On May 27, 2002, an unknown TDCJ-CID guard
posted a message on an unofficial TDCJ-CID internet bulletin board urging
reprisals against sex offenders. In September, certain officers distributed a list
of sex offenders to inmates in the Beto I Unit, where Moore was then housed.
On October 2, there were several assaults against inmates in the Beto Unit who
were either sex offenders or had been labeled “snitches.” Consequently, TDCJ-
CID instituted a lockdown of Beto Unit.1
       Shortly after lockdown commenced, Moore began receiving threats from
other inmates and thereupon submitted his first life endangerment claim.2
Specifically, Moore complained that “inmate Richard Tidwell had instituted a


       1
           Moore’s wing of Beto Unit was under lockdown from October 2 to November 4, 2002.
       2
          TDCJ-CID has a procedure to investigate and evaluate life endangerment claims. The
complaint is first logged with the unit classification office in the offender protection log. The
complaint is then assigned to a ranking officer to conduct an investigation, which, when
completed, is returned to the unit classification office. The unit classification office then sets
the claim for a hearing before the next available Unit Classification Committee (“UCC”).
        A UCC consists of three voting members, who review and make recommendations
regarding an inmate’s custodial classification while at the unit. A recommendation to change
an inmate’s classification requires a majority vote. The UCC may recommend a housing
change, placement in safekeeping, placement in protective custody, or a unit transfer. The
State Classification Committee (“SCC”) has to approve the UCC’s recommendations regarding
safekeeping, protective custody, and unit transfers. Even in the face of an SCC denial, prison
officials with the rank of Major, such as Lightfoot, have the power to assign inmates to
transient housing or move them to safer parts of the unit.


                                                2
                                      No. 06-41648

plan to eliminate all sex offenders on the Beto Unit and that inmates Tidwell,
[Benton] Morgan, and Clifton Holiday were among the group involved.” Moore
v. Cockrell, No. 6:03-CV-82, slip op. at 3 (E.D. Tex. Oct. 11, 2006). Moore also
complained that he overheard inmates Holiday and Morgan saying that Moore
was on their “hit list.” Moore was thereupon moved to another wing of Beto Unit
and placed in transient housing.3
       On October 11, Moore informed Captain Smith that he was in danger
because he was a sex offender and had been labeled a “snitch.” When he
returned from his interview with Captain Smith, he overheard inmates Morgan
and Robert Leifester say that because Moore had snitched, they were going to
“take care of him.”
       On October 12, an investigation of Moore’s life endangerment claim was
opened. On October 16, the Unit Classification Committee (“UCC”), which
included Lightfoot as chairman, reviewed the investigation, voted to put Moore
in transient housing, and recommended a unit transfer.
       Also on October 16, Morgan and Leifester made additional death threats
to Moore. Furthermore, Tidwell told Moore that Lightfoot had said that: “Moore
and others had snitched on [Tidwell]” and that “Moore had said [to prison
officials] that Tidwell and other inmates were part of a group trying to rid the
Beto Unit of sex offenders.” Moore, No. 6:03-CV-82, slip op. at 4.
       The UCC forwarded the unit transfer request to the State Classification
Committee (“SCC”). Guyton, an SCC member, reviewed the request, which he
denied on October 24. Although Guyton received credible information from the
UCC that Moore was in danger, including the names of the inmates posing a
threat to him, Guyton concluded that Moore’s claims were uncorroborated. On


       3
        Prisoners assigned to transient housing are placed in a secured building-wing away
from general population. Additionally, such prisoners are single celled and are escorted by a
prison guard when out of their cell.

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October 25, however, Guyton decided to transfer Tidwell off Beto Unit, which
occurred on October 29. Guyton did not transfer Morgan or Holiday off the unit.
       After receiving Guyton’s denial, on October 28, a UCC chaired by Lightfoot
informed Moore that his request for a transfer had been denied and voted to
release him into general population beginning on November 5.
       On November 5, Moore refused to return to general population, despite the
order to do so. He informed Lightfoot of the additional threats he had received
after the October 16 hearing, none of which were considered by the SCC.
Lightfoot told Moore to “get with one of his ranking officers” and resubmit his
life endangerment complaint. Moore’s refusal to return to general population
resulted in a disciplinary action against him, but a life endangerment
investigation was ordered the next day. Consequently, Moore remained in
transient housing. On November 13, a different UCC, composed of three
non-defendants, denied Moore’s life endangerment claim and ordered Moore to
be released to general population.
       Undeterred, Moore thereafter immediately filed a grievance asking that
he be transferred, which prison officials treated as a third life endangerment
claim. On November 14, another UCC, also composed of non-defendants,
recommended that Moore be transferred. According to Moore, Guyton received
this recommendation from the UCC. On December 2, the SCC transferred
inmates Tidwell, Dustin Dixon, Leifester, Morgan, and Wheeler off the Beto Unit
for harassing and retaliating against sex offenders at the unit.4                    Holiday,
however, was not transferred. Thereafter, the SCC denied the recommended
transfer request for Moore “because the alleged enemies had been reassigned.”
Moore, No. 6:03-CV-82, slip op. at 6.


       4
        The district court states that Tidwell was transferred off Beto Unit at this time.
Moore, No. 6:03-CV-82, slip op. at 6. However, it appears that the district court later credited
Guyton’s assertion that Tidwell was transferred off Beto Unit on October 29. Id. at 24-25.

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                                  No. 06-41648

        On December 23, a UCC chaired by Lightfoot informed Moore that the
SCC had once again denied his transfer request and voted to return him to
general population. Moore then requested that he at least be placed on the
south end of the unit, where sex offenders were not receiving the same types of
threats, but Lightfoot refused.
        Prison officials placed Moore back in general population that same day,
and he immediately began to receive death threats, which he reported to prison
officials. Specifically, Moore alleges that he saw Holiday at the dining hall, who
said, “Yeah, Moore, we’re going to get you.”       On January 2, 2003, Moore
submitted a grievance, and a fourth life endangerment investigation was
subsequently opened. On January 8, Moore met with two prison officials, who
told Moore that they could place him in transient housing but that the UCC
would deny a unit transfer and return him to general population. Moore alleges
that, as a result of the conversation, “he felt threatened and coerced into waiving
his life endangerment claim.”         Moore, No. 6:03-CV-82, slip op. at 8.
Consequently, Moore signed a waiver of his claim and request for a unit transfer.
This fourth life endangerment claim was never submitted to the UCC.
        That evening, on January 8, Moore was assaulted by Holiday, sustaining
physical injury. After the fight, Moore was placed in transient housing and
another life endangerment investigation was opened. The UCC hearing the
investigation recommended–and the SCC approved–Moore’s transfer from Beto
Unit.
        On February 23, 2003, Moore brought this § 1983 suit against numerous
prison officials for failing to protect him in violation of his Eighth Amendment
rights. Since Moore filed his First Amended Complaint, all the defendants other
than Lightfoot and Guyton have been dismissed. On April 5, 2004, and May 11,
2006, Lightfoot and Guyton, respectively, moved for summary judgment on the
basis of qualified immunity. On October 11, 2006, the district court denied in


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                                  No. 06-41648

part their motions for summary judgment, concluding that they were not
entitled to qualified immunity. Lightfoot and Guyton now appeal.
                                       II.
      Because this is an interlocutory appeal from a denial of summary
judgment on the basis of qualified immunity, our jurisdiction is “significantly
limited” and “extends to such appeals only ‘to the extent that [the denial of
summary judgment] turns on an issue of law.’” Kinney v. Weaver, 367 F.3d 337,
346 (5th Cir. 2004) (en banc) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530
(1985)) (alteration in original). We may, therefore, consider “the purely legal
question whether the defendants are entitled to qualified immunity on the facts
that the district court found sufficiently supported in the summary judgment
record.” Kinney, 367 F.3d at 347. We do not, however, have jurisdiction to
“challenge the district court’s assessments regarding the [factual] sufficiency of
the evidence–that is, the question whether there is enough evidence in the
record for a jury to conclude that certain facts are true.” Id.
                                       III.
      Determining whether an official is entitled to qualified immunity is a
two-step process. See Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir.
2001). First, we must determine “whether the plaintiff has alleged the violation
of a clearly established federal constitutional (or federal statutory) right.” Id.
If so, the second step requires us to “assess whether the defendant’s conduct was
objectively reasonable in light of clearly established law.” Id. “The touchstone
of this inquiry is whether a reasonable person would have believed that his
conduct conformed to the constitutional standard in light of the information
available to him and the clearly established law.” Goodson v. City of Corpus
Christi, 202 F.3d 730, 736 (5th Cir. 2000).




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                                  No. 06-41648

                                        IV.
      It is well settled that the Eighth Amendment’s proscription against cruel
and unusual punishment requires prison officials to protect inmates from violent
attacks by other inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To
succeed on an Eighth Amendment failure-to-protect claim, “the inmate must
show that he is incarcerated under conditions posing a substantial risk of serious
harm” and that the prison official acted with “deliberate indifference” to the
inmate’s health or safety. Id. at 834. A prison official is deliberately indifferent
if he “knows of and disregards an excessive risk to inmate health or safety”–that
is, “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. A prison official, however, may avoid liability if he
“responded reasonably to the risk, even if the harm ultimately was not averted.”
Id. at 844.
                                        V.
A. Appellant Guyton
      Moore alleges that Guyton violated his clearly established Eighth
Amendment rights by twice disregarding UCC recommendations to transfer him
off Beto Unit and directing him to be placed back into general population with
his would-be attacker. Moore asserts, and the district court found sufficient
evidence, that Guyton knew that Moore was in danger, chose to disregard this
information, did not conduct an independent investigation or request more
information from the unit, and simply directed that Moore be placed back into
general population with inmates that continued to represent a threat. Thus,
Moore alleged that Guyton was deliberately indifferent to a substantial risk of
serious harm and thereby alleged a constitutional violation.
      Under the second prong of the qualified immunity test, however, we find
that Guyton’s actions were objectively reasonable in light of clearly established

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                                 No. 06-41648

law. Guyton took measures to protect Moore from danger. In response to
Moore’s first life endangerment claim, Guyton transferred Tidwell off Beto Unit.
Guyton asserts that he took this action rather than transferring Moore because
it was logistically simpler to move Tidwell rather than all the sex offenders
Tidwell was allegedly harassing. Additionally, because Tidwell was the leader
of the gang harassing sex offenders, Guyton hoped that his transfer would
discourage other members of the gang and end the matter. Furthermore,
Guyton denied Moore’s requested transfer a second time only after the SCC had
transferred Dixon, Leifester, Morgan, and Wheeler–who were harassing and
retaliating against sex offenders–off Beto Unit. Although Holiday remained in
general population when Guyton denied Moore’s transfer requests, Guyton’s
actions–although ultimately unsuccessful–“may well have been reasonable
methods of addressing the risk that [Moore] faced.” Johnson v. Johnson, 385
F.3d 503, 526 (5th Cir. 2004) (stating that actions such as “ordering further
investigation or separating Johnson from a particular inmate who had been
threatening him” may have been reasonable responses to Johnson’s complaints
of rape and torture by prison gangs); see also Hare v. City of Corinth, 135 F.3d
320, 328-29 (5th Cir. 1998) (finding that the defendant prison official was
entitled to qualified immunity on a deliberate indifference claim because the
protective measures he took–while unsuccessful–were “within the parameters
of objective reasonableness”). Because Guyton’s actions may well have been
reasonable, a reasonable official in Guyton’s position would not have known that
his conduct might be constitutionally infirm. Guyton is, therefore, entitled to
qualified immunity.
B. Appellant Lightfoot
      Moore first asserts that Lightfoot violated his clearly established Eighth
Amendment rights because, as a member of the UCC on October 28, 2002, and
December 23, 2002, Lightfoot voted to return Moore to general population.

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                                       No. 06-41648

Moore asserts, and the district court found, that Lightfoot twice voted to return
Moore to general population despite knowing that Moore faced a serious risk of
substantial harm there. Thus, as with Guyton, Moore has alleged an Eighth
Amendment violation.
       Lightfoot, however, like Guyton, took some measures in response to
Moore’s complaints. On October 16, 2002, in response to Moore’s first life
endangerment claim, Lightfoot, as the UCC chairman, voted to place Moore in
transient housing and recommended that Moore be transferred from Beto Unit.
Although Lightfoot thereafter twice voted to return Moore to general population
where inmate Holiday remained, Lightfoot did so only after the SCC first
decided to transfer Tidwell, who was the supposed gang leader, and then after
four other threatening inmates were transferred from the unit.5 Like Guyton,
such a response may very well have been reasonable, and clearly established law
did not indicate that it was objectively unreasonable. Given that the SCC
decided to separate several threatening inmates from Moore (including the
alleged gang leader) before Lightfoot ultimately forced Moore to return to
general population, a reasonable official in Lightfoot’s position would not have
known that such action could violate Moore’s constitutional rights. Lightfoot is
thus entitled to qualified immunity on this claim.
       Moore also asserts that Lightfoot violated his Eighth Amendment rights
by telling Tidwell that Moore had “snitched” on Tidwell. Moore’s only evidence
of Lightfoot’s statement is contained in Moore’s affidavit, which states that
Tidwell told Moore about Lightfoot’s statements to Tidwell. The district court


       5
          It is unclear from the district court’s findings and the record whether Lightfoot
actually knew that Guyton decided to transfer Tidwell off Beto Unit on October 25. However,
it appears from the district court’s findings and the record that Lightfoot’s December 23 UCC
was aware of the transfers of the four threatening inmates (and Tidwell) off Beto Unit. See
Moore, No. 6:03-CV-82, slip op. at 6, 19. The UCC’s December 23 decision was the operative
decision that ultimately forced Moore back into general population, and this decision was made
with knowledge of all the relevant facts.

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                                      No. 06-41648

found that, if Lightfoot actually did make this statement, “this could be an act
of deliberate indifference to his safety.” Moore, No. 6:03-CV-82, slip op. at 23.
However, even if it is true that Lightfoot made such statements to Tidwell,
Moore cannot make out a constitutional claim against Lightfoot. There is no
allegation or evidence that Tidwell ever told Holiday about Lightfoot’s
statements, and given that Moore was already targeted by Tidwell’s gang and
had been labeled a “snitch,”6 see id. at 2-3, there is nothing in Moore’s allegations
or evidence to indicate that Lightfoot’s statements caused Moore any injury.
Thus, because Moore has failed to state a constitutional violation with respect
to this claim and provide any evidence that Lightfoot’s statements harmed
Moore, Lightfoot is entitled to qualified immunity and summary judgment. See
Umar v. Burkett, 996 F.2d 304, 1993 WL 241481, at *2 (5th Cir. 1993) (finding
that a claim of deliberate indifference did not “rise to the level of a constitutional
violation because . . . [the plaintiff] suffered no injury”).
                                            VI.
       For the foregoing reasons, we REVERSE the district court’s denial of
qualified immunity to Lightfoot and Guyton, and we REMAND with direction
that the district court enter its order dismissing Moore’s § 1983 claims.




       6
        On October 11, 2002, Moore told Captain Smith that he had been labeled as a “snitch,”
and subsequently heard Leifester and Morgan “saying that they were going to ‘take care of
him’ because he had snitched.” Moore, No. 6:03-CV-82, slip op. at 3. Lightfoot, however, did
not hear Moore’s complaints about Tidwell and his gang until five days later on October 16,
2002.

                                             10
