                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                                                                      June 3, 2004
          UNITED STATES COURT OF APPEALS
                   FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk
                         ____________

                         No. 03-41088
                         ____________


JOSHUA RIOS; MARY CANALES,


                             Plaintiffs-Appellants,

versus


DOYLE WAYNE SCOTT, Etc; ET AL;


                             Defendants.

DOYLE WAYNE SCOTT, Individually and In His Official Capacity
as Executive Director of the Texas Department of Criminal Justice;
GARY JOHNSON, Individually and In His Official Capacity as
Executive Director of the Texas Department of Criminal Justice;
JANE CATHERINE COCKRELL, Individually and In Her Official
Capacity as Director of the Texas Department of Criminal Justice;
LESLIE WOODS, Individually and In His Official Capacity as Region
II Director of the Texas Department of Criminal Justice; ROY A
GARCIA, Individually and In His Official Capacity as Senior Warden
of the Coffield Unit of The Institutional Division of the Texas
Department of Criminal Justice; PATTI SIPPEL

                             Defendants-Appellees



           Appeal from the United States District Court
                For the Eastern District of Texas
                    USDC No. 6:02-CV-413
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

        Joshua Rio s and Mary Canales (“the Relatives”) appeal from the district court’s grant of

summary judgment based on qualified immunity. They filed suit under 28 U.S.C. § 1983 and state

law against the defendants, Patti Sippel, a correctional officer at the prison where their relative

Rolando Rios (“Rios”) was incarcerated, and several supervisory officials.        The Relatives alleged

that Sippel and the supervisory officials violated Rios’s Fourth, Fifth, Eighth, and Fourteenth

amendment rights when they failed to protect Rios from lethal attack by a fellow prisoner. The

district court adopted the findings and conclusions of the magistrate judge and granted the

defendants’ summary judgment motion as to the federal claims, finding that the defendants were

entitled to qualified immunity. We agree and affirm the district court decision.

        Rios was stabbed to death by fellow inmate Antonio Lara while they were confined in

administrative segregation. Rios, a confirmed gang member, was handcuffed and being escorted back

to his cell after a shower by Officer Patti Sippel. Lara, a suspected gang member at the time of the

attack, broke out of his cell and stabbed Rios with a weapon. Officer Sippel, armed only with a

baton, ran to get help. Rios died as a result of his stabbing wounds.

        We review the district court’s grant of a summary judgment motion de novo. See Flock v.

Scripto-Tokai Corp., 319 F.3d 231, 236 (5th Cir. 2003). A summary judgment motion is properly

granted when, viewing the evidence in the light most favorable to the nonmovant, the record indicates

that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment


        *
               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.

                                                  -2-
as a matter of law." FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When

a defendant government official whose position involves the exercise of discretion moves for

summary judgment based on qualified immunity, “it is the plaintiff’s burden to demonstrate that all

reasonable officers similarly situated would have then known that the alleged acts of the defendants

violated the United States Constitution.” Thompson v. Upshur County, TX, 245 F.3d 447, 459-60

(5th Cir. 2001).

       Officer Sippel is entitled to qualified immunity because there is no clearly established

constitutional right for an officer to immediately intervene when an armed inmate attacks another

inmate, as the officer may need to call for backup or seek to avoid her own serious injury. See e.g.

Patmon v. Parker, 3 Fed. Appx. 337 (6th Cir. 2001); Winfield v. Bass, 106 F.3d 525 (4th Cir. 1997);

Prosser v. Ross, 70 F.3d 1005 (8th Cir. 1995); Payne v. Collins, 986 F.Supp. 1036 (E.D. Tex. June

25, 1997). Accordingly, the Relatives could not meet their burden to demonstrate that all reasonable

officers similarly situated would have then known that the failure to intervene violated the

Constitution. The district court correctly granted summary judgment in favor of Officer Sippel.

       The supervisory officials are also entitled to qualified immunity because the Relatives have

not shown that reasonable officials would know that the supervisory officials’ conduct violated the

Constitution. A prison official violates the Eighth Amendment only when that official is deliberately

indifferent to the safety needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Here,

there was no evidence that the supervisory officials were deliberately indifferent to inadequate

staffing, cell searches, training or potential gang conflict. Accordingly the district court’s grant of

summary judgment in favor of the defendants is AFFIRMED.




                                                 -3-
