     Case: 12-40418       Document: 00512109056         Page: 1     Date Filed: 01/10/2013




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

                                                                            FILED
                                                                         January 10, 2013
                                     No. 12-40418
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KENNETH R. JOHNSON,

                                                  Plaintiff-Appellant

v.

RICK THALER; HEALTH MANAGER ANGELA SKINNER; OFFICER ADAMS,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 6:10-CV-25


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Kenneth R. Johnson appeals the grant of summary judgment to defendant
John Adams and dismissal of Johnson’s 42 U.S.C. § 1983 complaint. Johnson
also seeks authorization to file a supplemental brief. As staff counsel has
considered the brief, his motion to file a supplemental brief is granted.
       Johnson filed suit against Adams, Rick Thaler, and Angela Skinner after
he was injured when a prison van in which he was riding, driven by Officer
Adams, hit a deer. Following a hearing on the matter, the magistrate judge

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-40418

(MJ), ruling with the consent of the parties, dismissed Johnson’s claims against
Thaler and Skinner for failure to state a claim. Johnson then filed a motion for
summary judgment, and Adams filed a cross motion. In granting Adams’s cross
motion, the MJ determined that Johnson failed to exhaust his administrative
remedies with the Texas Department of Correctional Justice. The MJ further
determined that Adams was entitled to qualified immunity because Johnson
failed to show that the officer knew of and deliberately disregarded an excessive
risk to inmate safety.
      We review the MJ’s grant of summary judgment de novo. See Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009). Whether
or not Johnson’s prison grievances were sufficiently clear to reasonably indicate
the nature of Johnson’s claims and thus exhaust them, see Johnson v. Johnson,
385 F.3d 503, 518 (5th Cir. 2004), Johnson has shown no error in the MJ’s
determination that Adams was entitled to qualified immunity.
      “Qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Lytle
v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (internal quotation
marks and citation omitted). Evaluating qualified immunity is a two-step
process. First, we determine whether the plaintiff has alleged a violation of a
clearly established constitutional or statutory right. See Siegert v. Gilley, 500
U.S. 226, 231-32 (1991). If we find that there was a constitutional violation, we
move to the second step, which involves “determining whether the law was
sufficiently clear that a reasonable officer would have known that his conduct
violated the constitution.” Lytle, 560 F.3d at 410.
      The treatment of prisoners and the conditions of their confinement are
subject to scrutiny under the Eighth Amendment. See Woods v. Edwards, 51
F.3d 577, 581 (5th Cir. 1995). To establish an Eighth Amendment violation
based on the conditions of his confinement, a prisoner must satisfy both an

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                                  No. 12-40418

objective component and a subjective component. Id. “First, he must show that
his confinement resulted in a deprivation that was ‘objectively, sufficiently
serious.’” Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Second, regarding the subjective
component, the Supreme Court has adopted “subjective recklessness as used in
the criminal law,” as the appropriate test for deliberate indifference. Farmer,
511 U.S. at 839-40. To establish deliberate indifference, the prisoner must show
that the prison official knew of and disregarded an excessive risk to inmate
health or safety. Id. at 837. That is, the prisoner must show both that (1) the
official was “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists” and (2) the official actually drew the
inference. Id. “Deliberate indifference is an extremely high standard to meet.”
Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009) (internal quotation marks
and citation omitted).
      The MJ determined that Adams was entitled to qualified immunity
because Johnson failed to show a constitutional violation, specifically, that the
officer knew of and deliberately disregarded an excessive risk to inmate safety.
Johnson argues that the evidence shows that Adams was aware of the risk
because the other officer warned him about the deer. Johnson further contends
that Adams’s own statement that he never swerves to avoid a deer when moving
at a high rate of speed because the vehicle may flip shows that Adams was both
“speeding and intentionally hit the deer.” Further, Johnson contends that the
other officer admitted warning Adams about the deer.              Johnson avers
conclusorily that Adams acted willfully and wantonly.
      At most, Johnson has shown that Adams should have been aware of a
substantial risk, but not that he was, in fact, subjectively aware. At the hearing,
Johnson alleged that the officer was speeding, driving recklessly, and “possibly
sleeping.” The allegations failed to show that Adams knew of and intentionally
disregarded a substantial risk to Johnson’s safety in the accident involving the

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                                No. 12-40418

deer.   See Farmer, 511 U.S. at 837.     Johnson’s conclusory assertions are
insufficient to show an Eighth Amendment violation. See Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010). In the absence of a constitutional
violation, qualified immunity protects Adams from liability. See Siegert, 500
U.S. at 231-32. Johnson has failed to show that the district court erred in
granting summary judgment to Adams.         The MJ’s judgment is therefore
AFFIRMED.




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