     Case: 18-31200       Document: 00515068872         Page: 1    Date Filed: 08/08/2019




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

                                      No. 18-31200                          FILED
                                                                       August 8, 2019
                                                                       Lyle W. Cayce
TYWASKI KING,                                                               Clerk

               Plaintiff – Appellee,

v.

JAMES M. LEBLANC, individually and in his official capacity; JERRY
GOODWIN, individually and in his official capacity; JOHN HUEY,
individually and in his official capacity; GARY CARTER, individually and in
his official capacity,

               Defendants – Appellants.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:16-CV-1745


Before ELROD, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Tywaski King, an inmate, sued two correctional officers for their failure
to protect him from another inmate after the officers left King handcuffed in
the cell and allegedly ignored his need for protection. The district court denied
the officers’ assertion of qualified immunity and denied summary judgment,


       * 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should not be published and is not precedent except under the limited circumstances set forth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.
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                                       No. 18-31200
holding that whether the officers knew that King was restrained and needed
protection was a genuinely disputed issue of material fact. In this interlocutory
appeal, the officers appeal the denial of qualified immunity. Because the
officers only challenge the genuineness of the fact dispute at issue, we
DISMISS the appeal for lack of jurisdiction.
                                               I.
       King is an inmate at David Wade Correctional Center in Homer,
Louisiana. 1 King was placed on suicide watch and, as a result, “stripped of all
implements that might assist suicide, including clothing.” It is undisputed
that King was left in his cell restrained with handcuffs. Another inmate, Willie
Rose who was a known violent offender, was assigned to King’s cell. Rose
physically attacked King who was unable to defend himself because of the
restraints.
       King alleges that Captain John Huey “had personal knowledge of Rose’s
intent to attack [King]” and “placed [Rose] in the cell for that purpose.” Huey
submitted an affidavit stating that he did not know that King was still
handcuffed after leaving Rose in the cell with him and that the handcuffs were
left on King inadvertently. King, however, testified in deposition that he called
out to Huey asking him to take the handcuffs off him. King similarly alleges
that Lieutenant Gary Carter, who was responsible for checking on the inmates
in their cells, ignored the substantial risk of violence that King faced, failed to
monitor King’s cell, and failed to intervene properly. Carter denied that he
knew of King’s handcuffs, but King testified in deposition that Carter was close
in proximity to Huey when King called out to Huey about the handcuffs.



       1 We recite the facts as how the district court recited them. At this procedural posture,
“we have jurisdiction only to decide whether the district court erred in concluding as a matter
of law that officials are not entitled to qualified immunity on a given set of facts.” Kinney v.
Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).
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                                       No. 18-31200
       King commenced a 42 U.S.C. § 1983 lawsuit against Huey and Carter,
alleging Eighth Amendment violations. 2 The officers moved for summary
judgment, asserting qualified immunity. The district court denied summary
judgment, holding that “there [were] genuine disputes of material fact” as to
King’s failure-to-protect claim under the Eighth Amendment. The district
court observed that “[i]t [was] undisputed that King was left in the cell
handcuffed and stripped of clothing while Rose was unrestrained.” The district
court determined that “[t]he factual issue preventing summary judgment [was]
whether [the officers] knew, and/or at what point they knew,” that King was
left in the cell restrained with a known violent offender. The district court also
concluded that there was a genuine dispute of material fact “as to whether [the
officers] heard King calling out about the handcuffs and chose to ignore King,
leaving him in the same cell as a known violent offender.”
       The district court further concluded that it was clearly established before
2016 that correctional officers should not leave inmates restrained alone in the
same cell with another inmate who is unrestrained and has a reputation for
violence. See, e.g., Farmer v. Brennan, 511 U.S. 825, 828 (1994) (holding that
a prison official’s “deliberate indifference” to a substantial risk of harm to an
inmate gives rise to a failure-to-protect claim); Williams v. Hampton, 797 F.3d
276, 280 (5th Cir. 2015) (en banc) (same); Stokes v. Delcambre, 710 F.2d 1120,
1124 (5th Cir. 1983) (holding that “failure to control or separate prisoner who




       2 King had also named as defendants Jerry Goodwin, the warden, and James LeBlanc,
the Secretary of the Louisiana Department of Public Safety and Corrections, alleging that
their policies, practices, and customs led to his injuries. The district court granted summary
judgment in favor of Goodwin and LeBlanc, holding that “there was no direct causal link
between [the relevant] policies and the alleged violation of King’s constitutional rights.” King
has not appealed the summary judgment in Goodwin and LeBlanc’s favor.

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                                  No. 18-31200
endanger the physical safety of other prisoners can constitute cruel and
unusual punishment”).
                                        II.
      “Whenever the district court denies an official’s motion for summary
judgment predicated upon qualified immunity, the district court can be
thought of as making two distinct determinations, even if only implicitly.”
Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). “First, the
district court decides that a certain course of conduct would, as a matter of law,
be objectively unreasonable in light of clearly established law.” Id. “Second,
the court decides that a genuine issue of fact exists regarding whether the
defendant(s) did, in fact, engage in such conduct.” Id. “[W]e lack jurisdiction
to review conclusions of the second type on interlocutory appeal”: “Stated
differently, in an interlocutory appeal[,] we cannot challenge the district court’s
assessments regarding the 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. at 346–47. We have made it clear time and time
again that “we lack jurisdiction to resolve the ‘genuineness of any factual
disputes’”; we may only review whether the factual disputes are material.
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kovacic v. Villarreal,
628 F.3d 209, 211 n.1 (5th Cir. 2010)). Thus, we must dismiss an interlocutory
appeal for lack of jurisdiction if the officials challenge the genuineness, and not
the materiality, of the fact dispute. Kinney, 367 F.3d at 347.
      The officers do not challenge any part of the district court’s legal analysis
but, instead, focus on the district court’s determination that there was a fact
issue as to whether the two officers were deliberately indifferent. The disputed
facts concern whether the officers knew of King’s restraint and that he needed
protection from Rose, and these disputed facts are material to the qualified
immunity analysis: If the officers did not know, then King’s failure-to-protect
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                                  No. 18-31200
claim fails. The officers’ brief challenges the genuineness of the fact dispute
by arguing that certain facts are undisputed. The officers argue: (1) that the
record establishes that King did not inform the officers that he was still
handcuffed before they left his cell; (2) that King at no time expressed his need
for protection from Rose; and (3) that they made rounds around the cells and
intervened promptly once they saw the altercation between Rose and King.
Blue Br. at 26 (arguing that King “did not inform [the officers] that he was still
handcuffed before they left”); id. at 27 (asserting that King failed to inform the
officers that he needed protection). However, the district court determined
that there was contrary evidence in the record on each of these points. We lack
jurisdiction to review the genuineness of the material-fact dispute in an
interlocutory appeal such as this one. Kinney, 367 F.3d at 347.
      We DISMISS the officers’ interlocutory appeal for lack of jurisdiction.
Because we dismiss the appeal for lack of jurisdiction, we express no views on
the merits.




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