     Case: 18-30224      Document: 00514870593         Page: 1    Date Filed: 03/13/2019




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

                                    No. 18-30224                              FILED
                                  Summary Calendar                      March 13, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
TONY JOHNSON,

                                                 Plaintiff-Appellee

v.

JOSEPH LEMARTINIERE, Assistant Warden; BURL CAIN, WARDEN,
LOUISIANA STATE PENITENTIARY; LESLIE DUPONT, Deputy Warden of
Security of Louisiana State Penitentiary at Angola,

                                                 Defendants-Appellants


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:15-CV-38


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Former Louisiana prisoner Tony Johnson alleges that defendant
wardens violated their constitutional duty to protect him from sexual assault
by Tyler Holliday, a former guard at the Louisiana State Penitentiary (LSP).
The wardens appeal the district court’s denial of their motion for summary
judgment based on qualified immunity. They challenge the court’s factual


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30224

findings that they knew Holliday posed a risk of serious harm and that they
were deliberately indifferent in responding to that risk. Alternatively, they
argue that their decision to transfer Johnson to another prison was objectively
reasonable and therefore entitled to qualified immunity.
      This court has jurisdiction to review the denial of summary judgment on
qualified immunity grounds “to the extent that it turns on an issue of law.”
Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006) (internal quotation and
citation omitted). “Where, as here, the district court finds that genuinely
disputed, material fact issues preclude a qualified immunity determination,
this court can review only their materiality, not their genuineness.” Manis v.
Lawson, 585 F.3d 839, 842 (5th Cir. 2009).
      Prison officials “are entitled to qualified immunity unless their conduct
was not only illegal but also violated clearly established law such that their
behavior was objectively unreasonable.” Johnson v. Johnson, 385 F.3d 503,
524 (5th Cir. 2004). We first consider whether the plaintiff has shown the
violation of a federal right, Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004)
(en banc), and then if the right “was ‘clearly established’ at the time of the
violation,” such that the official “was on notice of the unlawfulness of his or her
conduct,” Cole v. Carson, 905 F.3d 334, 341 (5th Cir. 2018).
      In the first step, an inmate must show “‘he is incarcerated under
conditions posing a substantial risk of serious harm,’” and prison officials were
“deliberately indifferent” to his safety. Johnson, 385 F.3d at 524 (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)).         An official is deliberately
indifferent when he “knows of and disregards an excessive risk” to inmate
safety. Farmer, 511 U.S. at 837. In the second step, assuming it is clearly
established that prison officials have a duty to protect inmates from sexual
abuse, see Johnson, 385 F.3d at 526 (citing Farmer, 511 U.S. at 832), the



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                                  No. 18-30224

inmate must show that “all reasonable officials in the defendant’s
circumstances would have then known that the defendant’s conduct violated
the United States Constitution.” Thompson v. Upshur Cty., 245 F.3d 447, 457
(5th Cir. 2001).
      We lack jurisdiction to review the district court’s factual findings that
the wardens drew the inference that Johnson was at risk of serious harm from
Holliday and that their decision to wait five days before transferring Johnson
was deliberately indifferent to his safety. Accepting Johnson’s version of the
facts as true, however, we have jurisdiction to review the “legal significance of
the conduct that the district court deemed sufficiently supported for purposes
of summary judgment.” Gobert, 463 F.3d at 345.
      Johnson’s version of the facts supports a finding that the wardens acted
with deliberate indifference when they inferred he was Holliday’s victim, chose
to transfer him, but disregarded the immediate risk by failing to protect him
for the five days before the transfer was completed. Further, all reasonable
officials would have known it was unreasonable to leave Johnson unprotected
for that period, while he was at risk of sexual abuse by a prison employee. See
Johnson, 385 F.3d at 527 (holding that Farmer has made it “abundantly clear”
that prison officials cannot leave an inmate to fight off his attackers or submit
as a victim of sexual assault).
      Accordingly, to the extent the wardens challenge the district court’s legal
conclusions, the denial of the wardens’ motion is AFFIRMED. To the extent
the wardens challenge the district court’s assessment that genuine issues of
fact preclude the grant of summary judgment, the appeal is DISMISSED.




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