     Case: 12-30689      Document: 00512705539         Page: 1    Date Filed: 07/21/2014




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

                                                                                  FILED
                                      No. 12-30689                            July 21, 2014
                                                                             Lyle W. Cayce
CLARENCE SCHREANE,                                                                Clerk


                                                 Plaintiff - Appellant
v.

TAMECHIA BEEMON, also known as Beaumont,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:09-CV-1252


Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Clarence Schreane, proceeding pro se, brought suit pursuant to Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971), against Tamechia Beemon, a corrections officer at the federal
penitentiary in which Schreane was incarcerated, asserting that Beemon
violated his Eighth Amendment rights.                  Schreane raises two Eighth
Amendment failure-to-protect claims.            First, he alleges that Beemon was
deliberately indifferent to a substantial risk of serious harm when she violated


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-30689
a prison policy against allowing inmates to enter units to which they were not
assigned. Second, he raises a “snitch” claim, alleging that Beemon labeled him
a “snitch” to other inmates and thus exposed him to a substantial risk of
serious harm. The district court granted summary judgment on qualified
immunity grounds in favor of Beemon.         For the reasons that follow, we
AFFIRM the judgment of the district court.
                              BACKGROUND
                                      I.
      In 2007, Schreane arrived at United States Penitentiary, Pollock to serve
his criminal sentence. Beemon was a corrections officer who worked at the
prison during Schreane’s incarceration there. In January 2008, the prison’s
warden, Joe Keffer, issued a memorandum for both inmates and staff that
reiterated various prison policies, including policies regarding acceptable
attire for inmates, policies prohibiting certain decorations in cells and, as
relevant here, a policy that inmates were not allowed to be present in units to
which they were not assigned. The memorandum was posted throughout the
prison and served as “a reminder to all inmates of some basic rules and
regulations which must be followed,” citing recent “assaults with weapons” and
destruction of property that had taken place in the prison. Keffer emphasized
in a declaration that he “instructed inmates and staff, both verbally and in
writing, that inmates should not be allowed to enter housing units to which
they are not assigned.”
      On April 22, 2008, Beemon, who had formerly been posted to a different
unit, was assigned to supervise Schreane’s unit. Schreane claims that he
began noticing that Beemon would allow inmates from the unit she used to
guard to enter his unit, in violation of the prison’s policy against allowing
inmates to enter units to which they were not assigned.         Schreane was
concerned that Beemon also “entertained” a specific inmate from the unit she
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used to guard and would enter into long conversations with him rather than
supervise Schreane’s unit attentively. Schreane states that, on April 27 or 28,
he privately informed the manager of his unit, Patrick Townsend, that Beemon
was allowing inmates assigned to other units to visit Schreane’s unit.
According to Schreane, Townsend told him that he would speak to Beemon.
Townsend, for his part, says that he did not recall this initial conversation with
Schreane. Schreane claims that, on or about April 29, he also informed Keffer
about Beemon’s conduct. Schreane explained to Keffer that, several months
prior, two inmates had been stabbed or beaten by inmates assigned to other
units. Keffer says that he did not recall this conversation.
      On May 1, 2008, Schreane says that he spoke to Beemon directly
“regarding her favoritism” in allowing certain prisoners to visit from other
units, explaining that inmates were “becoming irritated by her actions.”
According to Schreane, Beemon responded that she had worked in corrections
for fourteen years and “appreciat[ed] his concern of safe housing.” Beemon
says that she did not recall any conversation with Schreane about inmates
assigned to other units entering the unit.
      As Schreane describes it, later that same evening, Beemon again allowed
an inmate from the unit she used to guard to visit Schreane’s unit. While
Beemon and the inmate were engaged in conversation, a fight erupted in
Schreane’s unit, and Townsend ordered a lockdown. Townsend was in the unit
at the time, and Schreane approached him to once more discuss Beemon’s
conduct.   While in the common area, Schreane says that he “discretely”
informed Townsend of the situation—that Beemon had allowed an inmate from
another unit to enter Schreane’s unit—and he identified the offending inmate
for Townsend. Townsend recalls that Schreane raised the issue with him but
did so “very loudly” and “in close proximity to other inmates.” Townsend states


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that he told Schreane “to quiet down and discuss this complaint with [him] in
a proper setting.”
        Schreane claims that Beemon must have told the inmate assigned to
another unit—the one whom Schreane had identified for Townsend—of
Schreane’s complaints and labeled Schreane a “snitch.” That inmate allegedly
informed some of his friends in Schreane’s unit that Schreane had been
consulting with prison authorities, and, that night, an inmate from Schreane’s
unit confronted Schreane in the activity room about “talking to the police” and
then assaulted him. Prison medical records reflect that, at 8:45 P.M. on May
1, 2008, Schreane suffered from a laceration of the lip “secondary to blunt force
trauma,” seemed disoriented as to time and place, and could not remember the
assault.
        Beemon presents a different version of the events at issue.          She
acknowledges that she was aware of the prison’s policy against allowing
inmates to enter units to which they were not assigned and notes that “inmates
have been known to enter other housing units to which they’re not assigned in
order to steal property, hide from other inmates, or even assault other
inmates.” Beemon states that she “always did her best” to prevent inmates
assigned to other units from entering Schreane’s unit. Beemon maintains that
she never knowingly permitted inmates from other units to enter Schreane’s
unit and that, whenever she noticed inmates from other units, she acted
immediately to remove them. As described, Beemon did not recall Schreane’s
speaking to her about his concerns prior to the assault.        Beemon denies
informing other inmates that Schreane was a “snitch” or knowing that
Schreane was at risk of an assault. She further states that she found Schreane
bleeding on a stairway after his assault and triggered an alarm to signal for
help.


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                                        II.
      Schreane later filed this Bivens action in federal court, naming, as
relevant here, Beemon as a defendant.          The magistrate judge construed
Schreane’s complaint to raise, under the Eighth Amendment, both: (1) a
failure-to-protect claim, in Beemon’s failure to prevent the inmate assault by
allowing inmates assigned to other units to enter Schreane’s unit in violation
of the prison’s policy against this; and (2) a “snitch” claim, in Beemon’s
allegedly labeling Schreane a “snitch,” which he claims resulted in his assault.
      Schreane sought to compel the government to turn over surveillance
video footage from the prison, which Schreane argued would show that while
guarding Schreane’s unit Beemon had willfully violated the policy against
allowing inmates to enter units to which they were not assigned.               The
government turned over footage of the May 1, 2008 assault on Schreane but
provided no further video. As the government and the prison’s electronics
technician explained, the prison’s cameras automatically record over
surveillance video after a period of fifteen to thirty days unless a prison official
identifies specific footage relating to an incident warranting investigation.
Other than the assault, investigators had not sought to preserve any
surveillance footage. Schreane argued that he was entitled to an evidentiary
inference of spoliation because the destruction of the missing footage indicated
that it was harmful to Beemon.         The magistrate judge, however, denied
Schreane’s spoliation claim.
      Beemon moved for summary judgment, raising a qualified immunity
defense. Ultimately, the district court granted Beemon’s motion and dismissed
Schreane’s claims with prejudice. The district court determined that Schreane
had “offered no summary judgment evidence whatsoever” in responding to
Beemon’s declaration denying that she had labeled him a “snitch” or had
deliberately allowed inmates assigned to other units to enter Schreane’s unit
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in disregard of Schreane’s safety. 1 Schreane then filed a timely notice of
appeal.
                              STANDARD OF REVIEW
       We review the district court’s grant of summary judgment de novo and
apply the same standard as the district court. Dameware Dev., L.L.C. v. Am.
Gen. Life Ins. Co., 688 F.3d 203, 206 (5th Cir. 2012). Summary judgment is
appropriate if the movant demonstrates “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).        “[T]he party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact, but need not
negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks omitted).
“We construe all facts and inferences in the light most favorable to the
nonmoving party when reviewing grants of motions for summary judgment.”
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal quotation marks
omitted); see also Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam).




       1 We note that the district court should have considered Schreane’s verified complaint
on summary judgment. Allegations in a verified complaint may serve as summary-judgment
evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). To verify the complaint, a plaintiff
may include “a signed declaration under penalty of perjury that the foregoing is true and
correct.” Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (internal quotation marks
omitted). Specific statements in the complaint, to be available as evidence, must also meet
the requirement, contained in Federal Rule of Civil Procedure 56, that “they be within the
personal knowledge of the affiant, that they otherwise would be admissible into evidence,
and that the affiant be competent to testify.” Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th
Cir. 1998); see FED. R. CIV. P. 56(c)(4).

        In this case, Schreane’s complaint concludes with an executed “Plaintiff’s
Declaration,” which reads: “I declare under penalty of perjury that all of the facts represted
[sic] in this complaint is true, and correct, 28 U.S.C. 1746.” Because this statement
reproduces almost exactly the verification language this court described in Hart, see 343 F.3d
at 765, we conclude that the district court should have considered Schreane’s verified
complaint as summary-judgment evidence.

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                                 No. 12-30689
                                DISCUSSION
                            I. Spoliation Claim
      “Under the spoliation doctrine, a jury may draw an adverse inference
that a party who intentionally destroys important evidence in bad faith did so
because the contents of those documents were unfavorable to that party.”
Whitt v. Stephens Cnty., 529 F.3d 278, 284 (5th Cir. 2008) (internal quotation
marks omitted).      An adverse inference of spoliation can be relevant on
summary judgment. See Byrnie v. Cromwell, Bd. of Educ., 243 F.3d 93, 107
(2d Cir. 2001) (“In borderline cases, an inference of spoliation, in combination
with some (not insubstantial) evidence for the plaintiff's cause of action, can
allow the plaintiff to survive summary judgment.” (internal quotation marks
omitted)).   “The Fifth Circuit permits an adverse inference against the
destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’”
Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005). The
defendant’s adherence to standard operating procedures in destroying the
evidence, however, may counter a contention of bad faith conduct. See Vick v.
Tex. Emp’t Comm’n, 514 F.2d 734, 737 (5th Cir. 1975). We review the district
court’s decision whether to permit an evidentiary inference of spoliation for
abuse of discretion. King v. Ill. Cent. R.R., 337 F.3d 550, 553, 555 (5th Cir.
2003).
      In this case, there is no dispute that the surveillance tape that Schreane
wanted was erased. In response to Schreane’s request for the footage leading
up to the day of his attack, the government produced all that remained: the
few minutes of Schreane’s assault on May 1, 2008. The government also
provided the affidavit of an electronics technician at the prison, Derrick Cox,
who described the prison’s general policy of automatically recording over
surveillance video that has not been marked for investigation within fifteen to
thirty days of its recording. Cf. id. at 556 (noting that defendant’s compliance
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with a federal preservation regulation, after which “the records are destroyed
as a part of routine file maintenance,” “further demonstrat[ed] that [the
defendant] lacked a ‘bad faith’ motive for [the records’] destruction”).
      Schreane claims that Beemon or some other prison official purposefully
destroyed the footage in bad faith because it would have shown damning
evidence of Beemon allowing inmates assigned to other units to enter
Schreane’s unit and generally ignoring her duties. Beyond this accusation,
however, Schreane offers no evidence that anyone who knew of his objections
to Beemon’s conduct (Beemon, Townsend, or Keffer) was involved in the
decision to record over the tape. In fact, there is no indication that any prison
official even viewed the footage because, as Cox explained, it “is not live-
monitored 24-hours a day.” Cf. Bracey v. Grondin, 712 F.3d 1012, 1015, 1019-
20 (7th Cir. 2013) (affirming the district court’s finding of no spoliation when
prison surveillance cameras erased footage three days after an incident,
pursuant to standard procedure, and the plaintiff offered no proof that any
officials viewed the footage in question prior to its erasure). Schreane has
therefore failed to make the requisite showing of bad faith to be entitled to a
spoliation inference. Accordingly, the district court did not abuse its discretion
in denying Schreane’s spoliation claim.
                       II. Eighth Amendment Claims
                        A. Violation of Policy Claim
      Schreane argues that Beemon violated his constitutional rights when
she failed to protect him against harm from other inmates. He contends first
that Beemon failed to protect him by permitting inmates assigned to other
units to enter his unit, which exposed him to a substantial risk of serious harm.
Beemon moved for summary judgment on the basis of qualified immunity,
which has two components: (1) the violation of a constitutional right (2) that
was clearly established at the time of the defendant’s conduct. Pearson v.
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Callahan, 555 U.S. 223, 232 (2009). In applying this test, courts may address
either of the two components first. Id. at 236. The plaintiff must bear the
burden “to prove that a government official is not entitled to qualified
immunity.” Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013).
      The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments.” U.S. CONST. amend. VIII. It requires the humane treatment of
prisoners and, more specifically, requires prison employees to “take reasonable
measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511
U.S. 825, 832 (1994) (internal quotation marks omitted). “It is not, however,
every injury suffered by one prisoner at the hands of another that translates
into constitutional liability for prison officials responsible for the victim’s
safety.” Id. at 834. For a prison guard’s failure to protect an inmate from
assault to violate the Eighth Amendment, the guard must have acted with
“deliberate indifference” and subjected an inmate “to a substantial risk of
serious harm.” Id. at 828-29, 834, 844 (internal quotation marks omitted). A
defendant may escape liability by “respond[ing] reasonably to the risk, even if
the harm ultimately was not averted.” Id. at 844.
      Deliberate indifference is a subjective inquiry. Atteberry v. Nocona Gen.
Hosp., 430 F.3d 245, 255 (5th Cir. 2005). “An official is deliberately indifferent
when he ‘knows of and disregards an excessive risk to inmate health or safety;
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.’” Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004) (quoting
Farmer, 511 U.S. at 837). The plaintiff may prove deliberate indifference with
circumstantial evidence, including by “showing that the risk was so obvious
that the official must have known about it.” Id. The relevant risk of harm
encompasses both “current threats” and “sufficiently imminent dangers that


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are likely to cause harm in the next week or month or year.” Horton v. Cockrell,
70 F.3d 397, 401 (5th Cir. 1995) (internal quotation marks omitted).
         Schreane argues that the record, which we must read in the light most
favorable to him, see Tolan, 134 S. Ct. at 1863; Dillon, 596 F.3d at 266, reflects
a genuine issue of material fact as to whether Beemon was “aware of facts from
which the inference could be drawn that a substantial risk of harm exist[ed],”
“dr[ew] the inference” herself, and yet disregarded it. Johnson, 385 F.3d at
524 (internal quotation marks omitted). In support of his argument, Schreane
offers evidence that he brought his concerns not only to Beemon’s attention,
but also to the attention of her supervisors, Keffer, the warden, and Townsend,
the unit manager. Beemon also acknowledges in her unsworn declaration that
she was “aware” of the prison’s policy against allowing inmates to enter units
to which they were not assigned. Although Schreane has offered summary
judgment evidence that Beemon violated this policy, our inquiry cannot end
there.
         To overcome qualified immunity, Schreane must show that Beemon
violated a right that was “clearly established” at the time. Pearson, 555 U.S.
at 232. Schreane need not demonstrate that “the very action in question has
previously been held unlawful,” but “in the light of pre-existing law the
unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). Certainly, it has long been clearly established that a prison guard
violates the Eighth Amendment by causing an inmate to be assaulted. See,
e.g., Farmer, 511 U.S. at 833 (“gratuitously allowing the beating or rape of one
prisoner by another serves no legitimate penological objective” (internal
quotation marks omitted)); Irving v. Dormire, 519 F.3d 441, 447-48 (8th Cir.
2008) (denying qualified immunity where prison guards opened cell doors so
as to allow a prisoner to attack the plaintiff). Here, however, the causal
relationship between Beemon’s violation of the policy and the assault that
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Schreane suffered is so attenuated that it is beyond clearly established law.
See Pearson, 555 U.S. at 232. Indeed, the facts show that Schreane was
assaulted by someone from his own unit. As a result, any connection between
that assault and Beemon’s occasional violation of the policy against allowing
prisoners from one unit to enter another is unclear at best. Accordingly,
Schreane has not overcome Beemon’s defense of qualified immunity.
                              B. “Snitch” Claim
      Schreane asserts that Beemon labeled him a “snitch” to other inmates,
thereby placing him at risk of the violent assault he suffered on May 1, 2008.
The Eighth Amendment duty to protect inmates from harm can be violated
when a prison official acts with deliberate indifference by exposing a prisoner
to physical assault through labeling him a “snitch” to other inmates. See, e.g.,
Adames v. Perez, 331 F.3d 508, 515 (5th Cir. 2003). Schreane claims that
Beemon must have told an inmate assigned to another unit (the one whom
Schreane had identified for Townsend on the day of the lockdown) that
Schreane was a “snitch,” that this inmate then told unidentified inmates from
Schreane’s own unit what Beemon had told him, and that Schreane was
thereafter assaulted. However, the only admissible evidence that Schreane
offers in support of his claim that Beemon labeled him a “snitch” is that his
assault came soon after his various complaints regarding Beemon’s conduct
and that the person assaulting him mentioned that Schreane had been “talking
to the police.” Schreane does not, for instance, assert that he himself heard
Beemon label him a “snitch,” nor does he offer any corroboration from other
inmates to that effect. Cf. White v. Fox, 470 F. App’x 214, 220, 223 (5th Cir.
2012) (per curiam) (reversing summary judgment on failure-to-protect claim
where plaintiff supported his assertions of being labeled a “snitch” with two
sworn   affidavits   from   fellow   prisoners).      Schreane    offers   only   an
unsubstantiated assertion that Beemon labeled him a “snitch.” See Ragas v.
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Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (“[U]nsubstantiated
assertions are not competent summary judgment evidence.”). Because there is
no dispute as to any material fact regarding Schreane’s “snitch” claim,
summary judgment was warranted for this claim as well.
                              CONCLUSION
     For the foregoing reasons, the district court’s grant of summary
judgment is AFFIRMED.




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