                        REVISED JULY 1, 2002
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 01-50905



                           EUGENE CANTU,

                                                  Plaintiff-Appellee,


                               VERSUS


                   MATHEW JONES, ETC., ET AL.,

                                                           Defendants,


    MATHEW JONES, Correctional Officer; RICHARD WALTERSDORF,
    Correctional Officer; JOHN BEAIRD, Correctional Officer,

                                                 Defendants-Appellant.



           Appeal from the United States District Court
                 For the Western District of Texas
                           June 11, 2002


Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.

DeMOSS, Circuit Judge:

     Eugene Cantu filed a civil rights lawsuit on July 3, 2000,

accusing Mathew Jones, John Beaird, Richard Waltersdorf, Gary

Johnson,   and   the   Texas   Department   of     Criminal   Justice,

Institutional Division (“TDCJ-ID”) of violating his constitutional
right to be free from cruel and unusual punishment after he was

attacked by another inmate with a razor blade.                 Cantu based his

claim on the theory that the defendants allowed Carlos Hernandez to

escape from his cell and attack Cantu.             Defendants denied Cantu’s

allegations and asserted the defense of qualified immunity.

     A jury trial began on July 3, 2001, and Cantu elected to

proceed    against    only     Jones,   Waltersdorf     and    Beaird      on   his

constitutional deliberate indifference claim.               The jury returned a

verdict for Cantu, finding that the defendants had violated Cantu’s

constitutional rights and were not entitled to qualified immunity,

and awarding Cantu $22,500 in compensatory damages. Defendants now

appeal, claiming there was insufficient evidence for the jury to

find for Cantu, and, in the alternative, that they are entitled to

qualified immunity.

                                  BACKGROUND

     Cantu entered TDCJ-ID in 1981 and joined a group known as the

Mexican Mafia prison gang in 1984.          Cantu declared himself to be an

ex-gang member in 1994, but TDCJ-ID continued to classify him as a

member    of   the   Mexican   Mafia.       On   February    24,   1999,   Carlos

Hernandez, another inmate who was a member of the Mexican Mafia,

escaped from his cell and attacked Cantu with a razor blade.

Though the appellants contend that this was part of the Mexican

Mafia’s “blood-out” policy of murdering ex-gang members, Cantu

believes that the assault was orchestrated by officers at TDCJ-ID.



                                        2
     On the day of the attack, both Cantu and Hernandez were housed

in the same maximum-security area of the Connally Unit in Kenedy,

Texas.   The area they were housed in is known as the F-Pod of

administrative   segregation.        Offenders   incarcerated   in

administrative segregation remain alone in their cells for 23 hours

a day and are allowed out of their cells for only one hour of

recreation each day followed by a shower.    Most of the offenders

placed in administrative segregation are there because of gang

membership.

     Every time an administrative segregation offender comes out of

his cell, TDCJ-ID policy requires that he be under the control of

two correctional officers known as “rovers.”      The rovers stand

outside the cell, search and handcuff the offender in the cell, and

then signal to a third correctional officer stationed in the picket

to open the cell door.    The picket officer opens the cell door

electronically by pushing a button on a control panel. This picket

officer is responsible for operating all of the locks and doors in

the six sections of F-Pod.

     On the day Cantu was attacked, Waltersdorf was a rover, and

Jones was the picket officer in F-Pod.   Beaird was not in F-Pod on

the day Cantu was attacked. The only other correctional officer in

F-Pod was Mark Simecek, another rover.   At this time, the Connally

Unit was understaffed, so Waltersdorf and Simecek split up and

escorted offenders to recreation by themselves, in violation of



                                 3
TDCJ-ID policy. Each took half of F-Pod, with Waltersdorf covering

the sections containing Cantu and Hernandez.         On the day of the

attack, Cantu was housed downstairs in Section C, Cell 34, and

Hernandez was housed upstairs in Section B, Cell 25.              A wall

separates Section B from Section C, with the only opening being a

door between the sections located on the second floor.         This door

is supposed to be locked at all times and can only be opened by the

picket officer.   Sections B and C are structured so that persons in

Section B cannot see into Section C and vice versa.           Similarly,

inmates in one section of F-Pod cannot hear sounds from the other

sections of F-Pod.

     On the day of the attack, Waltersdorf, working his third or

fourth day as a shift rover,1 removed Hernandez from his cell.

Following   recreation   and   a   shower,   Waltersdorf   strip-searched

Hernandez and placed him back in his cell.           Though Waltersdorf

claims to have then closed the cell door and pulled on it to make

sure it was locked, the door was not secure.       The appellants claim

that Hernandez was able to manipulate the door with a piece of

string and toilet paper so as to make the top lock not become

completely secure.   The appellants claim that Hernandez was then

able to lift the door up out of its bottom lock to escape.




     1
      It appears that Waltersdorf was previously working a shift at
TDCJ-ID that did not require him to escort inmates from their
cells.

                                     4
     After placing Hernandez in his cell, Waltersdorf then walked

down the second row of cells and went through the door separating

Section B from Section C.     Waltersdorf claims that he then slammed

the door shut behind him but did not check to make sure it was

locked as it was supposed to lock automatically and electronically

when it closes.    The door, however, was not locked.           Jones, the

picket officer, claimed that he was watching the rovers at this

time and did not notice that the section door was unlocked.         Though

there are picket lights that indicate whether a door is secure or

not, Jones claims that he was not facing the picket lights.

     After shutting the section door, Waltersdorf proceeded down a

flight   of   stairs   to   the   first   row   in   Section   C.   Though

administrative inmates are escorted to their one hour of recreation

according to a set schedule, for some reason, Waltersdorf took

Cantu for recreation out of turn on             the day of the attack,

escorting him immediately after Hernandez.2          Waltersdorf testified

that it took him approximately three minutes to walk down to

Cantu’s cell and let him out after returning Hernandez to his cell.

Waltersdorf searched and handcuffed Cantu and then Jones unlocked

Cantu’s door from the picket.       Cantu then stepped out of his cell

and began to walk with Waltersdorf toward the crash-gate leading to

the recreation area. As this was happening, however, Hernandez was


     2
      The appellants do not explain why Cantu was taken out of turn
that day, but only offer up possibilities as to why any inmate
might be taken out of turn.

                                     5
escaping from his cell. Hernandez opened his cell door and then

passed through the unlocked section gate. Jones claims that it was

at this point that he first noticed Hernandez had escaped and

called the main desk in administrative segregation for backup, and

notified Simecek that Waltersdorf needed help.3                  Jones was unable

to do anything more, however, as TDCJ-ID policy forbids the picket

officer from          leaving   the    picket   for    any   reason,    including   a

disturbance.

       After passing through the section door, Hernandez went down

the stairs toward Cantu and Waltersdorf.                 Hernandez then attacked

Cantu from behind, knocking him down and then slashing his face and

neck       with   a   razor   blade.     Though       correctional     officers   are

forbidden by TDCJ-ID policy from getting involved in an inmate on

inmate attack until other officers arrive on the scene, Waltersdorf

claims that he grabbed Hernandez’s wrist, but Hernandez jerked his

hand away.        Waltersdorf claims that it was at this point that he

realized that Hernandez had a razor blade and so he stepped back

with a food tray bar raised above his head.                   Waltersdorf claims

that he then instructed Hernandez to get off of Cantu at which time

he claims Hernandez ceased.              Cantu’s testimony does not confirm


       3
      Though Jones testified that he did not notice that the door
was unlocked, he authored a handwritten statement after the attack,
stating that he noticed the door was unlocked but did not notify
Waltersdorf of this fact. Appellants claim that this letter is not
an admission of intentionally leaving the door unlocked, but that
it merely admits that Jones could not get Waltersdorf’s attention
about the unsecured door.

                                           6
Waltersdorf’s version. Cantu did not testify to seeing Waltersdorf

attempting to help and claims that the only thing Waltersdorf said

was, “Stop that, you are going to get us into trouble.”         Cantu also

testified that the attack did not cease until Simecek arrived.

Simecek   testified   that   he   was   notified   of   the   attack   while

escorting inmates to recreation in another area.          When he arrived

at the crash-gate, he saw Waltersdorf holding an object that looked

like a riot baton and yelling at Hernandez.             Simecek then went

around the picket to get to Section C, and when he came into view

of the attack he yelled “stop.”         He testified that it was at this

point that Hernandez stopped cutting Cantu and ran back into

Section C, closing the door behind him.

     After the attack, Cantu walked to the infirmary, where he

required 52 stitches.    Captain Beaird had Cantu brought into his

office the next day.    Cantu claims that Beaird asked him if he was

feeling any better and then told him, “You know what?          I don’t like

a snitch.    Consider yourself lucky that you are still alive.”

Cantu responded by stating that he wanted criminal charges filed

against Hernandez and by warning Beaird that he was going to file

a lawsuit.

     A few months before the attack, Cantu began having problems

with several correctional officers on the Connally Unit.               These

officers worked a schedule known as card B.4            From December 25,

     4
      Officers Waltersdorf and Jones worked card A, which was a
separate shift. Apparently, card A and card B officers work on

                                    7
1998, through January 1999, Cantu wrote twelve letters to various

TDCJ-ID officials complaining that Officers Gomez, Nieto, Alvarado

and Carnesalas, all card B officers, were mistreating him and

threatening him.   Three of the twelve letters were sent to Beaird,

who was the captain in charge of administrative segregation, and

who was, therefore, also in charge of the officers identified in

Cantu’s letters as well as Jones and Waltersdorf.    In his letters,

Cantu complained specifically that Officer Gomez had threatened to

have him assaulted and that Cantu felt his life was in danger.

Cantu also expressed concern that officers could let inmates out of

their cells to attack him and that Officer Gomez was discussing

Cantu with some members of the Mexican Mafia.       Beaird testified

that he did not recall ever seeing any letters from Cantu, but this

is contested by Cantu’s testimony that Beaird told him after the

attack that he did not like a “snitch.”

     Cantu filed a civil rights lawsuit pro se on July 3, 2000,

accusing Mathew Jones, John Beaird, Richard Waltersdorf, Gary

Johnson, and TDCJ-ID of violating his constitutional right to be

free from cruel and unusual punishment after he was attacked by

another inmate with a razor blade.   Cantu’s appointed lawyer later

added a claim for negligence.   Cantu based his claim on the theory

that the defendants allowed Carlos Hernandez to escape from his

cell and attack Cantu.   Defendants Beaird, Waltersdorf and Johnson



different days and are not at the prison at the same time.

                                 8
denied Cantu’s allegations and asserted the defense of qualified

immunity on   September       5,   2000.   Jones   answered    and   asserted

qualified immunity on September 15, 2000.

     TDCJ-ID filed a motion to dismiss on March 1, 2001, claiming

that it was an improper party to a § 1983 lawsuit, and that it was

immune from suit in federal court under the Eleventh Amendment.

The trial court dismissed the § 1983 claim on March 13, 2001, and

the negligence claim on March 29, 2001.

     A jury trial began on July 3, 2001, and Cantu elected to

proceed   against    only     Jones,   Waltersdorf   and    Beaird    on   his

constitutional deliberate indifference claim.          Cantu alleged that

Beaird, after seeing Cantu’s letters, conspired with Waltersdorf

and Jones to allow an inmate to escape so that he would be

attacked.   The district court denied the defendants’ motion for

judgment as a matter of law at the close of Cantu’s case and again

at the end of the presentation of the evidence.            The jury returned

a verdict for Cantu, finding that the defendants had violated

Cantu’s constitutional rights and were not entitled to qualified

immunity, and awarding Cantu $22,500 in compensatory damages.

Final judgment was entered on July 17, 2001, and Jones, Waltersdorf

and Beaird filed their renewed motion for judgment as a matter of

law on July 26, 2001.       The district court denied the renewed motion

on August 8, 2001.    Jones, Waltersdorf, and Beaird now appeal.




                                       9
                                   DISCUSSION

Did the district court err by not granting the appellants’ motion
for judgment as a matter of law in light of the evidence presented
at trial?

     The appellants contend that there is absolutely no evidence

that any of them were aware of any risk of harm to Cantu until the

attack    began   and   that   they   acted     reasonably    at   all   times.

Appellants point to the lack of any direct evidence that Jones,

Waltersdorf or Beaird were aware of Cantu’s letters as well as to

the lack of any direct evidence that this was anything more than a

colossal coincidence.        Appellants claim that, at most, the proof

could only show negligence, which is below the standard needed for

deliberate indifference.

     This Court conducts a de novo review of a district court’s

denial of a motion for judgment as a matter of law.            Mota v. Univ.

of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir.

2001).    In reviewing the motion, this Court should review all of

the evidence in the record, drawing all reasonable inferences in

favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,

Inc.,    530   U.S.   133,   150   (2000).    “[I]f   there   is   substantial

evidence...of such quality and weight that reasonable and fair-

minded men in the exercise of impartial judgment might reach

different conclusions, the motion[] should be denied.”              Boeing Co.

v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled

in part on other grounds, Gautreaux v. Scurlock Marine, Inc., 107

                                       10
F.3d 331 (5th Cir. 1997) (en banc).       However, a mere scintilla of

evidence is insufficient to present a question for the jury.           Id.

       The Supreme Court has held that the treatment a prisoner

receives in prison and the conditions under which he is confined

are subject to scrutiny under the Eighth Amendment.              Farmer v.

Brennan, 511 U.S. 825, 832 (1994).       Specifically, prison officials

have a duty to protect prisoners from violence at the hands of

other prisoners.    Id. at 833.    “[A] prison official may be held

liable under the Eighth Amendment for denying humane conditions of

confinement only if he knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to take

reasonable measures to abate it.”       Id. at 847.   In other words, the

prison official must have a sufficiently culpable state of mind,

which,    in   prison-conditions   cases,     is   one   of   “deliberate

indifference” to inmate health or safety.          Id. at 834.     To find

that an official is deliberately indifferent, it must be proven

that “the official 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.”          Id. at

837.

       Though the present case involves an extraordinary set of

circumstances, we do not believe that there was insufficient

evidence on which the jury could base its decision.           The jury was


                                   11
offered more than a scintilla of evidence and was free to make

credibility determinations based on that evidence.         The appellants

claim that this case was nothing more than a colossal coincidence,

however, the jury obviously disagreed.          We hold that the district

court did not err in denying the appellants’ motion.

Did the district court err by not granting the Appellants’ motion
for judgment as a matter of law on the basis of qualified immunity?

     In reviewing a claim of qualified immunity, this Court must

determine: “(1) whether the plaintiff has alleged a violation of a

clearly established constitutional right; and, (2) if so, whether

the defendant’s conduct was objectively unreasonable in the light

of the clearly established law at the time of the incident.”         Hare

v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).                   The

appellants   do   not    contest   that   the   constitutional   right   of

offenders to be protected from harm was clearly established at the

time of the attack.        The appellants do contest, however, the

finding that they acted in an objectively unreasonable fashion.

     All of the appellants’ arguments on this point rely on the

assumption that the appellants were never aware that the attack was

going to happen and that they acted reasonably after the events

started to unfold.      This argument ignores, however, that the claim

against them involves deliberate indifference on their part.             The

jury found that the appellants essentially orchestrated the attack.

This is in no way reasonable behavior for a prison official.

Therefore, we conclude that the resolution of the first issue in

                                     12
this case is determinative and that the appellants are not entitled

to qualified immunity.



                            CONCLUSION

     Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not err in denying the

appellants’ motion for judgment as a matter of law and that the

jury’s verdict should remain undisturbed.   We also conclude that

the district court did not err in denying appellants’ motion for

judgment as a matter of law based on qualified immunity.        We

therefore AFFIRM the district court’s decision.

               AFFIRMED.




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