     Case: 18-30837   Document: 00515109438       Page: 1   Date Filed: 09/09/2019




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

                                                                       FILED
                                   No. 18-30837                September 9, 2019
                                                                  Lyle W. Cayce
CLARENCE JOSEPH JASON,                                                 Clerk


             Plaintiff–Appellee,

v.

ROBERT TANNER, Warden, Rayburn Correctional Center; SHANE
LADNER, Lieutenant; BRADLEY PIERCE, Sergeant,

             Defendants–Appellants.


                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before SMITH, GRAVES, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
       Clarence Jason was struck by a fellow inmate on the back of the head
with a yard tool that the prison issued to inmates. Jason sued four state
officials under § 1983 for violating his Eighth Amendment rights, claiming
deliberate indifference and failure to train. The officials asserted qualified
immunity, but the district court granted it only to one official. The other three
appeal that denial. We REVERSE and grant qualified immunity to all four
officials.
                                        I
       Clarence Jason was an inmate at a Louisiana prison. The prison has an
inmate yard that features a football field, a baseball field, and a basketball
court. One day while Jason was on the yard, a fellow inmate struck him on the
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                                  No. 18-30837
back of the head with a sling blade. A sling blade is a manual weed-cutting tool
consisting of a long wooden handle with a heavy (often hooked) steel blade at
the end. The attacker had a sling blade in the first place because Sergeant
Master Bradley Pierce had issued it to a third (and otherwise uninvolved)
inmate as part of a program in which inmates tended the yard.
      The prison issued a few sling blades each morning. To check out a sling
blade, an inmate handed over his ID card. (An inmate relies on his ID for
meals, attending educational programs, visitation privileges, and “virtually
anything else” that requires leaving his unit. So, apparently, the exchange was
a meaningful accounting measure.) Meanwhile, officers supervised the
inmates by making periodic rounds in the yard.
      Despite this ID-exchange protocol, one inmate with a sling blade
abandoned his tool and wandered off. Before the supervising officer noticed,
the attacker picked up the discarded blade and cracked Jason’s skull from
behind. The blow caused Jason “severe head trauma.”
      Right before this, Jason had gotten into an argument with his attacker.
But other than that, Jason alleges no previous disputes with him. The prison
discovered the attack when the supervising officer, Lt. Shane Ladner, came
across a pool of blood and a broken sling blade while on patrol. At that point,
Ladner radioed for help, and the officers nabbed the attacker.
      All of this happened despite the prison’s Tool Control Policy. The warden,
Robert Tanner, testified that he and several other prison officials drafted the
Tool Control Policy; that the policy is reviewed annually; and that the
American Correctional Association found that the tool policy complied with its
standards in every audit since 1993.
      The Tool Control Policy instructs the prison on how to inventory and
categorize various tools—like “restricted tools” and “compound maintenance
tools.” Jason seemed to imply in his brief that sling blades were restricted tools.
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And the district court too determined that they were restricted tools. But
according to the prison officers, “swing blades and other similar yard tools . . .
(such as shovels, reel mowers, and hoes)” weren’t classified as restricted.
Presumably, they may have been classified as “compound maintenance tools.”
      In any event, under the policy, the prison stores yard tools in a locked
storage room while they’re not being used. The prison issued yard tools for two
to three hours at a time. And the officers testified that, under the policy, they
“received regular, ongoing training . . . to ensure the safety and security of the
inmates.”
      As for monitoring the yard, Ladner and Pierce testified that
         1. They both make rounds;
         2. Two “dorm officers” “observe the yard through the dorm
            windows during their [dorm] rounds”;
         3. Several tower cameras at the fence line continually show
            yard activity;
         4. The “Gate” officer has a line of sight “over the front portions
            of [the yard]”; and
         5. So do “officers stationed at the gym, and the laundry, and
            the vo-tech building” as well as the Gate officer for another,
            nearby prison unit.

But none of these measures prevented this attack.
      Going “at least as far back as 2007,” there had been “no prior assaults by
inmates with a yard tool at [the prison].” And “during the previous seven-year
period, there [had] only been four incidents”—three with a broom and one with
a mop.
                                        II
      Jason filed a § 1983 suit asserting violations of his Eighth
Amendment rights. He sued:
         • Shane Ladner, Lieutenant at the prison;
         • Bradley Pierce, Sergeant Master at the prison;

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                                  No. 18-30837
         • Robert Tanner, Warden of the prison; and
         • James LeBlanc, Secretary of the Louisiana Department of
            Public Safety and Corrections.
As to Ladner and Pierce, Jason claims they were deliberately indifferent to his
safety. And as to Tanner and Bradley, Jason claims that they failed to properly
train prison officers.
      The defendants moved for summary judgment, asserting qualified
immunity. The district court granted Secretary LeBlanc qualified immunity.
But it denied qualified immunity to Ladner, Pierce, and Tanner.
      For Ladner and Pierce, the district court found that they had subjective
knowledge of the risk in handing out sling blades to inmates. The court also
held that “even if Defendant Pierce and Defendant Ladner did not have
subjective knowledge of the substantial and obvious risk posed by handing out
potentially dangerous tools to inmates without appropriate supervision, the
risk was so obvious that they should have known.” And the court determined
that they were deliberately indifferent because they did not show that a prison
official “had a direct line of sight and was actually looking at all inmates while
they used restricted tools” at all times.
      For Tanner, the district court found that there was a material dispute
about how many minutes of training Pierce and Ladner received; and so
whether they were adequately trained. The district court held that this
potential lack of training would’ve caused the attack because the officers
“lacked basic knowledge about the [tool policy].” And finally, the court held that
under the “single incident exception,” there was a material dispute about
whether Tanner’s failure to train his officers was so “obviously likely to lead to
an assault” that it constitutes deliberate indifference.
      Ladner, Pierce, and Tanner appeal the denial of qualified immunity.


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                                            III
       “The denial of a motion for summary judgment based on qualified
immunity is immediately appealable notwithstanding that such denial was
premised upon the existence of ‘material issues of fact.’” 1 We have jurisdiction
to review only the district court’s legal analysis of qualified immunity. 2
       We review the denial of qualified immunity de novo. 3 In doing so, we
assess the scope of established rights and the reasonableness of officer
conduct. 4 Summary judgment is appropriate only if “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” 5 In reviewing, we consider only “the scope of clearly established
law and the objective reasonableness” of the defendant’s acts (as determined
by the district court). 6 As we’ve explained, we “can review the materiality of
any factual disputes, but not their genuineness.” 7
       Materiality challenges “contend[] that taking all the plaintiff’s factual
allegations as true no violation of a clearly established right was shown.” 8 And
we must view the facts in the light most favorable to the plaintiff. 9
                                             IV
       As the Supreme Court explained in Harlow, government officials have a
right to qualified immunity when carrying out their duties. 10 But that



       1 Thompson v. Upshur Cty., 245 F.3d 447, 455 (5th Cir. 2001) (alteration omitted)
(quoting Behrens v. Pelletier, 516 U.S. 299, 3134 (1996)).
       2 Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 552 (5th Cir. 1997).
       3 Thompson, 245 F.3d at 456.
       4 Freeman v. Gores, 483 F.3d 404, 410 (5th Cir. 2007).
       5 FED. R. CIV. P. 56(a).
       6 Thompson, 245 F.3d at 456.
       7 Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (emphasis in original)

(quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000)).
       8 Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 379 (5th

Cir. 2005).
       9 Southard, 114 F.3d at 552.
       10 Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982).

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                                      No. 18-30837
immunity is not absolute. Plaintiffs can go to trial if they show that the official
violated their clearly established right. 11 In other words, it’s a two-prong test—
(1) whether the official violated a right; and (2) whether that right was clearly
established.
       The constitutional right here is the Eighth Amendment’s protection
against cruel and unusual punishment. As the Supreme Court explained in
Farmer 12 and as we reiterated in Williams, “prison officials have a duty to
protect prisoners from violence at the hands of other prisoners.” 13 For claims
against officials who failed to adequately protect an inmate and who failed to
train, there are different tests. But both largely turn on the existence of
“deliberate indifference.”
                                             A
       The Supreme Court’s 1994 Farmer decision held that prison officials
violate their duty to protect prisoners under the Eighth Amendment “only
when two requirements are met.” 14 First, as an objective matter, the
deprivation or harm must be “sufficiently serious.” 15 Second, the official must
have been deliberately indifferent. 16
       The Supreme Court defined the first element—sufficient seriousness—
as the “denial of the minimal civilized measure of life’s necessities.” 17 Jason
sustained a serious head wound. So his injury meets the first requirement of
the Farmer standard.



       11  Id.; see also Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013); Ontiveros v.
City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
        12 Farmer v. Brennan, 511 U.S. 825, 833 (1994).
        13 Williams v. Hampton, 797 F.3d 276, 280 (5th Cir. 2015) (en banc) (quoting Farmer,

511 U.S. at 833).
        14 Farmer, 511 U.S. at 834.
        15 Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
        16 Id.
        17 Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

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                                  No. 18-30837
      As for deliberate indifference, the Supreme Court defined it as when the
official “knows of and disregards an excessive risk to inmate health or safety.” 18
In other words, it’s a subjective test. Elaborating, the Supreme Court
explained: “[T]he 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. This approach comports best with the text of the
Amendment as our cases have interpreted it. The Eighth Amendment does not
outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual
‘punishments.’ ” 19
      But the district court seemed to misapply the test. The court determined
that Ladner and Pierce knew the risk. But the court failed to identify evidence
indicating that they knew of a “substantial risk” that a fellow inmate would
attack Jason. Ladner and Pierce acknowledged that there was a risk that an
inmate could use a sling blade to attack someone. But there were measures in
place to prevent that. A substantial risk requires more.
      The district court next concluded that Ladner and Pierce disregarded
that risk. The court’s rationale? Ladner and Pierce couldn’t prove that
everyone who was supposed to keep watch in fact had a line of sight and
actually watched the inmates—at all times. Plus, neither Ladner nor Pierce
witnessed the assault. But that doesn’t show disregard of a risk.
      Ladner and Pierce’s jobs were simply to keep track of the blades and to
keep an eye on the prisoners while they made their rounds. Jason never
alleged, and the district court never asserted, that Ladner and Pierce shirked
their duties; that they handed out sling blades and then failed to do their




      18   Id. at 837.
      19   Id.
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                                  No. 18-30837
rounds. The sad reality is simply that, in this case, the prison’s protocol wasn’t
enough to keep Jason safe.
      Consider our 2015 en banc opinion Williams. 20 There, one of the prison
guards—Hampton—failed to check that her block gun was loaded. It was
supposed to contain a hard, nonlethal rubber slug. But it was empty. And after
the relieving officer traded places with Hampton, prisoners escaped from their
exercise pens, attacking fellow inmates who later sued. 21
      In its internal investigation, the prison found that Hampton violated her
duties, thus threatening the safety of the prisoners and her fellow guards. 22
Even so, we still granted her qualified immunity. There was no evidence that
Hampton knew the block gun was unloaded when she handed it to the relieving
officer. 23 So she didn’t realize there was “an excessive risk to inmate safety or
that she disregarded such a risk.” 24 And we also emphasized that there was
“no evidence that any inmate had escaped from the exercise pens prior to the
day of the attacks at issue.” 25 In granting qualified immunity, we stressed that
deliberate indifference “has its genesis in the cruel and unusual punishments
clause of the Eighth Amendment.” 26 Yet these “acts or omissions did not
amount to punishment.” 27
      Here, there was no evidence that Ladner and Pierce shirked their duties.
No one alleges that they themselves did anything wrong. And even in Williams,
when the defendant had made a mistake, that alone still wasn’t enough to




      20 797 F.3d at 278–80.
      21 Id.at 279–80.
      22 Id.at 286.
      23 Id. at 287.
      24 Id. at 288.
      25 Id. at 289.
      26 Id.
      27 Id.

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defeat qualified immunity. What’s more, there was no evidence that any
inmate had ever before attacked a fellow inmate with a sling blade.
      Admittedly, one might have reservations about the sensibility of giving
inmates sling blades to begin with. But under our en banc decision in Williams,
Ladner’s and Pierce’s alleged individual conduct doesn’t rise to deliberate
indifference. They should thus be immune from suit.
                                             B
      Turning to Tanner: Section 1983 liability for supervisory officials hinges
on a three-part test, which we reiterated in our 2001 Thompson opinion. 28
First, the supervisor must’ve failed to train the officers involved. Second, that
failure to train must’ve caused the violation of the plaintiff’s rights. Third, the
failure to train must’ve constituted deliberate indifference. 29
      The district court held that Tanner failed to adequately train his officers.
The court held so because it found “that in 15 years, Defendant Pierce received
only 15 minutes of documented training related to ‘tools,’ and Defendant
Ladner, in 24 years of service, received 5.5 hours of ‘tools’ training, all prior to
2009.” The appellants urge that our 2005 Roberts opinion cautioned that
adequacy-of-training assessments should consider all training provided rather
than be construed too narrowly. 30 We read Roberts differently, as focused on
the training “in relation to the tasks the particular officers must perform.” 31
      Even so, it wasn’t the lack of training that caused the risk to Jason.
Rather, it was the sufficiency of the overall protocol—having only two guards
making rounds and relying on other guards peering out of windows. But that
situation might have been a mere reality of the prison’s budget.



      28 Thompson, 245 F.3d at 459.
      29 Id.
      30 Roberts v. City of Shreveport, 397 F.3d 287, 293–94 (5th Cir. 2005)).
      31 Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).

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      Regardless, even if the district court were right about the first two
requirements,     its   deliberate-indifference     analysis     runs    aground.   The
deliberate-indifference requirement stems from the Supreme Court’s ruling in
Monell some 40 years ago, rejecting pure respondeat superior liability
under § 1983. 32 It was only eight years ago that the Supreme Court, in
Connick, fully elaborated on deliberate indifference. In the Court’s words:

      “Deliberate indifference is a stringent standard of fault, requiring
      proof that a municipal actor disregarded a known or obvious
      consequence of his action.” Bryan Cty. [v. Brown, 520 U.S. 397, 410
      (1997)]. Thus, when city policymakers are on actual or constructive
      notice that a particular omission in their training program causes
      city employees to violate citizens’ constitutional rights, the city
      may be deemed deliberately indifferent if the policymakers choose
      to retain that program. 33
      In Connick, the Supreme Court considered “whether a district attorney’s
office may be held liable under § 1983 for failure to train based on a single
Brady violation.” 34 The case had to do with a supposed armed robbery and
murder. Despite convictions for both charges, Thompson (the plaintiff) was
innocent. It was only after nearly two decades in prison—one month from
execution—that Thompson’s investigator discovered exculpatory evidence that
the prosecution failed to turn over. The reviewing court vacated both of his
convictions. And he sued the district attorney in his official capacity. 35
      The jury “found the district attorney’s office liable for failing to train the
prosecutors.” 36 On appeal, Connick (the DA) insisted that it was wrong to find
him “deliberately indifferent to an obvious need for more or different Brady



      32 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978).
      33 Connick v. Thompson, 563 U.S. 51, 61–62 (2011) (alteration omitted).
      34 Id. at 54.
      35 Id.
      36 Id. at 57.

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                                        No. 18-30837
training because there was no evidence that he was aware of a pattern of
similar Brady violations.” 37 But we affirmed. And rehearing the case en banc,
we again affirmed—this time with a down-the-middle, even split. The Supreme
Court reversed.
      The Supreme Court held that to “prove deliberate indifference,
Thompson needed to show that Connick was on notice that, absent additional
specified training, it was ‘highly predictable’ that the prosecutors in his office
would be confounded by those gray areas and make incorrect Brady decisions
as a result. In fact, Thompson had to show that it was so predictable that failing
to train the prosecutors amounted to conscious disregard for defendants’ Brady
rights.” 38 In other words, there needed to be a pattern of previous violations. 39
      Justice Scalia’s concurrence elaborated on deliberate indifference. He
explained that a “theory of deliberate indifference” which allowed liability
despite “no pattern or practice of prior violations” would effectively “repeal the
law of Monell in favor of the Law of Large Numbers.” 40
      Here, there was no repeated pattern of violations. True, there had been
three yard fights with brooms and one with a mop. Now there’s been one with
a yard tool. But prison fights are lamentably common. And three yard fights
with brooms and one with a mop just aren’t enough to constitute a pattern.
      Besides, the Supreme Court in Connick required that only very similar
violations could jointly form a pattern. 41 In that case, Thompson underscored
that “during the ten years preceding his armed robbery trial, Louisiana courts
had overturned four convictions because of Brady violations by prosecutors in




      37 Id. at 58.
      38 Id. at 71.
      39 Id.
      40 Id. at 73 (Scalia, J., concurring).
      41 Connick, 563 U.S. at 62.

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                                     No. 18-30837
Connick’s office.” 42 Yet those cases weren’t similar enough for the Court.
Similarly, four cleaning-tool incidents don’t create a pattern of violation that
should’ve put the prison on notice for a sling-blade incident.
      That’s why in our unreported 2013 Walker case, we held that even a
repeated pattern of violence isn’t by itself enough to prove deliberate
indifference. 43 There, the warden put a prisoner in the same cell as a
notoriously violent inmate. The violent inmate killed his new cellmate, and the
dead cellmate’s parents sued the prison for failure to train. Yet we held that
the plaintiffs hadn’t shown deliberate indifference because they couldn’t prove
it was the lack of training that caused the violation. 44
       Returning to the cleaning-tool incidents: Even if the district court was
right on causation, there was no pattern of violations. When inmate-on-inmate
violence is a week-to-week regularity, four broom-or-mop incidents over seven
years might not reasonably sound the yard-tool alarm. After all, many
prisoners have devised many creative ways to injure someone—shanks, 45
toothbrush shivs, 46 ruler shivs, 47 ladle shivs, 48 tightly-rolled-newspaper spears
(successfully used to kill a guard in 1985), 49 or broken black binder clips. 50
      All of this isn’t to say that prisons have no duty to ensure safety. Nor is
it to say that prisoners don’t deserve safety; or that it’s impossible to keep them



      42  Id. at 63.
      43  Walker v. Upshaw, 515 F. App’x 334, 335 (5th Cir. 2013).
       44 Id. at 339–40.
       45 Ed Pilkington, Seven Inmates Brutally Killed with Knives in South Carolina Prison

Unrest, GUARDIAN (Apr. 16, 2018), https://www.theguardian.com/us-news/2018/apr/16/7-
inmates-dead-17-injured-south-carolina-prison-fight.
       46 Brent Rose, The Many Insane Flavors of Improvised Prison Weapons, GIZMODO (Oct.

25,  2011),      https://gizmodo.com/the-many-insane-flavors-of-improvised-prison-weapons-
5853104.
       47 Id.
       48 Id.
       49 Id.
       50 Id.

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safe. No, that is all far from the truth. Rather, these makeshift-weapon
examples merely demonstrate how prisons often face novel threats. It may well
be impractical to take every single theoretically possible safety precaution.
      Besides, there is an exception that will sometimes apply (though not
here): single-incident liability as theorized in City of Canton. 51 That exception
allows liability where a municipality “fail[ed] to train its employees concerning
a clear constitutional duty implicated in recurrent situations that a particular
employee is certain to face.” 52
      One recent Fifth Circuit case used this exception: Littell. 53 There, “$50
went missing during a sixth-grade choir class.” 54 No one fessed up. So the
assistant principal “took all twenty-two girls in the choir class to the female
school nurse, who strip searched them, taking them one at a time into a
bathroom, where she checked around the waistband of their panties, loosened
their bras, and checked under their shirts.” 55 The school district allegedly
permitted “school officials to conduct invasive searches” of students. But it did
so with no training whatsoever. 56
      We found that the facts “mirror[ed] Canton’s hypothetical in all material
respects.” 57 But here, there was training. There was also a monitoring system
in place. Again, it just failed to prevent the attack. Put differently: square peg,
round hole. Littell was about a supervisor who didn’t train his subordinates;
not even at all. Had he adequately trained them, they would’ve known not to




      51 489 U.S. at 396 (O’Connor, J., concurring).
      52 Id.
      53 Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 625 (5th Cir. 2018).
      54 Id. at 619.
      55 Id. at 620.
      56 Id.
      57 Id. at 625.

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                                  No. 18-30837
strip search young girls. Yet here, it’s not so much about insufficient training.
Instead, it’s about insufficient protocol.
      This was the first and only sling-blade attack in a presumably otherwise
incident-free program. The prison had instituted safety measures against
sling-blade misuse—albeit one that didn’t prevent this attack. But the
Supreme Court’s caselaw and our caselaw emphasize that only inadequate
training can establish vicarious liability. Not simply an inadequate protocol.
                                  *      *    *
      In sum, we REVERSE the district court and grant all three appellants
qualified immunity.




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