     Case: 10-30396     Document: 00511597053         Page: 1     Date Filed: 09/08/2011




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

                                                                            FILED
                                                                        September 8, 2011

                                       No. 10-30396                        Lyle W. Cayce
                                                                                Clerk

HARDY ANDERSON,

                                                  Plaintiff–Appellee,
v.

TIM WILKINSON,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:05-CV-932


Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
        Prison inmate Hardy Anderson sued the warden of his prison under 42
U.S.C. § 1983, alleging that the warden violated his Eighth Amendment rights
by failing to prevent an attack against him by a fellow inmate. After a bench
trial, the district court ruled in Anderson’s favor and awarded him $9,000 in
damages. Because the evidence does not support a finding that the warden was
deliberately indifferent to a substantial risk of serious harm to Anderson, we
reverse and vacate the judgment.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-30396

                FACTUAL AND PROCEDURAL BACKGROUND
       Hardy Anderson was incarcerated in the Ash Unit at the Winn
Correctional Center (“Winn”), where Defendant–Appellant Tim Wilkinson served
as the warden. Winn inmates are permitted to use personal lockers to store
items such as bowls, cups, food, and drinks. A microwave is available in a
community space for inmates to heat food and drinks. The community space is
accessible from the inmates’ sleeping quarters, and the prison does not have a
policy restricting the microwave’s use to certain hours.
       On May 2, 2004, Anderson had a verbal altercation with Lynn Wells, a
new inmate who was unknown to Anderson. The argument was documented in
the prison logbook that day, but was not reported to prison officials because no
physical violence took place. Sometime around 1:45 a.m. that same night, Wells
heated a bowl of water in the microwave, approached the sleeping Anderson, and
threw the boiling hot water directly in his face. Wells was not violating any
Winn regulations by using the microwave at that hour. Corrections officers
broke up the ensuing fight, but Anderson was treated for first and second degree
burns on his face, neck, eye, shoulder, and back.
       Anderson sued Wilkinson in his personal capacity under 42 U.S.C. § 1983,
alleging that inadequate security in the sleeping area allowed Wells’s attack to
take place. Following a bench trial, the district court ruled in Anderson’s favor.
The court held that, while Anderson’s claims “regarding the general question of
security adequacy must fall,” Wilkinson had been deliberately indifferent to the
serious risk of hot-water-throwing attacks when he made the microwave
available to inmates during sleeping times “without regulation, monitoring, or
having the oven secure.”1 The court held Wilkinson liable for $9,000 in damages.


      1
        The record shows that, before trial, both Anderson and Wilkinson understood
Anderson’s sole allegation to concern inadequate security at Winn, specifically the lack of
guards inside the sleeping tier of the Ash Unit. During trial, however, the district court

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                                      No. 10-30396

       Wilkinson appeals the district court’s judgment, arguing that there was
insufficient evidence at trial to find that he was deliberately indifferent to a
substantial risk of serious harm to Anderson from a hot-water-throwing attack
by another inmate.
                              STANDARD OF REVIEW
       When a bench trial has preceded the judgment on appeal, we review the
district court’s finding of fact for clear error and its legal conclusions de novo.
French v. Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011). “A finding is
clearly erroneous if it is without substantial evidence to support it, the court
misinterpreted the effect of the evidence, or this court is convinced that the
findings are against the preponderance of credible testimony.” Id. at 577
(citation and internal quotation marks omitted). We will reverse under this
standard “only if we have a definite and firm conviction that a mistake has been
committed.” Id. (citation and internal quotation marks omitted).
                                     DISCUSSION
       “It is well established that prison officials have a constitutional duty to
protect prisoners from violence at the hands of their fellow inmates.” Longoria
v. Texas, 473 F.3d 586, 592 (5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S.
825, 832–33 (1994)). This duty, which is grounded in the Eighth Amendment’s
prohibition against “cruel and unusual punishments,” is nevertheless a limited
one. See Farmer, 511 U.S. at 832–34. To succeed on a claim for failure to
protect, an inmate must show that (1) he was “incarcerated under conditions
posing a substantial risk of serious harm,” and that (2) a prison official was
“deliberately indifferent” to this risk. Id. at 834.



appears to have broadly construed Anderson’s complaint to encompass a claim that the
warden’s failure to limit microwave access allowed the attack to take place. Because
Wilkinson on appeal does not object to the district court’s re-characterization of Anderson’s
complaint, we will consider the claim as construed by the district court.

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      Assuming arguendo that Anderson was “incarcerated under conditions
posing a substantial risk of serious harm,” id., we turn our attention to the
second element of the Farmer test. A prison official is “deliberately indifferent”
to a risk when he “knows of and disregards an excessive risk to inmate health
or safety.” Id. at 837. To “know of” a risk, an official must be “subjectively
aware” of the risk: that is, “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.” Farmer, 511 U.S. at 837; see also Adames v.
Perez, 331 F.3d 508, 512 (5th Cir. 2003). This issue is a question of fact.
Farmer, 511 U.S. at 842; Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995).
Finally, even if a prison official was subjectively aware of the risk, he may be
found free from liability if he “responded reasonably to the risk, even if the harm
ultimately was not averted.” Farmer, 511 U.S. at 844.
      The deliberate indifference standard is “an extremely high standard to
meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001). We have declined to find deliberate indifference where an official “should
have” inferred a risk posed to an inmate, requiring proof that the official “did
draw such an inference.” Adames, 331 F.3d at 514; see also Farmer, 511 U.S. at
838; Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996) (en banc).
Nevertheless, an inmate does not have to produce direct evidence of an official’s
knowledge about the risk; he may rely on circumstantial evidence to
demonstrate such knowledge. See Farmer, 511 U.S. at 842; Adames, 331 F.3d
at 512. For example, an inmate can prove the requisite knowledge by showing
that conduct or occurrences were “longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past” such that officials had subjective
knowledge of the complained risk. See Farmer, 511 U.S. at 842–43 (internal
quotation marks omitted); Adames, 331 F.3d at 512.



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                                  No. 10-30396

      Anderson takes this latter route, arguing that hot-water-throwing attacks
were so “longstanding, pervasive, well-documented, or expressly noted by prison
officials in the past” such that Wilkinson had subjective knowledge of this risk,
id. at 842–43. Wilkinson argues that the evidence adduced at trial did not
demonstrate that he subjectively knew of this risk. We agree, and therefore do
not reach the question whether Wilkinson disregarded such a risk.
      Four witnesses testified at trial in connection with this issue. Anderson
testified that “[w]e had a whole lot of these cases at Winn Correctional Center
about throwing hot water on people’s faces.” Upon questioning by the district
court, Anderson stated that there had been “at least around about eight cases,”
and that five of them had happened before his incident. But when the court
asked him to testify about those incidents, Anderson could not provide any
details. He spoke of another inmate relating to him a similar incident in which
hot water was thrown in his face while he was lying on his bed, but Anderson
also testified that this other inmate never told the warden or anyone else at the
prison about the attack. Other than this hearsay testimony, Anderson failed to
offer any specific corroboration of his allegations, stating only that other inmates
would “talk about how many cases like that had happened” during recreation.
Anderson admitted that he did not know whether any of these other alleged
incidents had been reported to Wilkinson or to Winn corrections officers.
      The shift supervisor on duty at the time of the incident, who had worked
at Winn for over seventeen years, recalled a single incident at Winn in which an
inmate had used a microwave oven to boil water to throw on another inmate.
However, she was unsure whether this incident occurred before or after Wells’s
attack on Anderson. Another Winn corrections officer who had worked at Winn
for twelve years testified that although she had read about such cases, she was
not aware of any incidents at Winn wherein an inmate had used the microwave



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                                    No. 10-30396

oven to boil something which he then threw at another inmate. In fact, she
testified that “it kind of surprised [her] that it happened like that.”
         Finally, Wilkinson testified as follows:
         I’ve been locked up for 28 years, Mr. Anderson. You can have all the
         security that you want. You’re not going to stop things in prison
         from happening. . . . I’ve not been in a penitentiary yet, whether it
         be male, female, or juvenile, that you don’t have water throwing
         incidents, that you don’t have fights, that you don’t have stabbings,
         that you don’t have aggression against one another people, because
         you’re all locked in the same area and you’re not going to get along
         every day.
         Anderson points to this testimony to support the district court’s conclusion
that “water-throwing incidents [were] well documented in Wilkinson’s
experience.” However, it is not clear that Wilkinson was testifying about
incidents involving hot water; Wilkinson’s remarks followed a series of questions
posed by Anderson regarding the availability of cleaning chemicals that inmates
could mix with water in a water-throwing attack. We are thus left with an
ambiguous statement by the warden, inadmissible hearsay testimony from
Anderson about similar incidents that may or may not have been reported to the
warden, and testimony from a corrections officer that one such attack may or
may not have occurred before the incident at issue here. It is difficult to see how
this evidence could constitute a “longstanding and pervasive” problem of which
Wilkinson must have been aware. Cf. Adames, 331 F.3d at 513 (concluding that
testimony evidencing three instances of inmates escaping their cells did not shed
any light on whether prison officials were subjectively aware of a substantial
risk of harm to an inmate at the hands of another inmate who had escaped his
cell).
         The evidence adduced at trial does not support a finding either that
Wilkinson was “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed],” or that he actually drew this


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inference. Farmer, 511 U.S. at 837. The district court therefore clearly erred in
concluding that Wilkinson was deliberately indifferent to a substantial risk of
serious harm posed by hot-water-throwing attacks at Winn.
                                CONCLUSION
      For the foregoing reasons, we REVERSE and VACATE the judgment of
the district court.




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