                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         August 14, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                           No. 02-51238
                         Summary Calendar



LARRY KEELE,

                                    Plaintiff-Counter
                                    Defendant-Appellant,

versus

FRANK GUAJARDO, III

                                    Defendant-Counter
                                    Claimant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. SA-01-CV-176
                       --------------------

Before REAVLEY, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Larry Keele, Texas prisoner # 1077576, appeals from the

district court’s grant of summary judgment for Frank Guajardo,

a detention officer at the Bexar County Adult Detention Center

(BCADC), on the ground of qualified immunity.   Keele filed a

42 U.S.C. § 1983 civil rights complaint against Guajardo alleging

that Guajardo informed another inmate of Keele’s incarceration

     *
        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that this opinion should not be published and is not precedent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.
                            No. 02-51238
                                 -2-

crimes and unlocked Keele’s cell door in order for the inmate

to assault Keele.

     This court reviews a grant of summary judgment de novo.

See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525

(5th Cir. 1999).    The facts and any inferences to be drawn

are viewed in the light most favorable to the nonmovant.       Id.

“Summary judgment is properly granted if ‘the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.’”     Id.;

FED. R. CIV. P. 56(c).

     It is unclear in the record whether Keele was a pretrial

detainee or a convicted prisoner at the time of the alleged

constitutional violation in the instant case.    However, as in

this case, when a claim is based on the “episodic acts or

omissions” of jail officials, the standard of subjective

deliberate indifference is applicable.     See Hare v. City of

Corinth, 74 F.3d 633, 643, 650 (5th Cir. 1996)(en banc).

     Official capacity

     Keele’s claim against Guajardo in his official capacity is

treated as a claim against Bexar County.    Brooks v. George

County, Miss., 77 F.3d 834, 841 (5th Cir.), withdrawn and

superceded on other grounds, 84 F.3d 157 (5th Cir. 1996).      A

governmental entity can be held liable under § 1983 only if
                            No. 02-51238
                                 -3-

official policy or custom caused the deprivation of a

constitutional right.   Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978).

     Keele has failed to establish that it was the policy or

custom of the BCADC to incite inmate assaults.   At best, Keele

alleges an isolated incident, not a widespread custom of the

BCADC to support his claim of official liability.   See Fields v.

City of Houston, 922 F.2d 1183, 1191-92 (5th Cir. 1191-92).

Accordingly, the district court’s grant of summary judgment for

Guajardo in his official capacity is affirmed.

     Individual capacity

     The district court characterized the nature of Keele’s

complaint as a failure-to-protect from another inmate claim.

However, the allegations contained in Keele’s complaint and

appellate brief fairly raise a more direct claim of cruel and

unusual punishment at the hands of Guajardo which we address

herein.

     The first inquiry in examining a defense of qualified

immunity asserted in a motion for summary judgment is to

determine whether the plaintiff has alleged “the violation of a

clearly established constitutional right.”   Siegert v. Gilley,

500 U.S. 226, 231 (1991).   The second step is to decide whether

the defendant’s conduct was objectively reasonable in light of

the legal rules clearly established at the time of the incident.

Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993).   Because
                            No. 02-51238
                                 -4-

Keele has alleged episodic acts and omissions committed by

Guajardo rather than a widespread custom at the BCADC, his claim

falls under the deliberate indifference standard regardless of

his incarceration status.    See Hare, 74 F.3d at 643, 650.   A

showing of deliberate indifference requires that the official

have a subjective knowledge of the risk of harm.     Wagner v. Bay

City, Tex., 227 F.3d 316, 324 (5th Cir. 2000).

     Keele’s allegations raise a genuine issue of material fact

over whether Guajardo’s actions constituted cruel and unusual

punishment.   Keele’s detailed account of the incident in his

complaint as well as a supporting affidavit from another inmate

raise a material fact issue over whether Guajardo himself

deliberately subjected Keele to cruel and unusual punishment.

Guajardo’s summary judgment evidence in the form of an incident

report indicating that he believed there was a “possibility” that

one of the cell doors left unsecured by the lunch relief officer

was Keele’s does not directly refute Keele’s sworn assertions in

his complaint regarding Guajardo’s involvement.    Accordingly, the

district court erred in granting summary judgment for Guajardo in

his individual capacity.    The judgment of the district court is

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
