                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                       June 17, 2004
                           FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                No. 03-10411



RAUL RODRIGUEZ,

                                                 Plaintiff - Appellee,

                                    versus

L. LOZANO, Smith Unit; ET AL,

                                                 Defendants

L. LOZANO, Smith Unit; CAPTAIN A. ALVARADO, Smith Unit; OFFICER K.
VELA, Smith Unit; J. COLLINS; G. MITCHELL,

                                                 Defendants - Appellants.



            Appeal from the United States District Court
                 For the Northern District of Texas


                              ( 5:00-CV-265 )

Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*

      Raul Rodriguez, a state prisoner, brought this § 1983 action

against Warden L. Lozano, Captain A. Alvarado, and Officers Vela,

Smith, and Collins, state prison officials, alleging that they had

failed to protect him from fellow inmates in violation of the

Eighth Amendment.     The prison officials moved for summary 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should not be published and is not precedent except under the limited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.
on the basis of qualified immunity.           The Magistrate Judge denied

the motion, finding that genuine issues of material fact precluded

summary judgment.        The officials here challenge the materiality of

the existing genuine issues of fact and the admissibility of

Rodriguez’s summary judgment evidence.             We hold that the fact

issues found to preclude summary judgment for Lozano, Alvarado,

Collins, and Mitchell are immaterial, and reverse the denial of

their summary judgment motions. We agree with the Magistrate Judge

that genuine issues of material fact preclude summary judgment for

Officer Vela.

                                       I

      In April 2000, Rodriguez was an inmate in the Smith Unit of

the Texas Department of Criminal Justice.1            Defendant Lupe Lozano

was the Warden and Defendant Alberto Alvarado was a Captain of the

Smith Unit.    Defendants Jody Collins, Gregory Mitchell, and Kevin

Vela were correctional officers in the facility.

      Officers Collins and Mitchell were assigned to be “rovers” on

the night     of   the    incident,   patrolling   three   sections    of   the

building, passing out mail, making sure all inmates were accounted

for, and letting inmates in and out of their cells and into the

building’s common areas.       Officer Vela worked the “control picket”

position that night.        The officer in the control picket oversees


      1
        Because this is an interlocutory appeal from the denial of Defendants’
motion for summary judgment, the facts are presented in the light most favorable
to Plaintiff Raul Rodriguez. See White v. FCI USA, Inc., 319 F.3d 672, 674 (5th
Cir. 2003).

                                       2
the three sections of the building patrolled by the rovers and

watches the rovers as they perform their duties.        From the control

picket, Officer Vela could open and close section doors and cell

doors by remote control. Lights in the control picket signal which

doors are closed and which are open.       Apparently, cell doors can,

however, be jammed to prevent their locking even while generating

a signal to the control picket officer that the jammed door is

closed and locked.

      Around 6:30 p.m. on April 7, 2000, Officers Collins and

Mitchell conducted a count of the E-Section, where Rodriguez was

housed.    Finishing their count, they moved to another section of

the facility.   Fifteen or twenty minutes later, Rodriguez awakened

to find that his cell door was open.           Rodriguez alleges that

Officer Vela opened his cell door, and he provides affidavits from

Juan Carlos Diaz and Derrick Johnson supporting this allegation.

      Rodriguez stepped outside his cell and was promptly confronted

by three or four other inmates, who dragged him into his cell,

closed the door, and assaulted him. Rodriguez’s attackers left the

cell, but twice returned to beat Rodriguez further.             Rodriguez

again alleges that Officer Vela opened his cell door to let them

in.   Rodriguez provides evidence suggesting that Officer Vela knew

that the    inmates   were   attacking   Rodriguez,   but   failed   to   do

anything to stop the beating.

      At approximately 8:30 p.m., Officers Collins and Mitchell



                                    3
returned to the E-Section for another count of the inmates.              Once

there, they found the badly injured Rodriguez.             Officer Mitchell

contends that the lock on Rodriguez’s cell door had been jammed,

which prevented the door from locking, yet made the door appear

locked from the control picket.          Officers Collins and Mitchell

immediately called for assistance.           Rodriguez was taken to an

outside hospital.

     Warden Lozano and Captain Alvarado were not present during the

incident.   Warden Lozano subsequently conducted an investigation.

Captain Alvarado played no role in the investigation.

     Rodriguez, proceeding pro se, filed a lawsuit under 42 U.S.C.

§ 1983, alleging in relevant part that Defendants had violated his

Eighth Amendment rights by failing to protect him from his fellow

inmates.    He retained counsel approximately one year after filing

his complaint, although he did not file an amended complaint.

Defendants moved for summary judgment on the basis of qualified

immunity.    Rodriguez filed a reply to Defendants’ motion, which

included evidence that had not been formally provided to Defendants

during discovery.       Defendants   filed    a   motion   to   strike   this

evidence, which the magistrate denied. The Magistrate Judge denied

Defendants’ motion for summary judgment, after finding that genuine

issues of material fact remained.            Defendants now bring this

interlocutory appeal.




                                     4
                                       II

                                       A

      We must first determine whether we have jurisdiction to hear

this appeal.2      Rodriguez claims that we do not have jurisdiction to

review the denial of summary judgment because the Magistrate Judge

found that genuine issues of material fact remain, and we are

precluded from reviewing such factual disputes on interlocutory

appeal.      Defendants, however, claim that their appeal turns on an

issue of law because they challenge the materiality of the genuine

issues of fact, not that genuine issues of fact exist.

      In Mitchell v. Forsyth,3 the Supreme Court held that “a

district court’s denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291.”             This court has

held that “[t]he 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.’”4      Although the court does not have jurisdiction to review

the lower court’s finding that particular factual issues are



      2
         See Behrens v. Pelletier, 516 U.S. 299, 312-14 (1996); Smith v.
Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998) (“Before looking at the merits of
this interlocutory appeal [from a denial of qualified immunity], we first examine
the basis for our jurisdiction.”).
      3
          472 U.S. 511, 530 (1985).
      4
        Thompson v. Upshur County, 245 F.3d 447, 455 (5th Cir. 2001) (brackets
and quotation marks omitted) (citing Behrens, 516 U.S. at 312-314).

                                       5
“genuine,”     the   court     does   have   jurisdiction   “to    review   the

magistrate’s determination that certain facts or factual disputes

are ‘material’ to the issue of qualified immunity.”5               Issues are

material when “resolution of the issues might affect the outcome of

the suit under governing law.”6

     Given that Defendants argue on appeal that the genuine issues

of fact in this case are not material and that summary judgment was

appropriate notwithstanding the existing fact questions, this panel

has jurisdiction under 28 U.S.C. § 1291.7           In resolving Defendants’

contentions, “we review the complaint and record to determine

whether, assuming that all of [Rodriguez’s] factual assertions are

true, those facts are materially sufficient to establish that

defendants      acted     in   an     objectively   unreasonable     manner.”8

Specifically, we must determine whether the facts as alleged by

Rodriguez constitute an Eighth Amendment violation and whether any

genuine issues of material fact preclude summary judgment.

     Rodriguez also asserts that we lack jurisdiction to consider

Defendants’ challenge to the district court’s consideration of

certain summary judgment evidence.             Defendants contend that in

concluding that genuine issues of material fact precluded summary


     5
         Id. at 455-56.
     6
         Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998).
      7
        Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 340-43 (5th Cir. 2001);
Colston, 146 F.3d at 284.

     8
         Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).

                                         6
judgment, the Magistrate Judge should not have considered prisoner

affidavits contained in Rodriguez’s response because the evidence

was not formally provided to Defendants during discovery.                  We have

previously      stated   that   “[w]here    .   .    .    the    admissibility   of

particular evidence is critical to a summary judgment founded on

qualified immunity, this court has not hesitated to review the

admissibility of the evidence on appeal.”9                      In this case, the

controverted evidence is critical to the summary judgment because

it is Rodriguez’s primary evidence of the state officers’ conduct.

As a result, this panel has jurisdiction to consider whether the

Magistrate Judge properly considered Rodriguez’s summary judgment

evidence.

                                        B

     Our standard of review differs from our typical review of

summary judgment motions because of our limited jurisdiction to

review denials of motions for summary judgment based on qualified

immunity.10     We “consider only whether the district court erred in

assessing the legal significance of the conduct that the district

court     deemed    sufficiently    supported       for   purposes    of   summary

judgment.”11

     “The threshold inquiry a court must undertake in a qualified



     9
          Mersch v. City of Dallas, 207 F.3d 732, 735 (5th Cir. 2000).
     10
          Kinney v. Weaver, 367 F.3d 337, 347-48 (5th Cir. 2004) (en banc).

     11
          Id. at 348.

                                        7
immunity analysis is whether plaintiff’s allegations, if true,

establish     a    constitutional    violation.”12        If   the   allegations

establish a constitutional violation, the court next considers

whether the        defendants’    actions     violated   “clearly    established

statutory or constitutional rights of which a reasonable person

would have known.”13          If these two questions are answered in the

affirmative, the court must next determine “whether the record at

least gives rise to a genuine issue of material fact as to whether

the defendants actually engaged in the conduct that violated this

clearly established right.”14

     The Eighth Amendment requires that prison officials protect

prisoners from violence at the hands of their fellow prisoners.15

Prison officials are not, however, liable for all inmate-on-inmate

violence.16       A prison official is liable only if he is deliberately

indifferent       to    a   substantial   risk   of   serious   harm.17   To   be

deliberately indifferent, “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.”18                   In

     12
          Hope v. Pelzer, 536 U.S. 730, 736 (2002).

     13
          Id. at 739 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
     14
          Wallace v. Wellborn, 204 F.3d 165, 167 (5th Cir. 2000).
     15
          Farmer v. Brennan, 511 U.S. 825, 833-34 (1994).
     16
          Id. at 834.
     17
          Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003).

     18
          Farmer, 511 U.S. at 837.

                                          8
other words, the prison official must be subjectively aware of a

substantial risk of serious harm to the inmate.19                      The plaintiff,

however,        may    rely   on   circumstantial        evidence    indicating    that

because the risk was obvious, the official must have known of the

risk to the inmate.20

                                           III

     According to Defendants, the fact issues the Magistrate Judge

found to preclude summary judgment are immaterial, and taking

Rodriguez’s allegations as true, summary judgment was appropriate

for Lozano, Alvarado, Collins, and Mitchell because their alleged

conduct does not violate Rodriguez’s Eighth Amendment rights.

Defendants        further      assert     that    the     trial     court   improperly

considered       prisoner      affidavits       concerning    Vela’s    actions,    and

without these affidavits, summary judgment is appropriate for Vela.

                                            A

     The Magistrate Judge did not err in denying Officer Vela’s

summary judgment motion; Rodriguez’s allegations and evidence, if

true, properly allege an Eighth Amendment violation.                        Rodriguez

alleges that Officer Vela twice opened his cell door to let

Rodriguez’s           attackers    into   the    cell,    knowing    full   well   what

Rodriguez’s attackers intended to do, and that he did not call for

help or medical assistance despite his knowledge of the attack.



     19
          Adames, 331 F.3d at 512.

     20
          Id.

                                            9
      In support of his allegations against Officer Vela, and in

opposition to Defendants’ motion for summary judgment, Rodriguez

supplied affidavits from Juan Carlos Diaz and Derrick Johnson.

Diaz claims that he saw inmates from a different building talking

to Officer Vela in the control picket.           In addition, Diaz claims

that, about an hour later, he saw Rodriguez’s cell door open and

saw certain inmates dragging him inside the cell.               Diaz further

stated, “I looked at the officer in the picket and he saw me

looking at what was going on.       But he never did anything.”        Johnson

also claims that he “looked at the ‘picket’ and [the picket

officer] was looking up toward Rodriguez’s cell.”                Furthermore,

Johnson alleges that, when the inmates finished beating Rodriguez

the first time, the inmates left the door partially open, and

walked right by the picket officer to their cells.

      Defendants moved to strike Diaz’s and Johnson’s affidavits

from Rodriguez’s response because these affidavits had not been

formally provided to Defendants during discovery.             The Magistrate

Judge      denied   Defendants’   motion   without    substantive     comment.

Defendants argue that it was error for the Magistrate Judge to

refuse to strike Diaz’s and Johnson’s affidavits.21

      We review a trial court’s discovery-related decisions “under




      21
        Defendants, citing Mersch, argue that this evidence should not have been
considered by the Magistrate Judge because it was inadmissible. But the evidence
is not inadmissible like the evidence in Mersch; rather, the contention is that
it is excludable by the Magistrate Judge because of discovery violations.

                                      10
a deferential abuse of discretion standard.”22 This court will only

reverse a discovery ruling in “unusual and exceptional cases.”23

      Rule 37(b)(2) of the Federal Rules of Civil Procedure provides

that “[i]f a party . . . fails to obey an order to provide or

permit discovery, . . . the court in which the action is pending

may make such orders in regard to the failure as are just.”                  This

Rule affords the court broad discretion.24                   In exercising its

discretion, the court should consider factors such as “the reasons

why disclosure was not made, the prejudice to the opposing party,

the   feasibility       of   rectifying        that   prejudice   by   granting   a

continuance, and other relevant circumstances.”25

      On July 18, 2001, the Magistrate Judge issued a scheduling

order requiring the parties to disclose “[t]he name . . . of each

person likely to have information that bears significantly on any

claim or defense [and] a brief summary of the substance of the

information known by the person.”               Notwithstanding the Magistrate

Judge’s order, Rodriguez did not formally provide Diaz’s and

Johnson’s names or affidavits to Defendants during the discovery

period. Nonetheless, these affidavits were available to Defendants



      22
        Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 397-98 (5th
Cir. 2000).

      23
         Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569
(5th Cir. 1996) (brackets and quotation marks omitted).
      24
           See id.

      25
           United States v. Bentley, 875 F.2d 1114, 1118 (5th Cir. 1989).

                                          11
long before Rodriguez filed his reply to Defendants’ motion for

summary judgment.          Rodriguez submitted Diaz’s affidavit and a

statement from Johnson to the Magistrate Judge as part of his

motion for appointment of counsel, filed with the court on May 18,

2001.    In addition, Diaz’s and Johnson’s affidavits were included

in Rodriguez’s Motion for Continuance filed on May 14, 2002, which,

in addition to being filed with the court, was sent to Defendants’

counsel.

       Defendants were not prejudiced by Rodriguez’s failure to

provide the affidavits formally.                  Rodriguez did not file his

response to Defendants’ motion for summary judgment until September

2, 2002 - three and a half months after Defendants were provided

with    the   affidavits       in   Rodriguez’s      Motion     for    Continuance.

Defendants       had   ample   time   to   amend    their     motion   for    summary

judgment.     Thus, the Magistrate Judge did not abuse her discretion

in denying Defendants’ motion to strike Diaz’s and Johnson’s

affidavits.

       Officer Vela concedes that if the affidavits were properly

considered, genuine issues of material fact preclude his summary

judgment motion.        The Magistrate Judge did not err in denying his

motion.

                                           B

       Rodriguez alleged below and asserts on appeal that Warden

Lozano     and     Captain     Alvarado         failed   to    conduct       adequate



                                           12
investigation after the attack.            Rodriguez claims that Warden

Lozano took no action after the incident, which according to

Rodriguez would encourage more inmate assaults, and contends that

Alvarado also did nothing after he learned about the incident,

other than speaking to two inmates alleged to be part of the

attack.       Rodriguez, however, did not allege and has provided no

summary judgment evidence that Lozano or Alvarado acted or failed

to act with deliberate indifference to a substantial risk of

serious harm to him before the attack.26

      Taking Rodriguez’s allegations as true, Lozano and Alvarado

are entitled to qualified immunity because their conduct does not

violate clearly established statutory or constitutional rights.27

Even if true, the allegations would not establish that Lozano and

Alvarado were “aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and [that

they also drew] the inference.”28            The challenged conduct here

involves Lozano and Alvarado’s actions after the incident; as such,



      26
         Although sworn statements and verified complaints can be competent
summary judgment evidence, see Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir.
2003), most of Rodriguez’s allegations do not constitute competent summary
judgment evidence because they are not based on his personal knowledge. See
Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th Cir. 1998). Rodriguez admitted
that he had memory lapses after the attack and that he does not remember much of
what happened that night.
      27
         Hope, 536 U.S. at 736 (explaining a defendant is entitled to qualified
immunity if the defendant’s conduct did not violate “clearly established
statutory or constitutional rights of which a reasonable person would have
known”).

      28
           Farmer, 511 U.S. at 837.

                                      13
they cannot form the basis of a failure to protect claim under the

Eighth Amendment.29

      In addition, Lozano and Alvarado cannot be held vicariously

liable for the acts of the correctional officers, because “[u]nder

§ 1983, supervisory officials are not liable for the actions of

subordinates on any theory of vicarious liability.”30              Although a

supervisor not personally involved in an incident can be liable for

failure to train or supervise his subordinates, Rodriguez has not

alleged that Warden Lozano or Captain Alvarado failed to train or

supervise Officer Collins, Officer Mitchell, or Officer Vela.31

      The issues of fact found by the Magistrate Judge do not

preclude Lozano and Alvarado’s claim of qualified immunity because

the fact issues are immaterial.              The issues of fact are Lozano’s

and Alvarado’s “prior knowledge of Plaintiff’s gang activity,

threats      by   gang    members,    and     inspections,   maintenance    and

malfunctions of the cell door mechanisms and lights.”                 However,

since Rodriguez has not alleged that pervasive gang activity and

malfunctioning locks caused the incident here, this knowledge is

immaterial to whether Lozano and Alvarado acted with deliberate

indifference in this case. Thus, we reverse the Magistrate Judge’s


      29
        Id.; see also Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998)
(explaining that in the context of deliberate indifference, “a prisoner normally
must complain about a specific threat to a supervisory official in order to give
actual notice to that official”).
      30
           Thompson, 245 F.3d at 459 (quotation marks omitted).

      31
           Id.

                                        14
denial of Lozano and Alvarado’s motion for summary judgment.

                                       C

      Rodriguez alleged below and asserts on appeal that if Officers

Collins and Mitchell had performed their duties properly, they

would have located him sooner and prevented needless suffering.

This, however, is not enough to establish that Officers Collins and

Mitchell acted with deliberate indifference.32            Rodriguez does not

allege that Officers Collins and Mitchell could have or should have

prevented the attack or that they were aware of a risk of such an

attack.33      Rodriguez’s allegations do not establish that Officers

Collins and Mitchell were “aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and

[that they also drew] the inference.”34         Considering that Rodriguez

does not allege or present any summary judgment evidence that

Officers Collins and Mitchell acted with deliberate indifference,

the officers are entitled to summary judgment on the basis of

qualified immunity.35

      The genuine issues of fact identified by the Magistrate Judge


      32
         See Adames, 331 F.3d at 513 (“Even assuming (for the sake of argument)
that some officers were derelict in their duties, that evidence would not support
the verdict against the prison officials. [Plaintiff] has failed to show that,
prior to his attack, the prison officials were aware that any corrections
officers had neglected to follow the safety regulations.”).
      33
         Officers Collins and Mitchell, by contrast, provided affidavits that
they were not aware of the attack while it was going on and that they knew of no
risk to Rodriguez before the incident.
      34
           Farmer, 511 U.S. at 837.

      35
           Hope, 536 U.S. at 736.

                                       15
are no bar this result because they are immaterial.              The Magistrate

Judge found that genuine issues of material fact exist as to

Officers Collins’s and Mitchell’s “prior knowledge of Plaintiff’s

gang    activity,    threats     by   gang    members,     and    inspections,

maintenance and malfunctions of the cell door mechanisms and

lights.”     In addition, the Magistrate Judge found that genuine

issues of material fact exist as to “whether Defendants Collins and

Mitchell checked the cell door and had knowledge that the lock had

been manipulated.” Although these fact issues might be relevant to

failure-to-protect claims generally, they are not material to

Rodriguez’s      specific    failure-to-protect        claim.      The     issues

identified by the Magistrate Judge would be important if Rodriguez

had    alleged    that,     because   of    pervasive    gang    activity    and

malfunctioning      locks,     Officers      Collins     and    Mitchell    were

deliberately indifferent to the risk of an inmate jamming the cell

door of another inmate to later enter his cell and attack him.

That is not, however, Rodriguez’s theory.              Rodriguez alleges that

Officer Vela purposefully opened his cell door for Rodriguez’s

attackers.    Thus, Officer Collins’s and Officer Mitchell’s general

knowledge about gang activity and malfunctioning locks is not

material.

       The magistrate also found that a genuine issue of fact exists

as to “whether Defendants Collins and Mitchell failed to intervene

while the assault was taking place.”          This fact issue, however, is



                                       16
similarly immaterial to the resolution of Rodriguez’s allegation

that Collins and Mitchell failed to timely discover him after the

attack.   Rodriguez makes no allegation and presents no summary

judgment evidence that Collins and Mitchell knew of the threat and

could have intervened; by contrast, Rodriguez’s own complaint

alleges that (1) Collins and Mitchell discovered him at the usual

time for the officers to conduct cell-checks in that part of the

prison; (2) Vela repeatedly opened his cell door to aid the

attackers after Collins and Mitchell left the area to perform other

duties; (3) it is typical during “count time” to have significant

lapses of time between the roving officers checking cells; and (4)

Officer Vela was the only person who could have opened the cell

door and did so many times.      Since Rodriguez has not alleged or

presented summary judgment evidence that Officers Collins and

Mitchell could have or should have intervened during the attack,

this finding of fact is not material and is no bar to Collins and

Mitchell’s qualified immunity.

     Given that Rodriguez’s allegations, even if true, do not

allege conduct violating his Eighth Amendment rights and that the

genuine issues of fact identified by the Magistrate Judge are not

material to the resolution of Rodriguez’s claims, the Magistrate

Judge erred by denying Collins and Mitchell’s summary judgment

motion.

                                  IV



                                  17
      We AFFIRM the denial of Officer Vela’s motion for summary

judgment and REMAND for further proceedings. We REVERSE the denial

of   the   summary   judgment   motion    as   to   Warden   Lozano,   Captain

Alvarado, Officer Collins, and Officer Mitchell.




                                     18
