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

                                                 FILED
                                                                          October 28, 2009
                                       No. 08-10952
                                                                       Charles R. Fulbruge III
                                                                               Clerk
RUBEN PEREZ,

                                                   Plaintiff–Appellant,

v.

SHERIFF DEE ANDERSON; CAPTAIN C ECKERT; CAPTAIN NFN MEYER,

                                                   Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-623


Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ruben Perez, Texas prisoner # 490335, appeals from the district court’s
dismissal of his 42 U.S.C. § 1983 action as frivolous and for failure to state a
claim, pursuant to 28 U.S.C. §§ 1915(e) and 1915A. We affirm in part and
vacate and remand in part.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10952

                                               I
      Perez was held as a pretrial detainee at the Tarrant County Jail.
According to Perez, he testified in a murder trial against a member of the Aryan
Brotherhood of Texas (ABT).             Perez was then placed in the general jail
population and, subsequently, was brutally attacked by a member of the ABT.
Perez was then placed in administrative segregation for his safety.
      Perez filed suit in the Northern District of Texas claiming that the
defendants failed to protect him adequately from other prisoners, that prison
officials failed to provide him with adequate medical care, and that his
segregation denied him privileges available to detainees and prisoners in the
general population.         The district court first required Perez to amend his
complaint, advising him that he must allege facts specifying the personal
involvement of each defendant. After Perez submitted an amended complaint,
the district court dismissed the case as frivolous and for failure to state a claim,
pursuant to 28 U.S.C. §§ 1915(e) and 1915A. Perez timely appealed.


                                              II
      A district court may dismiss as frivolous the complaint of a prisoner
proceeding in forma pauperis if it lacks an arguable basis in law or fact.1 This
court reviews the dismissal of a complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) for abuse of discretion and the dismissal of a complaint under
28 U.S.C. § 1915A de novo.2




      1
          Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (per curiam).
      2
          Id.

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                                       No. 08-10952

                                             III
                                              A
      Perez contends that the district court erred by dismissing his claims that
the Tarrant County jail officials were indifferent to his safety because they
placed him in detention with known gang members.
      “[P]rison officials have a duty . . . to protect prisoners from violence at the
hands of other prisoners.”3 For a claim based on failure to prevent harm, the
prisoner must show that “he [was] incarcerated under conditions posing a
substantial risk of serious harm” and that prison officials acted with deliberate
indifference toward his health or safety.4 Deliberate indifference requires a
showing that “the official [knew] of and disregard[ed] 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.” 5 However, “a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.” 6 For
example, when a plaintiff presents “evidence showing that a substantial risk of
inmate attacks was longstanding, pervasive, well-documented, or expressly
noted by prison officials in the past” and evidence suggesting that the
defendant–official was exposed to this information, the evidence “could be
sufficient to permit a trier of fact to find that the defendant–official had actual
knowledge of the risk.”7




      3
        Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks and citation
omitted).
      4
          Id. at 834.
      5
          Id. at 837.
      6
          Id. at 842.
      7
          Id. at 842-43 (internal quotation marks and citation omitted).

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                                        No. 08-10952

       Perez has failed to show that the officials knew of an excessive risk to
Perez’s health and safety. Perez does not claim that the prison officials knew
that he had testified against an ABT member. Nor does Perez claim that any of
the ABT members in the general jail population had committed violent crimes
or shown a propensity for violence so as to put the jail officials on notice that
these individual ABT members posed a substantial risk to all other inmates.
Instead, Perez makes a broad claim that the defendants “failed to appropriately
classify and house all persons in jail.” According to Perez, allowing “any such
group of inmates known to be violent; as in gang members known to the public
and other institutions as serious threats to the health and safety of others,” to
remain in the general jail population “constitutes deliberate indifference to
[Perez’s] civil rights.”
       Even though the prison officials may have known that at least one of
Perez’s attackers was an ABT member, Perez does not claim that a “substantial
risk of inmate attacks was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past, [or that] the circumstances
suggest that the [jail officials] being sued had been exposed to information
concerning the risk.” 8        In fact, Perez relies on an alleged statement by A.
Almendarez, the “jails’ [sic] gang intelligence officer,” that the prison officials
“didn’t see the ABT as a gang problem for the jail.” Because Perez has failed to
allege that the jail officials knew that there was a substantial risk that Perez
would be attacked by ABT members, Perez has failed to state a claim as to
whether the defendants were deliberately indifferent to his safety.9




       8
           Id. at 842 (internal quotation marks and citation omitted).
       9
        See Hernandez v. Tex. Dep’t. of Protective & Regulatory Servs., 380 F.3d 872, 882 (5th
Cir. 2004) (“Here, for the [plaintiffs] to overcome the deliberate indifference standard they
must demonstrate that the [defendants] knew of the underlying facts indicating a sufficiently
substantial danger and that the [defendants] did not believe that the risks to which the facts
gave rise [were] insubstantial or nonexistent.”).

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                                       No. 08-10952

                                              B
      Perez next argues that members of the jail’s medical staff unreasonably
failed to address his medical needs after being attacked by other prisoners. To
state a claim for impairment of health, Perez must show a “serious medical need
and the prison officials’ deliberate indifference to it.” 10
      Perez alleges that he never received “adequate treatment” for the injuries
he sustained during the attack. Although he does not specify his injuries, other
than to say they are “serious,” he alleges that they were incurred when he was
“severely beaten and repeatedly slammed into the concrete floor” and that he
suffered “excruciating pain” as a result. Perez alleges that he and his attorney
made his pain known to jail officials, but that despite the fact that he
“continuously begged for treatment,” he did not receive pain relief or x-rays until
several months after the attack. He contends that the extent of his injuries was
discovered only after he was transferred to the custody of another prison where
he was x-rayed and “found to be injured and suffering.”
      Perez’s allegations suggest that jail officials knew about his persistent
pain yet delayed treatment by a physician for a substantial period. He alleged
in his amended complaint that Dr. Byrd and Nurse Edwards “continually denied
and neglected Perez’s serious medical needs until finally they could not deny the
plaintiff Perez did indeed require medical treatment and real pain relief.” Perez
has stated a deliberate-indifference claim as to the alleged failure of the
defendants to address Perez’s medical needs. Therefore, the dismissal of this
claim is vacated, and the claim is remanded for further development.


                                              C
      Perez’s final contention is that he was placed in solitary confinement
without due process. “This court has repeatedly affirmed that ‘[p]rison officials


      10
           Hernandez v. Valasquez, 522 F.3d 556, 561 (5th Cir. 2008).

                                              5
                                            No. 08-10952

should be accorded the widest possible deference’ in classifying prisoners’
custodial status as necessary ‘to maintain security and preserve internal
order.’” 11 “And in the specific context of administrative lockdown, we have
clearly      held   that    absent    extraordinary        circumstances,        administrative
segregation as such, being an incident to the ordinary life as a prisoner, will
never be a ground for a constitutional claim.”12
       Perez’s own allegations indicate that he was placed in administrative
segregation “[b]ecause he was in fear for his life and further attacks . . . .”
Perez’s physical safety was a legitimate governmental objective, and his
placement in solitary confinement, without more, did not violate Perez’s due
process rights.13 Accordingly, the district court did not err by dismissing Perez’s
solitary-confinement claim for failure to state a claim.
                                        *        *         *
       AFFIRMED in part, VACATED and REMANDED in part.




       11
         Id. at 562 (quoting McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990) and
Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003)).
       12
            Id. (internal quotation marks and citations omitted).
       13
          See Bell v. Wolfish, 441 U.S. 520, 539 (1979) (“[I]f a particular condition or restriction
of pretrial detention is reasonably related to a legitimate governmental objective, it does not,
without more, amount to “punishment.”).

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