Case: 19-40470     Document: 00515538555         Page: 1      Date Filed: 08/24/2020




         United States Court of Appeals
              for the Fifth Circuit                                     United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         August 24, 2020
                                No. 19-40470                              Lyle W. Cayce
                                                                               Clerk

 Christopher Bryan Torres,

                                                           Plaintiff—Appellant,

                                     versus

 Brad Livingston; William Stephens; Kelvin Scott;
 Edgar Baker, Jr.; Todd Funai; Frances Sims;
 Jonathan Endsley,

                                                       Defendants—Appellees.


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                              No. 6:17-CV-196


 Before Smith, Willett, and Duncan, Circuit Judges.
 Jerry E. Smith, Circuit Judge:
        Christopher Torres sued a correctional officer and several staff
 members and administrators per 42 U.S.C. § 1983 (and state tort law) for
 allegedly failing to protect him from an attack by another inmate in violation
 of the Eighth Amendment. The defendants successfully moved to dismiss
 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
 The district court denied Torres’s motion to alter or amend the judgment
 per Federal Rule of Civil Procedure 59(e). We affirm.
Case: 19-40470        Document: 00515538555             Page: 2      Date Filed: 08/24/2020




                                      No. 19-40470

                                            I.
         Torres worked as an inmate janitor in an administrative segregation
 unit. During mealtimes in that unit, the floor officer—in this case, Jonathan
 Endsley—opens a row of seven inmates’ food tray slots in quick succession.
 Once the slots are open, the inmate janitor delivers each inmate a food tray.
 Inmates often request that officers pass through miscellaneous items, such as
 books, newspapers, and magazines. Usually, the officer directs an inmate
 janitor to fulfill those requests. After the food trays are distributed, the offi-
 cer closes the slots.
         While Endsley and Torres were delivering meals, Angel Sanchez, one
 of the inmates, requested that Endsley retrieve pictures from the floor out-
 side his cell. Endsley directed Torres to pick up the photos. Torres complied
 willingly, noting that Sanchez “appeared harmless and asked in the right
 tone.” When Torres reached to grab the pictures off the ground, however,
 Sanchez stabbed him on the right side of his neck. Torres claims that, as a
 result, he has breathing, speech, eating, and drinking problems, continually
 has to clear his throat, has a persistent cough, and gets headaches. He alleges
 that a neurologist has said that his medical complications are “lifelong” and
 “irreparable.”
         Torres contends that the district court erred in dismissing his § 1983
 claims. 1 We review the 12(b)(6) dismissal de novo. Jackson v. City of Hearne,
 959 F.3d 194, 200 (5th Cir. 2020). “To plead a constitutional claim under
 § 1983, [Torres] must allege that a state actor violated a constitutional right.”
 Id.

                                            A.
         Torres avers that Endsley’s alleged failure to protect his health and


         1
           Torres does not expressly challenge the dismissal without prejudice of his pen-
 dent state-law claims.




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                                  No. 19-40470


 safety violated the Eighth Amendment. “The Supreme Court has held that
 the treatment a prisoner receives in prison and the conditions under which
 he is confined are subject to scrutiny under the Eighth Amendment.” Cantu
 v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). Accordingly, “prison officials
 have a duty to protect prisoners from violence at the hands of other pris-
 oners.” Id. A prison official may be held liable under the Eighth Amendment
 only if he “ha[s] a sufficiently culpable state of mind, which, in prison-
 conditions cases, is one of ‘deliberate indifference’ to inmate health or
 safety.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
        “Deliberate indifference is an extremely high standard to meet. A
 prison official displays deliberate indifference only if he (1) knows that in-
 mates face a substantial risk of serious bodily harm and (2) disregards that
 risk by failing to take reasonable measures to abate it.” Taylor v. Stevens,
 946 F.3d 211, 221 (5th Cir. 2019). “Deliberate indifference cannot be in-
 ferred merely from a negligent or even a grossly negligent response to a sub-
 stantial risk of serious harm.” Williams v. Banks, 956 F.3d 808, 811 (5th Cir.
 2020) (brackets omitted).
        Torres does not offer any facts suggesting that Endsley knew of and
 disregarded a substantial risk to his health and safety. By all accounts, Ends-
 ley was unaware that Torres was in danger, and Torres does not allege that
 there was anything that would have caused Endsley to foresee that Sanchez
 would assault him. In fact, Torres remarked that Sanchez “appeared harm-
 less and asked in the right tone” to pick up the pictures. Although Torres
 alleges that inmates in administrative segregation have weapons and a history
 of attacking people, he provides no specific examples, nor does he point to
 any other case in which that was alleged. In sum, Torres failed to allege that
 Endsley was negligent, much less that he consciously disregarded any risk of




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                                          No. 19-40470


 serious harm. 2

                                                B.
         Torres also appeals the denial of his Rule 59(e) motion, which we
 review for abuse of discretion. Trevino v. City of Fort Worth, 944 F.3d 567,
 570 (5th Cir. 2019) (per curiam). “Under Rule 59(e), amending a judgment
 is appropriate (1) where there has been an intervening change in the control-
 ling law; (2) where the movant presents newly discovered evidence that was
 previously unavailable; or (3) to correct a manifest error of law or fact.”
 Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (per cur-
 iam). “A motion to reconsider based on an alleged discovery of new evi-
 dence should be granted only if (1) the facts discovered are of such a nature
 that they would probably change the outcome; (2) the facts alleged are actu-
 ally newly discovered and could not have been discovered earlier by proper
 diligence; and (3) the facts are not merely cumulative or impeaching.” Fer-
 raro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 534 (5th Cir. 2015).
         Torres moved to alter or amend the judgment based on the affidavit
 of a fellow inmate who claimed to have witnessed at least one food-slot attack
 a week, and often more than one a day, over the past fifteen years. Torres
 contended that, in light of the history of inmate food-slot attacks, the court
 should have concluded that the defendants were subjectively aware of the risk
 to Torres but failed to take reasonable measures. The court did not abuse its
 discretion in denying that motion. It reasonably found that the inmate’s
 claim to have witnessed roughly a thousand food-slot assaults was not credi-



         2
           Because Torres does not allege facts that amount to a constitutional violation, his
 claims of failure to train or supervise, against the other defendants, also necessarily fail. See
 Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013) (“All of [the plaintiff’s] inadequate
 supervision, failure to train, and policy, practice, or custom claims fail without an under-
 lying constitutional violation.”).




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                                 No. 19-40470


 ble and that even if it was, it did not demonstrate that the defendants were
 aware of a specific danger to Torres. All pending motions are denied as moot.
        AFFIRMED.




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