     Case: 18-10255       Document: 00515110655         Page: 1    Date Filed: 09/09/2019




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

                                    No. 18-10255                                 FILED
                                  Summary Calendar                       September 9, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk
ERIC CRUZ,

               Plaintiff – Appellant,

v.

OFFICER DOMINGO CERVANTEZ,

               Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 5:16-CV-4


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       The July 24, 2019 opinion filed in this case is WITHDRAWN, and the
following is substituted in its place.
       Eric Cruz, proceeding pro se and in forma pauperis, sued the Lubbock
County Detention Center and Domingo Cervantez, a correctional officer at the




       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                      No. 18-10255
facility, under 42 U.S.C. § 1983, alleging deliberate indifference to Cruz’s need
for protection from a cellmate.
       Cruz and his cellmate fought in their cell at two different times on June
13, 2015. Cruz suffered only minor injuries after the first fight. After the
second fight, however, Cruz suffered more serious injuries. Cruz alleged that
Cervantez did not intervene in either fight and ignored Cruz’s request to be
moved to a different cell. Cervantez moved for summary judgment, arguing:
(1) that Cruz told Cervantez that the first fight was only a minor verbal
argument and that the argument had been fully resolved; (2) that the second
fight was a result of Cruz’s failed attempt at exacting a revenge on his cellmate;
and (3) that while Cruz and his cellmate were fighting for the second time,
Cervantez could not see into their cell to see that they were fighting. The
district court granted summary judgment in Cervantez’s favor.                          Cruz
appealed. 1
       We review a grant of summary judgment de novo. K.P. v. LeBlanc, 729
F.3d 427, 435 (5th Cir. 2013).          Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The
facts are to be construed in Cruz’s favor. See K.P., 729 F.3d at 435. A prison
official acts with deliberate indifference only if he subjectively “knows of and



       1After the district court entered judgment and Cruz filed a notice to appeal, Cruz
moved for leave to file a second amended complaint, seeking to name an additional defendant.
A notice to appeal does not become effective until the entry of an order disposing of post-
judgment motions. Burt v. Ware, 14 F.3d 256, 258 (5th Cir. 1994). In Bodin v. Gulf Oil Corp.,
we construed a motion to amend a complaint as a post-judgment motion because the proposed
amended complaint effectively questioned the correctness of the district court’s judgment.
877 F.2d 438, 439–40 (5th Cir. 1989). Here, we do not construe Cruz’s motion to file a second
amended complaint as a post-judgment motion that renders his notice of appeal ineffective,
because Cruz does not seek to question the correctness of the district court’s summary
judgment through the amended complaint. Cruz simply requests to add another defendant.
This request remains pending before the district court.
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                                 No. 18-10255
disregards an excessive risk to inmate health or safety.” Farmer v. Brennan,
511 U.S. 825, 837 (1994). “[T]he 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.” Id.
      Having reviewed the summary judgment evidence, including the video
footage from the day in question, we hold that a genuine issue of material fact
exists as to whether Cervantez acted with deliberate indifference to Cruz’s
need for protection from his cellmate. Cervantez submitted video footage of
the prison pod in which Cruz was housed. At various points in the video, Cruz
and his cellmate are seen fighting through the window of their cell door. Based
on this footage, a reasonable jury could conclude that Cervantez—who is also
seen in the video—could see into Cruz’s cell and observe that Cruz and his
cellmate were fighting, but nevertheless ignored the fight. See Scott v. Harris,
550 U.S. 372, 380–81 (2007) (concluding that courts should view the facts in
the light depicted by the videotape in the record). In addition, Cruz presented
evidence that he requested to be moved to another cell prior to the fight,
indicating that he feared for his safety and communicated that fear to
Cervantez. Taken together, this evidence creates a fact issue as to whether
Cervantez knew that Cruz’s cellmate posed an excessive risk of harm to Cruz
and disregarded that risk.     Because the district court erred in granting
summary judgment in Cervantez’s favor, we REVERSE and REMAND.
      We DENY AS MOOT Cruz’s motions to supplement the record on appeal,
for reconsideration of the clerk’s order denying his motion to file a reply brief
out of time, and for appointment of counsel. Cruz may direct any renewed
request for counsel to the district court on remand. In considering any renewed
motion by Cruz, the district court should take into account Cruz’s prior
discovery requests and Cervantez’s opposition to those requests. See Moore v.
Mabus, 976 F.2d 268, 272 (5th Cir. 1992) (listing considerations for the district
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court in deciding whether to appoint counsel); see also Delaughter v. Woodall,
909 F.3d 130, 141 (5th Cir. 2018).




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