     Case: 12-60933      Document: 00512589026         Page: 1    Date Filed: 04/08/2014




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

                                                                                FILED
                                                                              April 8, 2014
                                      No. 12-60933
                                                                             Lyle W. Cayce
                                                                                  Clerk
SAMUEL T. WILLIAMS, Individually; KOURTNEY BYNUM, Individually;
DONALD REED, SR., Individually and on Behalf of the Wrongful Death
Beneficiaries of Donald Reed, Jr.; JUDY THOMPSON, Individually and on
Behalf of the Wrongful Death Beneficiaries of Donald Reed, Jr.,

                                                 Plaintiffs – Appellees
v.

SHARON HAMPTON,

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:08-CV-163


Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Sharon Hampton, a Mississippi state correctional officer, appeals the
judgment of the district court holding her liable in a § 1983 action for the death
of one inmate and the injuries of two other inmates.                 A jury found that
Hampton had violated the Eighth Amendment rights of the inmates by acting
with deliberate indifference to a substantial risk of serious harm. Hampton


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 12-60933       Document: 00512589026         Page: 2    Date Filed: 04/08/2014



                                      No. 12-60933
argues that the evidence was insufficient to show that she acted with
deliberate indifference or that her actions caused the harm to the inmates. She
also argues that she is entitled to qualified immunity.                For the following
reasons, we AFFIRM the judgment of the district court.
                                   BACKGROUND
       This case arises out of an inmate-on-inmate attack that occurred on July
25, 2007, in Unit 32 of the Mississippi State Penitentiary in Parchman,
Mississippi. Although Unit 32 has since been closed, at that time it contained
the prison’s maximum security unit and death row.                   Among the inmates
housed in Unit 32 were gang members, inmates considered too violent to be in
the general population, inmates who had committed serious rule violations,
and mentally ill inmates. Unit 32 inmates were given one hour of outdoor
exercise time each day, known as “yard call,” which took place on the yard in a
series of individual pens. 1 During that hour, each inmate would be placed
alone in a locked 180-square-foot outdoor pen surrounded by a metal fence.
       Although the testimony introduced at trial is unclear and contradictory
with respect to many of the details of the events of July 25, 2007, the facts, as
construed in the light most favorable to the verdict, are as follows: At some
time in the morning of July 25, 2007, Hampton was guarding the Building B
yard in Unit 32 while inmates were in the pens for yard call. Hampton was
carrying a block gun, which, unbeknownst to her, was not loaded. 2 She was
also carrying the keys to the pens and two extra block gun rounds. Samuel
Williams, an inmate who was in one of the pens for yard call, demanded that



       1 There were multiple buildings in Unit 32. Building B, where the incident giving rise
to this case occurred, had 28 associated pens.

       2  A block gun is a 37mm single-shot, break-open gun that shoots a large rubber slug.
It is the only type of firearm carried by guards inside the prison.

                                             2
    Case: 12-60933      Document: 00512589026        Page: 3    Date Filed: 04/08/2014



                                    No. 12-60933
Hampton bring him a money withdrawal slip and stated that he would not
leave the yard until he received it. Hampton asked Lieutenant Taylor to
relieve her on the yard so that she could go inside to get the paperwork.
Hampton gave Taylor the keys and the block gun, but did not give him the
extra rounds.
      After Hampton left the yard, two inmates, Lester Nash and Derrick
Hayes, managed to break out of their pens and acquire weapons. 3 Nash and
Hayes ran toward Taylor with weapons in hand. Taylor, who was sitting on a
milk crate, jumped up, dropping his keys in the process. Taylor pointed the
block gun at Nash and Hayes and told them not to move, which caused them
to stop. However, for reasons that are not clear, Taylor began to back away
and eventually ran into the nearby building. Nash picked up the keys and
used them to let five other inmates out of their pens. The seven escaped
inmates, who were armed with shanks and with a heavy piece of iron, then
began to attack three other inmates. They unlocked the pens of Donald Reed,
Jr., Kourtney Bynum, and Samuel Williams, and repeatedly stabbed and beat
the three men. Reed died from his injuries, and Bynum and Williams both
sustained severe injuries requiring extended medical treatment. Hampton
was suspended for ten days without pay for failing to examine the block gun to
ensure that it was loaded and for failing to turn over the extra rounds to Taylor.
These actions were found to constitute a Group 3 violation, i.e., a rule violation
involving a threat to human life or safety.
      Bynum, Williams, and Reed’s parents (as wrongful death beneficiaries)
brought an action under 42 U.S.C. § 1983, alleging violations of the Eighth
Amendment. The plaintiffs sued Christopher Epps, the Commissioner of the


      3 Nash and Hayes both had shanks, i.e., knife-like weapons made from any available
materials.

                                           3
    Case: 12-60933     Document: 00512589026     Page: 4   Date Filed: 04/08/2014



                                  No. 12-60933
Mississippi Department of Corrections (“MDOC”); Taylor; Hampton; and four
other correctional officers (George Davenport, Dennis Profit, Milton McGee,
and Marvin Johnson).       Taylor, Profit, and McGee, who were no longer
employed by the MDOC, defaulted. The claims against Epps and Johnson were
voluntarily dismissed by the plaintiffs.       The remaining claims against
Hampton and Davenport were tried before a jury. The district court granted a
directed verdict in favor of Davenport at the close of evidence, but denied
Hampton’s motion for a directed verdict. The jury found Hampton liable and
awarded $25,000 to Bynum; $25,000 to Williams; and $100,000 to Reed’s
parents. After rejecting Hampton’s post-trial motion for judgment as a matter
of law, the district court entered judgment (presumably jointly and severally)
against Hampton and the three defaulted defendants for a total of $150,000.
      Hampton now appeals, arguing the district court erred in denying her
motion for judgment as a matter of law. She argues that her actions did not
amount to deliberate indifference and therefore did not violate the Eighth
Amendment; that her actions did not cause the plaintiffs’ injuries; and that she
is entitled to qualified immunity.
                                 DISCUSSION
      A district court’s denial of a motion for judgment as a matter of law is
reviewed de novo. Thomas v. Tex. Dept. of Criminal Justice, 220 F.3d 389, 392
(5th Cir. 2000). “A post-judgment motion for judgment as a matter of law
should only be granted when ‘the facts and inferences point so strongly in favor
of the movant that a rational jury could not reach a contrary verdict.’” Id.
(quoting Waymire v. Harris County, 86 F.3d 424, 427 (5th Cir. 1996)). “We
accord great deference to the jury’s verdict when evaluating the sufficiency of
the evidence, viewing all the evidence and drawing all reasonable inferences
in the light most favorable to the verdict.” Id. (citation omitted).


                                        4
     Case: 12-60933   Document: 00512589026     Page: 5   Date Filed: 04/08/2014



                                 No. 12-60933
I.    DELIBERATE INDIFFERENCE
      “[P]rison officials have a duty . . . to protect prisoners from violence at
the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994)
(quotation omitted). However, “[p]rison officials can be held liable for their
failure to protect an inmate only when they are deliberately indifferent to a
substantial risk of serious harm.” Adames v. Perez, 331 F.3d 508, 512 (5th Cir.
2003).   “Deliberate indifference” means that the official “knows of and
disregards 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.” Farmer, 511
U.S. at 837. “Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, . . . and a factfinder
may conclude that a prison official knew of a substantial risk from the very
fact that the risk was obvious.” Id. at 842.
      Hampton first argues that her failure to provide Taylor with ammunition
for the block gun is “simple negligence” that cannot constitute deliberate
indifference. However, Hampton’s testimony at trial undercuts her argument
that this failure was accidental. Hampton stated:
            . . . It was my mistake that I didn’t check the gun. And
      when – the reason – I handed the gun over to Lieutenant Taylor.
      The reason I came off the yard, because Samuel Williams said
      that he wasn’t going to come off the yard until he got a money
      withdrawal slip from the case manager.
            And by me giving Lieutenant Taylor the gun, I had the two
      bullets in my pocket, because I thought that I was going to run in
      the case manager’s office, which would take about a minute or
      two, and come back out.
Hampton further stated: “I handed Lieutenant Taylor the gun and the keys,
and thinking that I’m going to come back out in less than a minute or two, I

                                       5
    Case: 12-60933    Document: 00512589026     Page: 6   Date Filed: 04/08/2014



                                 No. 12-60933
took the rounds with me.” Similarly, Hampton testified that she did not check
the block gun for ammunition because she assumed it was loaded.                A
reasonable jury could infer from this language that Hampton’s actions were
deliberate rather than accidental or involuntary.
      Hampton next argues that no evidence was presented showing that she
was actually aware of a substantial risk of serious harm to inmates. Although
no direct evidence of Hampton’s mental state was presented, there was no
shortage of evidence of the conditions in Unit 32. Commissioner Epps testified
that Unit 32 was “a dangerous place” at the time of the incident. He further
testified that Unit 32 housed “core members” of rival gangs, making violence
essentially inevitable. He testified that rival gangs fought each other “all the
time,” and that inmates would fashion weapons out of nearly any available
materials. He explained that although Unit 32 was built with an open outdoor
exercise area, individual pens had to be installed because inmates “kept
fighting and stabbing each other.” He also explained that officers “always
[had] to be on [their] Ps and Qs” because some inmates were able to escape
from even double-locked handcuffs. Regarding the attack on Reed, Williams,
and Bynum, Commissioner Epps opined that “the incident was going to happen
either on the pens or somewhere else.”
      Ricky Scott, a Security Threat Group Coordinator for the MDOC,
testified that Reed, Williams, and Bynum had been attacked pursuant to a
“war” between rival gangs. Scott testified that inmates would “try[] to beat the
security whichever way they can” in order to attack other inmates. Lawrence
Haefeli, an expert witness called by the plaintiffs, explained many of the
factors that gave rise to a particularly dangerous situation in Unit 32. Finally,
Hampton was found guilty of a Group 3 violation, which reflected the belief of
prison officials that her actions had threatened human life or safety.


                                       6
     Case: 12-60933      Document: 00512589026        Page: 7    Date Filed: 04/08/2014



                                     No. 12-60933
      From these facts, a rational jury could infer that Hampton, who had been
working as a correctional officer at Parchman for approximately eight years,
was aware of a high risk of inmate-on-inmate violence in Unit 32. A rational
jury could also infer that Hampton was aware that leaving Lieutenant Taylor
alone to guard the exercise pens without any block gun ammunition (and
therefore without any effective way to resist escaped inmates) presented a
substantial risk of serious harm. 4 Viewed in the light most favorable to the
verdict, the evidence showed that Unit 32 housed the most dangerous inmates
in the Mississippi prison system, some of whom were both highly motivated to
attack other inmates and determined to thwart the prison’s security measures.
In such a situation, where escape is a constant threat, backup measures for
stopping escaped inmates are particularly important.
      Hampton argues that there was “no evidence of a ‘longstanding and
pervasive’ risk of harm at the single-person exercise pens where this attack
occurred.” Such specificity is not required, however. If Unit 32 inmates are
generally at risk of attack by fellow inmates, this risk would seem to be just as
present in the outdoor exercise pens. Hampton identifies no reason why the
threat would be reduced in the outdoor exercise pens, and the evidence
presented at trial suggests, if anything, the opposite.




      4 The dissent notes the absence of any evidence showing that Hampton knew the block
gun was unloaded and suggests that she was merely negligent in handing over the block gun
without verifying that it was loaded. However, the evidence suggests that she consciously
disregarded the risk that the gun might not be loaded, which is better characterized as
recklessness. In any event, even if Hampton was merely negligent in failing to check the
block gun for ammunition, her testimony clearly shows that her failure to give Taylor the
extra rounds was deliberate. Therefore, even in the best case Hampton knew that she was
leaving Taylor with at most one block gun round to guard numerous inmates. This scenario
would also support the jury’s determination that Hampton was deliberately indifferent to a
substantial risk of serious harm.
                                            7
      Case: 12-60933   Document: 00512589026    Page: 8   Date Filed: 04/08/2014



                                 No. 12-60933
II.    CAUSATION
       Hampton also argues that, even assuming she was deliberately
indifferent to a substantial risk of serious harm, her actions did not cause
Reed’s death or Williams’ and Bynum’s injuries. Hampton contends that “even
if [she] had given [Lieutenant] Taylor a loaded block gun and an unlimited
supply of ammunition, this attack would have still occurred as [Lieutenant]
Taylor dropped the keys to the exercise pens and ran inside the prison.”
Accordingly, Hampton argues that “Taylor’s failure to secure the keys to the
exercise pens was the superseding cause” of the harm to the plaintiffs.
       As Hampton notes, there is no direct evidence showing that Taylor ever
attempted to fire the block gun or realized that the gun was unloaded.
However, based on the evidence presented, the jury could have rationally
inferred that but for Hampton’s failings, the attack would have been thwarted.
Although Taylor initially pointed his gun at the two escaped inmates and
succeeded in stopping their advance, he ultimately chose to retreat for reasons
that are unknown. He may have attempted to fire the gun and discovered that
it was unloaded. Alternately, he may have assumed the gun was loaded but
realized that he had no extra ammunition, leaving him with at most one round
to stop two armed inmates.        While there are of course other possible
explanations for Taylor’s actions, both of the explanations above are plausible.
Furthermore, assuming it was lack of ammunition that caused Taylor to flee
in fear and panic, it would hardly be surprising for this same fear and panic to
prevent him from picking up the dropped keys before running away. Causation
is an “intensely factual” question, Morris v. Dearborne, 181 F.3d 657, 673 (5th
Cir. 1999) (quotation omitted), and we cannot say that the jury’s finding on
this issue was irrational or entirely without evidentiary support.




                                       8
       Case: 12-60933   Document: 00512589026     Page: 9   Date Filed: 04/08/2014



                                   No. 12-60933
III.    QUALIFIED IMMUNITY
        After the plaintiffs rested at trial, Hampton moved for a directed verdict,
arguing that her actions constituted negligence at worst and did not rise to the
level of deliberate indifference.      However, Hampton made no argument
relating to qualified immunity. At the close of evidence, Hampton renewed her
motion for a directed verdict on the same grounds, and again did not mention
qualified immunity.      The jury was instructed on the defense of qualified
immunity, and was told that Hampton is not liable if “her conduct was
objectively reasonable in light of the legal rules clearly established at the time
of the incident in issue.” After the jury returned its verdict, Hampton moved
for judgment as a matter of law, arguing that her actions “amount[ed] to no
more than simple negligence,” that she was not subjectively aware of any
substantial risk of serious harm, and that her actions did not cause the harm
to the plaintiffs. Once again, she made no argument relating to qualified
immunity. Accordingly, because Hampton did not raise the issue of qualified
immunity before the district court, we review for plain error.
        To demonstrate plain error, an appellant must show an error that is clear
or obvious and that affected her substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If the appellant makes such a showing, this court
has the discretion to remedy the error, but should do so only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
        In Hampton’s appellant brief, she argues that it would not have been
clear to a reasonable officer that failing to give Lieutenant Taylor ammunition
for the block gun was a violation of federal law. Specifically, she contends that
“[s]uch is a violation of MDOC protocol, but is not clearly ‘unlawful’ to a
reasonable officer.” Hampton correctly notes that “[v]iolations of non-federal
laws cannot for a basis for liability under § 1983.”        However, Hampton’s
                                         9
    Case: 12-60933    Document: 00512589026     Page: 10   Date Filed: 04/08/2014



                                 No. 12-60933
liability here is not based on a violation of MDOC protocol – it is based on a
violation of the plaintiffs’ federal constitutional rights under the Eighth
Amendment. In Hampton’s reply brief, she argues for the first time that her
actions were “objectively reasonable” in light of clearly established law at the
time. However, Hampton does not cite even a single case setting forth the
relevant legal standard for failure to protect an inmate from attack by other
inmates. In short, Hampton has not shown that the district court committed
any clear or obvious error in denying judgment as a matter of law based on
qualified immunity.
                               CONCLUSION
      For the reasons explained above, we AFFIRM the judgment of the
district court.




                                      10
    Case: 12-60933        Document: 00512589026          Page: 11     Date Filed: 04/08/2014



                                       No. 12-60933
PRISCILLA R. OWEN, Circuit Judge, dissenting:
       I respectfully dissent. The majority opinion incorrectly applies the law
governing claims that a prison official was deliberately indifferent to the safety
of inmates. The majority opinion also supports its conclusion that there was
evidence of deliberate indifference with non-existent “facts” that the Plaintiffs
did not even allege, must less prove.
                                               I
       With great respect, the majority opinion does not adhere to the Supreme
Court’s and our precedent regarding an inmate’s claim that a prison official
violated the Eighth Amendment by failing to protect a prisoner from harm
inflicted by other inmates. An official’s knowledge of the risk of harm posed by
a history of inmate-on-inmate violence at this prison does not, standing alone,
constitute evidence from which a jury may infer deliberate indifference under
the facts of this case. This is not a case in which an inmate is claiming that he
should not have been placed in the general population of violent offenders. 1
The allegations before us revolve around an unloaded block gun. There must
be evidence that the official had subjective knowledge of the risk of harm
presented by her own acts and omissions regarding the block gun. There was
no such evidence, and consequently, the majority opinion improperly equates
negligent acts and omissions with deliberate indifference.                     The majority
opinion’s reasoning permits liability to be imposed on a corrections officer
whenever that individual knows that he or she is working in a prison that has
a history of inmate-on-inmate violence and whose negligence contributes to a
situation in which inmates are attacked by other prisoners.


       1  Cf. Farmer v. Brennan, 511 U.S. 825, 849 (1994) (remanding for further factual
development when a transsexual asserted that each defendant had knowledge that the prison
“was and is, a violent institution with a history of sexual assault, stabbings, etc., [and that]
each defendant showed reckless disregard for [his] safety by designating [him] to [the]
institution knowing that [he] would be sexually assaulted”).
                                                   11
   Case: 12-60933       Document: 00512589026        Page: 12   Date Filed: 04/08/2014



                                      No. 12-60933
      Additionally, the majority opinion’s reasoning has no evidentiary
support. The opinion says that a “jury could also infer that Hampton was
aware that leaving Lieutenant Taylor [Hampton’s supervisor] alone to guard
the exercise pens without any block gun ammunition . . . presented a
substantial risk of serious harm.” 2 However, there was no evidence—none
whatsoever—that Hampton knew that the block gun was unloaded when she
left Taylor alone for what she thought would be a minute or two. The majority
opinion correctly acknowledges earlier, in its recitation of the factual
background of this case, that Hampton was unaware that she was carrying an
unloaded block gun 3 and that Hampton testified that she did not check the
block gun for ammunition because she assumed that it was loaded. 4 Her
supervisor, Lieutenant Taylor, had been on yard duty, in possession of the
block gun, for quite some time before Hampton reported for duty at the prison.
Taylor gave the block gun to Hampton when she relieved him of yard duty
while they were standing in the yard itself. She assumed that the block gun
was loaded, and thereafter, she was on duty in the prison yard with an
unloaded block gun before she gave the gun back to Taylor while she retrieved
a money withdrawal slip that one of the plaintiffs in this case asked her to get
for him. There is no evidence that Hampton was subjectively aware that the
block gun was unloaded or from which the jury could infer that Hampton was
subjectively aware that the gun was unloaded. Indeed, the Plaintiffs have not
argued that Hampton knew the block gun was unloaded. The only arguments
that the Plaintiffs make in their briefing before this court are that
          • “Hampton inexplicably failed to ascertain that she was holding an
            empty block gun throughout her shift on yard call.”



      2 Ante at 7 (emphasis added).
      3 Ante at 2.
      4 Ante at 5.

                                             12
    Case: 12-60933      Document: 00512589026          Page: 13     Date Filed: 04/08/2014



                                     No. 12-60933
          • “Further, when she decided to leave the yard on a ‘quick’ errand,
            she failed to check the block gun she turned over to the Defendant
            Taylor, thus handing him an unloaded weapon, and failed to give
            him any ammunition for the block gun.”

          • “[T]he Plaintiffs’ expert in corrections unequivocally concluded
            that the Defendant Hampton’s failure to check the block gun, her
            relinquishing of an empty block gun to the Defendant Taylor and
            her taking the ammunition for the block gun with her violated
            correctional standards and created a substantial risk of serious
            harm amounting to deliberate indifference.”

      There is absolutely no evidence from which a jury could reasonably infer
that Hampton knew that she had left Taylor on yard duty with an unloaded
block gun. Hampton’s failure to check the block gun and her failure to return
to Taylor the two rounds of ammunition that he had given her earlier in the
day were negligent acts or omissions, but they do not, as a matter of law, rise
to the level of deliberate indifference.
                                             I
      In order for an inmate to prevail on an Eighth Amendment failure-to-
protect claim, he must demonstrate that “he was incarcerated under conditions
posing a substantial risk of serious harm and that prison officials were
deliberately indifferent to his need for protection.” 5 This is an “extremely high
standard to meet.” 6      The prisoner must demonstrate that the officer was
“aware of facts from which the inference could be drawn that a substantial risk
of serious harm exist[ed],” that the officer in fact drew such an inference, and
that the officer nevertheless disregarded the risk. 7                     This standard
“describes a state of mind more blameworthy than negligence . . . [but] is
satisfied by something less than acts or omissions for the very purpose of


      5 Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999).
      6 Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001).
      7 Farmer v. Brennan, 511 U.S. 825, 837 (1994).

                                                 13
   Case: 12-60933       Document: 00512589026         Page: 14    Date Filed: 04/08/2014



                                     No. 12-60933
causing harm or with knowledge that harm will result.” 8 The Supreme Court
has defined this standard as equivalent to recklessness, in which “a person
disregards a risk of harm of which he is aware.” 9               An inmate can prove
awareness of the risk with circumstantial evidence that “the risk to inmate
health or safety was so longstanding and pervasive that the official must have
been aware of this danger.” 10 However, the fact that there had been a history
of inmate-on-inmate violence in Unit 32 and that Hampton was aware of this
danger does not translate into evidence that she knew she had left Lieutenant
Taylor with an unloaded block gun or that she acted recklessly in failing to
ascertain that the gun was unloaded. The Supreme Court has admonished
that “an official’s failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, cannot . . . be
condemned as the infliction of punishment.” 11
                                            II
      Lieutenant Taylor was Hampton’s supervisor. He was on yard duty
before Hampton reported for work at the prison on the day in question and was
in possession of the block gun. Hampton testified, without contradiction, that
Taylor should have checked the block gun to ensure that it was loaded before
the first inmate was allowed to leave the indoor area and was brought to an
individual outdoor pen or cage. The block gun was capable of holding one round
of ammunition, which consisted of a rubber slug. There were three rounds of
rubber slugs for the block gun that the guard on duty would have. When
Hampton relieved Taylor of yard duty, Taylor handed the block gun to her and
gave her two rounds of the rubber ammunition. Hampton testified that this



      8 Id. at 835.
      9 Id. at 836-37.
      10 Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003).
      11 Farmer, 511 U.S. at 838.

                                                 14
    Case: 12-60933   Document: 00512589026      Page: 15   Date Filed: 04/08/2014



                                 No. 12-60933
caused her to assume that there was at least one round of ammunition in the
block gun. She remained on yard duty until the time for the inmates to be
taken back indoors had come, not knowing that the block gun was unloaded.
One of the Plaintiffs, Samuel Williams, told Hampton that he would not leave
his outdoor pen until Hampton brought him a money withdrawal slip from the
case manager. Hampton left the yard to obtain this document, and Lieutenant
Taylor reassumed yard duty. As Hampton left the yard, she handed the block
gun to Taylor and thought that she would be inside no longer than a minute or
two to get a withdrawal slip. She did not return to Taylor the two rounds of
ammunition that he had given to her earlier in the day. The escape of two
inmates from their individual outdoor pens occurred just after Hampton went
inside.
      When the two escaped inmates ran toward Taylor, he threw the block
gun at them, then retreated inside. In the process of doing so, he dropped the
keys to the outside pens onto the ground. Two inmates who were confined in
their respective pens and who feared that they would be attacked by the
escaped inmates begged Taylor to pick up the keys before he left the yard, but
Taylor did not do so. The two inmates who had escaped retrieved the keys and
released five other inmates from their respective pens. These seven escaped
inmates attacked other inmates, stabbing and beating them, using the keys
that Taylor had dropped to open the pens. One prisoner was killed; others
were seriously injured. The surviving inmates, joined by the family of the
murdered inmate, sued various prison officials, including Hampton. At the
conclusion of a trial, a jury found that Hampton was deliberately indifferent to
the safety of the inmates who were attacked.
      As already discussed, there is no evidence that Hampton knew that the
block gun was unloaded.      The majority opinion concludes that even so,
Hampton acted with deliberation because she knew when she left the yard that
                                         15
   Case: 12-60933         Document: 00512589026    Page: 16   Date Filed: 04/08/2014



                                    No. 12-60933
she had two of the three rubber slugs in her pocket and did not return them to
Taylor. But knowledge that she had two of the rubber slugs, presumably
leaving Taylor with only one, does not rise to recklessness, which can constitute
deliberate indifference, particularly given the facts of this case. Hampton’s act
or omission in taking two slugs with her may have been negligence, but it is
not deliberate indifference to the risk that inmates will attack other prisoners.
The evidence at trial was that a guard should not even check to see if the block
gun was loaded if the guard was given the gun while on the yard because “if
you open that block gun up and you mess around and pop out a projectile, you
make yourself vulnerable as it relates to the inmates.” Further, there is no
evidence that Hampton consciously perceived that there was a substantial risk
that Taylor would be rushed by two escaped prisoners and would be placed in
a more precarious position by having only one round of ammunition, since, had
he had the two rounds of ammunition that Hampton had with her, opening up
the block gun to reload after each shot fired would be time-consuming and
perhaps impossible under the circumstances Taylor faced.             The majority
opinion demands near-perfect foresight from prison guards like Hampton. It
also assumes that had Taylor just had the two rounds of ammunition that
Hampton took back inside with her, Taylor could have ascertained that the
block gun was unloaded as the escaped prisoners charged him, loaded it, fired
a shot, or perhaps reloaded and fired two shots, and stopped the escaped
inmates. This, the majority opinion says, is the risk of which Hampton was
consciously aware and to which Hampton was deliberately indifferent.


      The Supreme Court explicated the basis for an official’s liability when an
inmate harms another prisoner in Farmer v. Brennan. 12 Liability may be


      12   511 U.S. 825 (1994).
                                            16
    Case: 12-60933     Document: 00512589026     Page: 17    Date Filed: 04/08/2014



                                  No. 12-60933
imposed when “[a] prison official’s ‘deliberate indifference’ to a substantial risk
of serious harm to an inmate violates the Eighth Amendment.” 13 The Court
expressly “reject[ed] [the] invitation to adopt an objective test for deliberate
indifference.” 14 The Court “define[d] the term ‘deliberate indifference’ . . . by
requiring a showing that the official was subjectively aware of the risk.” 15 That
required showing is lacking in this case. There is no evidence that Hampton
was subjectively aware of the risk that her conduct posed for the inmates who
were attacked.
      The Supreme Court explained in Farmer v. Brennan that “a prison
official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and
disregards 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.” 16 The
Plaintiffs failed to adduce evidence that satisfies this requirement. They have
only produced evidence that Hampton failed to alleviate a significant risk that
she should have perceived but did not. This falls squarely within a range of
conduct that the Supreme Court has said will not suffice to prove deliberate
indifference: “an official’s failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation, cannot under
our cases be condemned as the infliction of punishment.” 17
      Hampton admitted to making mistakes. The majority opinion points out
that she was reprimanded for these mistakes.            She was found to have
committed a Group 3 violation, which indicates that her actions had


      13 Id. at 828.
      14 Id. at 837.
      15 Id. at 829.
      16 Id. at 837.
      17 Id. at 838.

                                           17
    Case: 12-60933        Document: 00512589026          Page: 18      Date Filed: 04/08/2014



                                        No. 12-60933
threatened human life and safety, and she was suspended for ten days. This
is not evidence that she was deliberately indifferent. First, a violation of prison
policy “is insufficient by itself to support an argument for deliberate
indifference.” 18 Second, although her actions may have contributed to the
endangerment of human life and safety, and an inmate was killed and others
were injured that day, that is not the test.
       Hampton’s actions and omissions do not constitute deliberate
indifference.     No reasonable jury could have concluded from the evidence
presented at trial that Hampton consciously disregarded the risk of inmate-on-
inmate harm when she relinquished yard duty to her superior officer,
Lieutenant Taylor. There were steps Hampton should have taken, and she
admitted at trial that she should have taken them. But § 1983 claims for
damages against prison officials must be made of sterner stuff. 19 Admissions
of negligence will not suffice.                Hampton was entitled to judgment
notwithstanding the verdict.




       18 Longoria v. Texas, 473 F.3d 586, 593 n.9 (5th Cir. 2006).
       19 Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind more
blameworthy than negligence.”); Adames v. Perez, 331 F.3d 508, 514 (5th Cir. 2003)
(“[N]egligence is insufficient to support a finding of liability.”). See also Davidson v. Cannon,
474 U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327, 329-30 (1986); Hare v. City of
Corinth, Miss., 74 F.3d 633, 648 (5th Cir. 1996).
                                                  18
