* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

June 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11112

Summary Calendar

MICHAEL RAY ARMSTRONG,

Plaintiff-Appellant,

versus

KEITH PRICE; WILLIAM E. WALKER; HERMAN WESTON; FRANK

POHLMEIER, also known as NFN Palimier; TED MOORE;

ERIC GUERRO; MARY HOLLIGAN; RACQUEL HASKINS; DORA 

SHIPP; BOBBY STUBBLEFIELD, Building Captain, 

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:02-CV-253

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Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Michael Ray Armstrong, a Texas prisoner (# 488799), appeals

the district court’s order granting the defendants-appellees’

motion for summary judgment, based on the qualified-immunity

doctrine, in this 42 U.S.C. § 1983 civil rights action, in which

Armstrong alleged that the defendants had violated his Eighth

Amendment rights by failing to protect from an assault by a

fellow inmate in April 2002. It is not disputed that the assault

left Armstrong with a fractured jaw and other injuries. 
No. 02-11112

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In his pro se complaint, Armstrong, who is white, alleged

that, on four separate occasions from December 2001 to the end of

March 2002, he asked defendant prison officials to place him in

protective custody (PC) because of threats made by correctional

officers and black inmates, who allegedly believed that Armstrong

was jeopardizing inappropriate personal and business

relationships between the officers and inmates. The defendants

moved for summary judgment, arguing that they were entitled to

qualified immunity. The district court granted the motion,

adopting the magistrate judge’s recommendation as well as making

finding and conclusion of its own. 

Armstrong has effectively abandoned claims against

defendants Captain Stubblefield and Wardens Walker and Price. 

See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d

744, 748 (5th Cir. 1987); FED. R. APP. P. 28(a)(9). 

We review de novo the grant a motion for summary judgment

predicated on qualified immunity. Cousin v. Small, 325 F.3d 627,

637 (5th Cir. 2003). Summary judgment is proper if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with any affidavits filed in support

of the motion, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law. FED. R. CIV. P. 56(c). The moving party

bears the burden of showing the district court that there is

an absence of evidence to support the nonmoving party’s case. 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 
No. 02-11112

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Government officials performing discretionary functions are 

protected from civil liability under the doctrine of qualified

immunity if their conduct violates no “clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Federal courts review claims of qualified immunity under

a two-step analysis. See Saucier v. Katz, 533 U.S. 194, 201

(2001). First, a court asks whether, “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged

show the officers’ conduct violated a constitutional right?” 

Id. “If the allegations do not establish the violation of a

constitutional right, the officer is entitled to qualified

immunity. . . . If the allegations make out a constitutional

violation, we must ask whether the right was clearly established

--that is, whether ‘it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.’” 

Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (quoting

Saucier, 533 U.S. at 201).

The Eighth Amendment protects prisoners from cruel and

unusual punishment. See Hudson v. McMillian, 503 U.S. 1, 5

(1992). “‘[P]rison officials have a duty . . . to protect

prisoners from violence at the hands of other prisoners.’”

Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004) (quoting

Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)). To succeed on a

failure-to-protect claim, “‘the inmate must show that he is

incarcerated under conditions posing a substantial risk of

serious harm’ and that the prison officials acted with
No. 02-11112

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** Guerrero’s name is rendered, apparently erroneously, as

“Guerro” in the complaint’s caption.

‘deliberate indifference’ to the inmate’s safety.” Id. (quoting

Farmer, 511 U.S. at 834). “An official is deliberately

indifferent when he ‘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.’” 

Id. (quoting Farmer, 511 U.S. at 837). 

Armstrong has failed to demonstrate that the district court

erred in concluding that the defendants were entitled to

qualified immunity. He has alleged that defendants Holligan,

Haskins, and Shipp were classification officers who, as

custodians of his letters and complaints regarding threats, were

responsible for investigating his requests for protection. 

Armstrong failed to show, however, that they, as supervisors,

were automatically charged with personal knowledge of the risks

Armstrong had written about or that they actually were required

to investigate those risks. See Evett v. DETNTFF, 330 F.3d 681,

689 (5th Cir. 2003). 

In connection with the December 27, 2001, UCC hearing held

by defendants Pohlmeier, Guerrero,** and Shipp, Armstrong failed

to establish that, given the rather vague information he had

provided them, it would be clear to a reasonable officer that

such information presented a substantial risk of serious harm. 

See Saucier, 533 U.S. at 201; Farmer, 511 U.S. at 834. Armstrong
No. 02-11112

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had made similar allegations earlier in December 2001, but at

that time he had explicitly denied that he was requesting PC.

With respect to Armstrong’s second request for PC in

February 2002, he did provide the names of several officials and

inmates who had either made or known about threats toward him,

but his specific allegations against defendants Moore and Haskins

were not sufficient to make clear that their failure to act in

those circumstances subjected Armstrong to a substantial risk of

serious harm. See Saucier, 533 U.S. at 201; Farmer, 511 U.S. at

834. Armstrong’s summary-judgment materials reflect that he told

Moore at that time that no officers had “actually or verbally

threatened his life.”

Armstrong has maintained that, in late February 2002, he

made a third request for PC, providing “5 more official names for

questioning.” The March 5, 2002, investigation form submitted by

Armstrong reflects that defendant Weston did refer these latest

allegations to subordinates, including defendant Guerrero, for

investigation. A March 8, 2002, inter-office communication from

Guerrero to a Major Curran reflected that Guerrero had

interviewed Armstrong and several correctional officials, that

Armstrong had asked Guerrero not to interview an inmate who knew

about threats against Armstrong, and that the officers had denied

Armstrong’s allegations. This evidence does not establish that

either defendant, Armstrong or Weston, knew of and disregarded an

excessive risk to inmate health or safety at that time. See

Farmer, 511 U.S. at 837.
No. 02-11112

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Finally, with respect to Armstrong’s fourth PC request, he

has alleged that in late March 2002, defendant Moore failed to

conduct interviews of officers and inmates who knew about threats

against him. The written materials submitted by Armstrong at

that time, however, contained no allegations that had not already

been investigated by correctional officials. Armstrong’s

summary-judgment materials reflected that Moore reported that, at

that time, Armstrong refused to give names of black offenders who

posed threats to him. Because Armstrong has failed to show that

it should have been clear to any of the defendants that his

conduct was unreasonable in the situation each defendant

confronted, see Saucier, 533 U.S. at 201, we affirm the district

court’s order granting summary judgment to the defendants.

Armstrong correctly contends that the amended-complaint

principles of FED. R. CIV. P. 15 should not preclude a district

court from considering evidentiary materials attached to a

plaintiff’s response to defendants’ original summary-judgment

motion, when the plaintiff has failed to re-attach those

materials to his later response to an amended summary-judgment

motion. The record, however, reflects that the court considered

all of Armstrong’s summary-judgment materials.

The district court did not abuse its discretion in failing

to allow Armstrong to conduct discovery in order to obtain prison

administrative policies. See King v. Dogan, 31 F.3d 344, 346

(5th Cir. 1994); Tarver v. City of Edna, 410 F.3d 745, 752 (5th

Cir. 2005).

AFFIRMED.