* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-10808

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PERRY LEE HAMMONDS,

Plaintiff-Appellant,

VERSUS

GLEN SMITH,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(2:95-CV-269)

_________________________

April 6, 1999

Before REAVLEY, POLITZ, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Perry Lee Hammonds, a Texas inmate, sued his warden, Glen

Smith, under 42 U.S.C. § 1983 for Smith’s purported deliberate

indifference toward Hammonds's safety. We affirm the summary

judgment entered in Smith's favor.

I.

Hammonds was an inmate serving time at the Coffield Unit of
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the Texas Department of Criminal Justice. Because of his

assistance to the correctional officers in ferreting out illegal

drug and alcohol use, Hammonds was transferred to the Clements

facility for safety reasons on June 8, 1995.

Hammonds quickly began complaining of threats and attacks by

other Clements Unit inmates. He told officials that several

inmates from the Coffield Unit were being kept in the Clements Unit

alongside him and that word had spread among the Clements inmates

that he was a “snitch.” He made several requests to be put into

protective custody, transfer, or safekeeping. 

Initially, Clements Unit officials told Hammonds to “tough it

out,” but after Hammonds had filed a formal emergency status

grievance, he was interviewed by prison officials and put into

temporary protective lockup on June 22, 1995. He provided

officials with details regarding some of the alleged threats and

assaults he had suffered, including the nicknames of his alleged

assailants. Purportedly unable to substantiate Hammonds’s

allegations, prison officials returned Hammonds to the general

prison population four days later.

After further claims of threats and assaults, Hammonds filed

a second emergency status grievance on July 4, 1995, and was again

placed in protective lockup on July 6. Following two

investigations by two different prison officials, Hammonds was told

that his complaint had been resolved and was led to believe that he

was going to be kept in permanent safekeeping status. Still

“scared and unsure,” he filed a follow-up inquiry to his status on
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July 30, to which he was told that he was “housed in transient

status until the Bureau of Classification approves [his] transfer

to another unit.”

On August 7, a hearing was conducted into Hammonds’s situation

by the Unit Classification Committee (“UCC”). Again finding

Hammonds’s allegations unsubstantiated, the UCC recommended that he

be returned to the general prison population; that occurred on

August 14. Smith, a member of the UCC panel, claims that he is

unable to recall the particular recommendation he made regarding

Hammonds’s status but has stated with certainty that he would have

made a recommendation only if the other two panel members had

disagreed with one another.

Hammonds asserts that, on returning to the general prison

population, he again was assaulted. His request for help was

answered by an ambiguous letter from Acting Warden Ellenberg. 

II.

Hammonds sued on October 26, 1995. An evidentiary hearing was

held on November 29 in which the district court ordered Hammonds to

supplement his complaint and provide Clements Unit officials with

additional information. Hammonds did so and was placed in

temporary protective lockup immediately thereafter. 

On December 14, a UCC hearing was held to look into Hammonds’s

protective classification. Smith was not a member of this UCC

panel, however, and Ellenberg served in his place. The UCC

recommended releasing Hammonds to the general prison population,
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and he was so released on January 10, 1996. Immediately

thereafter, he again began alleging a variety of assaults. On May

5, 1996, August 15, 1996, September 11, 1996, and March 11, 1997,

Hammonds’s situation was reviewed by the UCC, which each time

declined to remove him from the general prison population.

Both sides moved for summary judgment. Hammonds contended

that Smith had evinced deliberate indifference to his need for

protection. Smith contends both that Hammonds failed to adduce any

evidence of deliberate indifference and that Smith enjoys qualified

immunity. Finding no issue of material fact regarding deliberate

indifference, the district court granted summary judgment for Smith

on this ground.

III.

The issue is whether the summary judgment record can

reasonably support a finding of deliberate indifference on the part

of Smith toward Hammonds’s safety. We review this matter de novo

and apply FED. R. CIV. P. 56(c) in the same manner as did the

district court. See Melton v. Teachers Ins. & Annuity Ass’n of

Am., 114 F.3d 557, 559 (5th Cir. 1997). Thus, we must affirm if

there is no genuine issue of material fact and Smith is entitled to

judgment as a matter of law. See Celotex Corp. v. Catrett,

477 U.S. 317 (1986).

A.

The Eighth Amendment’s prohibition of cruel and unusual
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punishment affords prisoners protection against injury at the hands

of other inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994);

Johnston v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986). So,

prison officials “have a duty . . . to protect prisoners from

violence at the hands of other prisoners.” Farmer, 511 U.S. at 833

(citation omitted). To the extent that prisoners suffer

“sufficiently serious” harms, and to the extent that prison

officials display deliberately indifference toward their well-being

and safety, these officials can be held personally liable for

violating constitutional rights. Id. at 828, 834. The state does

not contest that Hammonds’s alleged harms are “sufficiently

serious,” and so our inquiry is limited to examining the

“deliberate indifference” requirement.

B.

As explained in Farmer, deliberate indifference ”describes a

state of mind more blameworthy than negligence” but less

blameworthy than “acts or omissions for the very purpose of causing

harm.” Id. at 835. Deliberate indifference can most approximately

be equated with “recklessness.” Id. at 836.

We hold . . . that a prison official cannot be

found liable under the Eight 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.

Id. at 837.
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C.

Although Hammonds points to evidence tending to show that

Smith was “aware of facts from which the inference could be drawn

that a substantial risk of serious harm [to Hammonds] exist[ed],”

he did not put forth any evidence tending to show that Smith

actually “[drew] the inference.” Such subjective knowledge of risk

is essential to hold a prison official liable under a theory of

deliberate indifference. See Farmer, 511 U.S. at 837. In fact,

the undisputed record strongly suggests that Smith, like the

several other prison officials who handled Hammonds’s case, not

only took Hammonds’s charges seriously, but also refused him

protective custody only after investigation that convinced him of

the untruthfulness of Hammonds’s allegations. 

Clements Unit officials, including Smith, reviewed Hammonds’s

complaints several times. The UCC convened on multiple occasions

to investigate these matters and placed Hammonds into protective

custody while at least two of these investigations proceeded. At

the conclusion of each investigation, the UCC found Hammonds’s

allegations to be unsubstantiated. This included an investigation

conducted by at least one UCC panel on which Smith did not serve.

Medical examinations of Hammonds’s injuries were likewise

inconclusive, and Hammonds’s answers to the UCC’s questions were

found to be vague and unhelpful. 

Thus, at the end of each of its inquiries, the UCC concluded

that Hammonds should not be afforded protective custody. Absent

evidence of bad faith or malfeasance, which Hammonds has not
7

demonstrated, the only reasonable inference is that Smith properly

discharged his duties as warden and at no time recklessly subjected

Hammonds to substantial risk of harm. A fortiori, the district

court was correct in finding no deliberate indifference as a matter

of law.

III.

Hammonds also challenges the denial of his FED. R. CIV. P. 59

motion, on the ground that Smith’s purported failure to comply with

the court’s March 26, 1997, discovery order prejudiced him.

Whether to grant a rule 59 motion is a matter within the discretion

of the district court. Martinez v. Johnson, 104 F.3d 769, 771 (5th

Cir. 1997). The court gave three reasons for denying rule 59

relief: (1) Incomplete disclosure did not prejudice Hammonds,

because he already possessed copies (albeit unclear ones) of the

documents he was requesting; (2) Hammonds had indicated in an

exhibit to his May 16, 1997, motion for summary judgment that he

had received the additional discovery in question; and (3) Hammonds

waived his discovery objections by filing a response to Smith's

motion for summary judgment that made no mention of the purported

lack of discovery.

Hammonds has demonstrated that the district court most likely

erred in coming to its second and third conclusions. Regarding the

second, although the exhibit in question (exhibit “A”) does mention

that Hammonds had received some additional discovery, it goes on to

explain (in the very next sentence) that the supplemental discovery
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ordered on March 26 has not been completely provided. Regarding

the third, Hammonds did indeed reiterate his discovery concerns in

his response to Smith’s motion for summary judgment. The court has

apparently confused Hammonds’s response to Smith’s motion for

summary judgment with Hammonds’s reply to Smith’s response to

Hammonds’s motion for summary judgment. The latter document did

not contain a reiteration of Hammonds’s discovery concerns, nor did

it need to.

Nonetheless, the district court’s first findingSSthat

nonreceipt of the additional discovery could not prejudice

HammondsSSis a sufficient, independent ground for denying

Hammonds’s rule 59 motion. The court found that Smith had produced

the requested documents, and the March 26 order merely instructed

him to produce a second set of the same because of certain

illegible documents contained in the first. The court also noted

Smith’s claim that the illegibility was not the result of

reproduction, but rather inherent in the original documents. The

determination that any purported violation of the March 26

discovery order would not be prejudicial is a matter firmly within

the court’s discretion: The decision regarded discovery and was

made within the context of a rule 59 motion. 

AFFIRMED.