### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40418 Summary Calendar

KENNETH R. JOHNSON, Plaintiff-Appellant

v. RI C K T HAL E R ; H EALT H MANAG E R AN G E LA S KI NN E R ; O F FI C E R ADA M S , Defendant-Appellee

Appeal from the United States District Court for the Southern District of Texas USDC No. 6:10-CV-25

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Kenneth R. Johnson appeals the grant of summary judgment to defendant John Adams and dismissa l o f J o hnson’s 42 U.S.C. § 1983 complaint. Johnson also s e e k s a uthorization to file a supplemental brief. As staff counsel has considered the brief, his motion to file a supplemental brief is granted. Johnson filed suit against Adams, Rick Thaler, and Angela Skinner after he was injured when a prison van in which he was riding, dr iv e n b y O fficer Adams, hit a deer. Fol l o w i n g a h e aring on the matter, the magistrate judge U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary10 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-40418 Document: 00512109056 Page: 1 Date Filed: 01/10/2013No. 12-40418

(MJ), ruling with the consent of the parties, dismissed Johnson’s claims against Thaler and Skinner for failure to state a claim. Johnson then filed a motion for summary judgment, and Adams filed a cross motion. In granting Adams’s cross motion, the MJ determined that Johnson failed to exhaust his administrative remedies with the Texas Department of Correctional Justice. T h e M J further determined that Adams was entitled to qu a l ified immunity because Johnson failed to show that the officer knew of and deliberately disregarded an excessive risk to inmate safety. We review the MJ’s grant of summary judgment d e n o vo. See Xtreme Lashes, LLC v. Xtended Beauty, Inc. , 576 F.3d 221, 226 (5th Cir. 2009). Whether

or not Johnson’s prison grievances were sufficiently clear to reasonably indicate the nature of Johnson’s claims and thus exhaust them, see Johnson v. Johnson , 385 F.3d 503, 518 (5th Cir. 2004), Johnson has shown no e r r o r i n the MJ’s determination that Adams was entitled to qualified immunity. “Qualified immunity protec t s government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Lytle

v. Bexar County, Tex. , 560 F.3d 404, 409 (5th Cir

. 2 009) (internal quotation marks and citation omitted). Evaluating qualified i m m u n i ty is a two-step process. First, we determine whether the pla i n t i f f has alleged a violation of a clearly established constitutional or s t a t utory right. See Siegert v. Gilley , 500 U.S. 226, 231-32 (1991). If we find that there was a constitutional violation, we

move to the second step, wh i c h involves “determining whether the law was suff i c i e n t l y clear that a reasonable officer would have known that his conduct violated the constitution.” Lytle , 560 F.3d at 410. The treatment of prisoners and the conditions of their conf i n e m e nt are

s ubj e c t to scrutiny under the Eighth Amendment. See Woods v. Edwards , 5 1 F.3d 577, 581 (5th Cir. 1995). T o e s t ab l i sh an Eighth Amendment violation based on the conditions of his confinement, a prisoner must satisfy both an 2 Case: 12-40418 Document: 00512109056 Page: 2 Date Filed: 01/10/2013No. 12-40418

objective component and a subjective component. Id. “First, he must show that his confinement resulted in a deprivation that w a s ‘ o bjectively, sufficiently serious.’” Hernandez v. Velasquez , 522 F.3d 556, 560 (5th Cir. 2008) ( q u o t ing Farmer v. Brennan , 511 U.S. 825, 834 (1994)). Second, regarding the subjective component, the Supreme Court has adopted “subjective recklessness as used in the criminal law,” as the appropriate test for deliber a t e indifference. Farmer , 511 U.S. at 839-40. To establish deliberate indifference, the prisoner must show that the pris o n o f

ficial knew of and disregarded an excessive risk to inmate health or safety. Id. at 837. That is, th e prisoner must show both that (1) the official was “aware of facts from which the inference could b e drawn that a substantial risk of se r i o u s h arm exists” and (2) the official actually drew the inference. Id. “Deliberate indifference is an extremely high standard to meet.” Brewster v. Dretke , 587 F.3d 764, 770 (5th Cir. 2009) (internal quotation marks and citation omitted). The MJ determined that Adams was enti t l e d to qualified immunity because Johnson failed to show a constitutional violation, specifically, that the officer knew of and deliberately disregarded an excessive risk to inmate safety. Johnson argues that the evidence shows that Adams was aware o f th e r isk because the other officer warned him about the deer. Johnson further contends that Adams’s own statement that he never swerves to avoid a deer when moving at a high rate of speed because the vehicle may flip shows that Adams was both “speeding and intentionally hit the deer.” Further, Johnson contends that the

o t h e r officer admitted warning Adams about the deer. Johnson avers conclusorily that Adams acted willfully and wantonly. At most, Johnson has shown that Adams should have been aware of a substantial risk, but not that he was, in fact, subjectively aware. At the hearing, Johnson alleged that the officer was speeding, driving recklessly, and “possibly sleeping.” The allegations failed to show that Adams knew of and intentionally disregarded a substantial risk to Johnson’s safety in the accident involving the
3 Case: 12-40418 Document: 00512109056 Page: 3 Date Filed: 01/10/2013No. 12-40418

deer. See F

a rmer , 511 U.S. at 837. Johnson’s conclusory assertions are insufficient to show an Eighth Amendment vi o l a tion. See Duffie v. United States , 600 F.3d 362, 371 (5th Cir. 2010). In the absence of a consti t u t ional violation, qualified immunity p r o t e c ts Adams from liability. See Siegert , 500 U.S. at 231-32. Johnson has failed to sh o w t h a t the district court erred in granting summary judgment to Adams. The MJ’s judgment is th erefore AFFIRMED.

4 Case: 12-40418 Document: 00512109056 Page: 4 Date Filed: 01/10/2013