IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40418

Summary Calendar

KENNETH R. JOHNSON,

Plaintiff-Appellant

v.

RICK THALER; HEALTH MANAGER ANGELA SKINNER; OFFICER ADAMS,

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 dismissal of Johnson’s 42 U.S.C. § 1983 complaint. Johnson

also seeks authorization 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, driven by Officer

Adams, hit a deer. Following a hearing on the matter, the magistrate judge

United States Court of Appeals

Fifth Circuit

F I L E D

January 10, 2013

Lyle W. Cayce

Clerk

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.

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No. 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. The MJ further

determined that Adams was entitled to qualified 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 de novo. 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 error in the MJ’s

determination that Adams was entitled to qualified immunity.

“Qualified immunity protects 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. 2009) (internal quotation

marks and citation omitted). Evaluating qualified immunity is a two-step

process. First, we determine whether the plaintiff has alleged a violation of a

clearly established constitutional or statutory 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, which involves “determining whether the law was

sufficiently 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 confinement are

subject to scrutiny under the Eighth Amendment. See Woods v. Edwards, 51

F.3d 577, 581 (5th Cir. 1995). To establish an Eighth Amendment violation

based on the conditions of his confinement, a prisoner must satisfy both an

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objective component and a subjective component. Id. “First, he must show that

his confinement resulted in a deprivation that was ‘objectively, sufficiently

serious.’” Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (quoting

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 deliberate indifference. Farmer,

511 U.S. at 839-40. To establish deliberate indifference, the prisoner must show

that the prison official knew of and disregarded an excessive risk to inmate

health or safety. Id. at 837. That is, the prisoner must show both that (1) the

official was “aware of facts from which the inference could be drawn that a

substantial risk of serious harm 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 entitled 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 of the risk

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

other 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

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deer. See Farmer, 511 U.S. at 837. Johnson’s conclusory assertions are

insufficient to show an Eighth Amendment violation. See Duffie v. United

States, 600 F.3d 362, 371 (5th Cir. 2010). In the absence of a constitutional

violation, qualified immunity protects Adams from liability. See Siegert, 500

U.S. at 231-32. Johnson has failed to show that the district court erred in

granting summary judgment to Adams. The MJ’s judgment is therefore

AFFIRMED.

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