United States Court of Appeals

for the Fifth Circuit

No. 19-40470

Christopher Bryan Torres, 

Plaintiff—Appellant,

versus

Brad Livingston; William Stephens; Kelvin Scott; 

Edgar Baker, Jr.; Todd Funai; Frances Sims; 

Jonathan Endsley, 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

No. 6:17-CV-196

Before Smith, Willett, and Duncan, Circuit Judges. 

Jerry E. Smith, Circuit Judge:

Christopher Torres sued a correctional officer and several staff

members and administrators per 42 U.S.C. § 1983 (and state tort law) for 

allegedly failing to protect him from an attack by another inmate in violation 

of the Eighth Amendment. The defendants successfully moved to dismiss 

for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 

The district court denied Torres’s motion to alter or amend the judgment 

per Federal Rule of Civil Procedure 59(e). We affirm.

United States Court of Appeals

Fifth Circuit

FILED

August 24, 2020

Lyle W. Cayce

Clerk

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I.

Torres worked as an inmate janitor in an administrative segregation 

unit. During mealtimes in that unit, the floor officer—in this case, Jonathan 

Endsley—opens a row of seven inmates’ food tray slots in quick succession. 

Once the slots are open, the inmate janitor delivers each inmate a food tray. 

Inmates often request that officers pass through miscellaneous items, such as 

books, newspapers, and magazines. Usually, the officer directs an inmate 

janitor to fulfill those requests. After the food trays are distributed, the officer closes the slots. 

While Endsley and Torres were delivering meals, Angel Sanchez, one 

of the inmates, requested that Endsley retrieve pictures from the floor outside his cell. Endsley directed Torres to pick up the photos. Torres complied

willingly, noting that Sanchez “appeared harmless and asked in the right 

tone.” When Torres reached to grab the pictures off the ground, however, 

Sanchez stabbed him on the right side of his neck. Torres claims that, as a 

result, he has breathing, speech, eating, and drinking problems, continually 

has to clear his throat, has a persistent cough, and gets headaches. He alleges 

that a neurologist has said that his medical complications are “lifelong” and 

“irreparable.”

Torres contends that the district court erred in dismissing his § 1983 

claims.1

 We review the 12(b)(6) dismissal de novo. Jackson v. City of Hearne, 

959 F.3d 194, 200 (5th Cir. 2020). “To plead a constitutional claim under 

§ 1983, [Torres] must allege that a state actor violated a constitutional right.” 

Id.

A.

Torres avers that Endsley’s alleged failure to protect his health and 

1 Torres does not expressly challenge the dismissal without prejudice of his pendent state-law claims.

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safety violated the Eighth Amendment. “The Supreme Court has held that 

the treatment a prisoner receives in prison and the conditions under which 

he is confined are subject to scrutiny under the Eighth Amendment.” Cantu 

v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). Accordingly, “prison officials 

have a duty to protect prisoners from violence at the hands of other prisoners.” Id. A prison official may be held liable under the Eighth Amendment 

only if he “ha[s] a sufficiently culpable state of mind, which, in prisonconditions cases, is one of ‘deliberate indifference’ to inmate health or 

safety.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

“Deliberate indifference is an extremely high standard to meet. A 

prison official displays deliberate indifference only if he (1) knows that inmates face a substantial risk of serious bodily harm and (2) disregards that 

risk by failing to take reasonable measures to abate it.” Taylor v. Stevens, 

946 F.3d 211, 221 (5th Cir. 2019). “Deliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm.” Williams v. Banks, 956 F.3d 808, 811 (5th Cir. 

2020) (brackets omitted).

Torres does not offer any facts suggesting that Endsley knew of and 

disregarded a substantial risk to his health and safety. By all accounts, Endsley was unaware that Torres was in danger, and Torres does not allege that 

there was anything that would have caused Endsley to foresee that Sanchez 

would assault him. In fact, Torres remarked that Sanchez “appeared harmless and asked in the right tone” to pick up the pictures. Although Torres 

alleges that inmates in administrative segregation have weapons and a history 

of attacking people, he provides no specific examples, nor does he point to 

any other case in which that was alleged. In sum, Torres failed to allege that 

Endsley was negligent, much less that he consciously disregarded any risk of 

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serious harm.2

B.

Torres also appeals the denial of his Rule 59(e) motion, which we 

review for abuse of discretion. Trevino v. City of Fort Worth, 944 F.3d 567, 

570 (5th Cir. 2019) (per curiam). “Under Rule 59(e), amending a judgment 

is appropriate (1) where there has been an intervening change in the controlling law; (2) where the movant presents newly discovered evidence that was 

previously unavailable; or (3) to correct a manifest error of law or fact.” 

Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (per curiam). “A motion to reconsider based on an alleged discovery of new evidence should be granted only if (1) the facts discovered are of such a nature 

that they would probably change the outcome; (2) the facts alleged are actually newly discovered and could not have been discovered earlier by proper 

diligence; and (3) the facts are not merely cumulative or impeaching.” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 534 (5th Cir. 2015).

Torres moved to alter or amend the judgment based on the affidavit 

of a fellow inmate who claimed to have witnessed at least one food-slot attack 

a week, and often more than one a day, over the past fifteen years. Torres 

contended that, in light of the history of inmate food-slot attacks, the court 

should have concluded that the defendants were subjectively aware of the risk 

to Torres but failed to take reasonable measures. The court did not abuse its 

discretion in denying that motion. It reasonably found that the inmate’s 

claim to have witnessed roughly a thousand food-slot assaults was not credi2 Because Torres does not allege facts that amount to a constitutional violation, his

claims of failure to train or supervise, against the other defendants, also necessarily fail. See 

Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013) (“All of [the plaintiff’s] inadequate 

supervision, failure to train, and policy, practice, or custom claims fail without an underlying constitutional violation.”).

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ble and that even if it was, it did not demonstrate that the defendants were 

aware of a specific danger to Torres. All pending motions are denied as moot.

AFFIRMED.

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