F I L E D

United States Court of Appeals

Tenth Circuit

APR 29 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HERIBERTO VERDECIA,

Plaintiff - Appellee,

v.

OFFICER ADAMS, U.S.P., 

Florence, CO; D. PRUYNE, Officer,

U.S.P., Florence, CO; UNITED

STATES OF AMERICA;

Defendants,

COLLADO, Lieutenant, U.S.P.,

Florence, CO; MR. FELZ, S.I.S.,

U.S.P., Florence, CO,

Defendants - Appellants.

No. 01 - 1130

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 98-B-2535)

John R. Mann of Kennedy & Christopher, Denver, Colorado, (Frank R. Kennedy

with him on the brief) for Defendants-Appellants.

Antony Mark Noble of Perkins Coie, Denver, Colorado, (Eric R. Jonsen and Paula

M. Ray of Jonsen & Ray, Broomfield, Colorado; Virginia M. Creighton, Denver,

Colorado, on the brief) for Plaintiff-Appellee.
*

 The Honorable Claire V. Eagan, United States District Judge for the

Northern District of Oklahoma, sitting by designation.

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Before KELLY and O’BRIEN, Circuit Judges, and EAGAN, District Judge.*

EAGAN, District Judge.

Heriberto Verdecia filed this action asserting claims against defendants

Reuben Collado and Edward Felz, alleging that his rights under the Fifth, Eighth

and Fourteenth Amendments were violated when the defendants, acting with

deliberate indifference to a substantial risk of harm to plaintiff, placed him in a

cell with gang members who assaulted him because of his Cuban nationality. The

district court referred the defendants’ motion for summary judgment to the

magistrate judge. The magistrate judge recommended that the summary judgment

motion be denied on the ground that the plaintiff had presented sufficient

evidence to create a genuine issue of material fact as to whether defendants

Collado and Felz acted with deliberate indifference to a substantial risk of harm

to the plaintiff, and the magistrate judge found that the defendants failed to

demonstrate their entitlement to qualified immunity. The district court adopted

the magistrate judge’s report and recommendation and denied the defendants’

motion for summary judgment.

Defendants Collado and Felz filed an interlocutory appeal challenging the
1

 Juan Rodriguez and Roberto Rodriguez are unrelated, and Roberto

Rodriguez is himself Cuban.

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district court’s denial of summary judgment and the magistrate judge’s finding

that the defendants were not entitled to qualified immunity. Because this Court

finds that the defendants were entitled to qualified immunity, the judgment of the

district court is reversed.

I.

Heriberto Verdecia is a Cuban male currently in federal detention in

Talledega, Alabama. Prior to his transfer to Alabama, Verdecia was placed in the

United States Prison in Florence, Colorado (“USP-Florence”). Defendants Lt.

Edward Felz and Lt. Reuben Collado are employed as Special Investigative

Agents by the Bureau of Prisons at USP-Florence. Their responsibilities were to

investigate all criminal activity at the facility.

On July 28, 1998, Verdecia was removed from the general population at

USP-Florence and was placed in the Special Housing Unit. Verdecia was placed

in a cell in the Special Housing Unit with two other inmates, Juan Rodriguez and

Roberto Rodriguez. Both Juan Rodriguez and Roberto Rodriguez were members

of a gang known as the Latin Kings.1

 Verdecia alleges that on July 30, 1998, he

spoke to Collado and asked him to get him out of his cell in the Special Housing

Unit. On the following day, Verdecia gave his case manager a transfer form
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directed to the attention of Felz, which indicated that Verdecia feared an attack

from his cell mates. However, there is no evidence that Felz received the transfer

form before Verdecia was attacked. On August 4, 1998, Verdecia was attacked

with a razor blade by his two cell mates. As a result of the assault, Verdecia was

hospitalized and received 110 stitches in his back.

In July 1998, before Verdecia was placed in the Special Housing Unit, a

prisoner of Cuban descent and another prisoner who was a member of the Latin

Kings were involved in an altercation in the prison yard at USP-Florence. Felz

investigated the incident and determined that the prior altercation was an isolated

incident between two individuals and was not gang-related. In addition to the

altercation at USP-Florence, there was an incident between a Cuban prisoner and

a Latin King gang member at a separate institution in Leavenworth, Kansas,

which occurred prior to Verdecia’s placement in the Special Housing Unit.

Verdecia alleges that the series of events leading up to his assault created

an obvious risk when he was placed in the cell with two members of the Latin

Kings. Verdecia alleges that Collado and Felz ignored that series of events and

acted with deliberate indifference to a substantial risk of harm to his safety.

II.

“Orders denying qualified immunity before trial are appealable to the extent

they resolve abstract issues of law.” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th
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Cir. 1997). Because defendants contend that, even accepting plaintiff’s version of

the facts, they are entitled to qualified immunity, the Court has jurisdiction to

hear this appeal. DeAnzona v. City & County of Denver, 222 F.3d 1229, 1233

(10th Cir. 2000) (“If the defendant argues that [he] is entitled to qualified

immunity under the plaintiff's version of the facts because the plaintiff has not

demonstrated a violation of clearly established law, this Court may properly

exercise jurisdiction over an interlocutory appeal”).

“This court reviews the denial of qualified immunity on summary judgment

de novo.” Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998). 

Summary judgment is ultimately appropriate when there is “no genuine issue as to

any material fact and . . . the moving party is entitled to judgment as a matter of

law.” Oliver v. Woods, 209 F.3d 1179, 1184 (10th Cir. 2000). The evidence is

viewed, and reasonable inferences are drawn from the evidence, in the light most

favorable to the nonmoving party. Byers v. City of Albuquerque, 150 F.3d 1271,

1274 (10th Cir.1998).

This court, however, “reviews summary judgment orders deciding qualified

immunity questions differently from other summary judgment decisions” because

of the purposes behind qualified immunity. Holland v. Harrington, 268 F.3d

1179, 1185 (10th Cir. 2001). Qualified immunity is “an entitlement not to stand

trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511,
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526 (1985). The privilege is “an immunity from suit rather than a mere defense to

liability; and like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.” Id.

Once a defendant asserts a qualified immunity defense, the burden shifts to

the plaintiff. Scull v New Mexico, 236 F.3d 588, 595 (10th Cir. 2000). The

plaintiff must show that (1) the official violated a constitutional or statutory right;

and (2) the constitutional or statutory right was clearly established when the

alleged violation occurred. Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.

1995). If the plaintiff does not satisfy either portion of the two-pronged test, the

Court must grant the defendant qualified immunity. Gross v. Pirtle, 245 F.3d

1151, 1156 (10th Cir. 2001).

III.

Verdecia contends that defendants Collado and Felz placed him in danger

of attack and serious harm at the hands of his cell mates by placing him in a cell

with members of the Latin Kings. Verdecia alleges that Collado and Felz

incarcerated him under conditions posing a substantial risk of serious harm, due

to the prior incidents between Cuban inmates and members of the Latin Kings.

“Prison officials have a duty . . . to protect prisoners from violence at the

hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation

omitted, alteration in original). The deliberate indifference of a prison official
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“to a substantial risk of serious harm to an inmate violates the Eighth

Amendment.” Id. at 828. To establish a cognizable Eighth Amendment claim for

failure to protect, the plaintiff “‘must show that he is incarcerated under

conditions posing a substantial risk of serious harm’ the objective component, and

that the prison official was deliberately indifferent to his safety, the subjective

component.” Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). The

subjective component of the deliberate indifference test requires that, before

liability can be imposed, a prison 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.” Craig v. Eberly, 164 F.3d 490, 495 (10th

Cir. 1998).

The Supreme Court has explained that “deliberate indifference entails

something more than mere negligence . . . [but] something less than acts or

omissions for the very purpose of causing harm or with the knowledge that harm

will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate

indifference” standard as equal to “recklessness,” in which “a person disregards a

risk of harm of which he is aware.” Id. at 836-37.

Verdecia alleges that Collado and Felz should have been aware that the

placement of a Cuban in a cell with two members of the Latin Kings constituted

an excessive risk to his safety. Verdecia contends that Collado and Felz ignored
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the fact that prior to his assault there were two incidents of violence between

Latin King inmates and Cuban inmates in the federal prison system. Defendants

Collado and Felz argue that these prior altercations are insufficient to show that

they were subjectively aware of a substantial risk of serious harm to Verdecia or

that they were deliberately indifferent to that risk. Defendants Collado and Felz

argue that the previous stabbing at USP-Florence was investigated and determined

to be an isolated, non-gang-related incident.

Even if the conclusion Felz drew from his investigation was erroneous or

negligent, it does not rise to the level of an Eighth Amendment violation based on

deliberate indifference. Deliberate indifference requires more than a showing of

simple or heightened negligence. Board of County Commrs. v. Brown, 520 U.S.

397, 407-10 (1997); see Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Verdecia

must do more than establish that Collado and Felz should have known of the risk

of harm. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). To establish

deliberate indifference, Verdecia must present evidence supporting an inference

that Collado and Felz actually knew about a substantial risk of serious harm to his

safety. Oxendine v. Kaplan, 241 F.3d 1272, 1277 (10th Cir. 2001). Deliberate

indifference requires that the defendant’s conduct is “in disregard of a known or

obvious risk that was so great as to make it highly probable that harm would

follow,” or that the conduct “disregards a known or obvious risk that is very
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likely to result in the violation of a prisoner’s constitutional rights.” Berry v. City

of Muskogee, 900 F.2d 1489, 1494 (10th Cir. 1990). The mere showing of simple,

or even heightened, negligence does not establish that Collado and Felz were

subjectively aware of the risk. Subjective awareness requires that the defendant

“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.” 

Craig, 164 F.3d at 495. This awareness requirement exists because “prison

officials who lacked knowledge of a risk cannot be said to have inflicted

punishment” in a manner that violates the Eighth Amendment. Farmer, 511 U.S.

at 844.

Even when taking Verdecia’s version of the facts in the light most

favorable to him, the facts are insufficient to establish deliberate indifference. 

Verdecia presents no allegations, nor evidence, that Felz and Collado subjectively

knew of the risk to Verdecia or that they were deliberately indifferent to the risk. 

Rather, Verdecia appears to argue that Felz and Collado were negligent in

assessing the risk. Verdecia contends that defendants should have been aware

that the placement of a Cuban in a cell with two members of the Latin Kings

constituted an excessive risk to his safety. However, Verdecia does not establish

that Collado and Felz were subjectively aware that the placement of a Cuban in a

cell with two members of the Latin Kings was a risk to his safety.
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There is no evidence that Felz knew Verdecia was Cuban, or that Felz knew

that Verdecia had been housed in a cell with members of the Latin Kings. 

Although Verdecia gave his case manager a transfer form directed to the attention

of Felz, and which indicated that Verdecia feared an attack from his cell mates,

there is no evidence that Felz received the transfer form before Verdecia was

attacked. In addition, Felz specifically investigated one of the prior altercations

and, based on his investigation, concluded that it was an isolated one-on-one fight

between two inmates and was not gang-related.

Collado was aware of Felz’s investigation and of its results and Felz’s

conclusion that the altercation was not gang-related. Verdecia states that he

spoke to Collado and asked him to get him out of his cell in the Special Housing

Unit, but there is no evidence that Verdecia explained the reason for his requested

transfer. Verdecia has presented no evidence to support a finding that Collado and

Felz subjectively drew an inference that was contrary to the findings and

conclusion of Felz’s prior investigation.

Verdecia has presented facts from which the inference could be drawn that

a substantial risk of serious harm exists, but he has failed to establish that Collado

and Felz actually drew such an inference. Absent subjective awareness and

knowledge of the risk, Collado and Felz cannot be found to have inflicted

punishment in a manner that violates the Eighth Amendment.
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Additionally, the magistrate judge appears to have applied a negligence

standard when considering whether genuine issues of material fact existed, by

concluding: “Although Felz may escape liability if the jury instead concludes that

Felz’s response to the Pena-Colone incident was reasonable in light of his

conclusion that the Pena-Colone incident was an isolated incident of retaliation,

that is a factual issue which cannot be resolved on summary judgment.” Aplt.

App. at 142. The implication of this statement is that Felz could be held liable if

the jury concludes that his conclusion or response was unreasonable. However, a

finding of unreasonableness is merely a finding of negligence and not deliberate

indifference. Deliberate indifference requires more than a finding of negligence. 

Board of County Commrs. v. Brown, 520 U.S. 397, 407-10 (1997); see Estelle v.

Gamble, 429 U.S. 97, 105-06 (1976). Absent actual subjective awareness of the

risk, Felz and Collado cannot be deliberately indifferent to the risk. Craig, 164

F.3d at 495.

The failure of Felz and Collado to alleviate a potential risk that should have

been perceived, but was not, does not satisfy the deliberate indifference standard

of the Eighth Amendment. Farmer, 511 U.S. at 838. Accordingly, Verdecia

cannot establish that Felz’s and Collado’s actions violated a federal constitutional

right or statutory right. Because Verdecia cannot meet the first portion of the

two-pronged test, the defendants are entitled to qualified immunity. Gross, 245
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F.3d at 1156.

IV.

For the above reasons, the order of the district court denying summary

judgment in favor of defendants is REVERSED and the case is REMANDED for

further proceedings not inconsistent with this opinion.