## 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, Colo rado, (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; Virgi nia M. Creighton, Denver, Colorado, on the brief) for Plaintiff-Appellee.* The Honorable Claire V. Eagan, United States Distr ict Judge for the

Northern District of Oklahoma, sitting by designati on. -2- Before KELLY andO’BRIEN , Circuit Judges, and EAGAN , District Judge. *

EAGAN , District Judge.
Heriberto Verdecia filed this action asserting clai ms against defendants Reuben Collado and Edward Felz, alleging that his r ights under the Fifth, Eighth and Fourteenth Amendments were violated when the de fendants, acting with deliberate indifference to a substantial risk of ha rm 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 recommendedthat the summary judgment motion be denied on the ground that the plaintiff h ad presented sufficient evidence to create a genuine issue of material factas to whether defendants Collado and Felz acted with deliberate indifference to a substantial risk of harm to the plaintiff, and the magistrate judge found th at the defendants failed to demonstrate their entitlement to qualified immunity . The district court adopted the magistrate judge’s report and recommendation an d denied the defendants’ motion for summary judgment. Defendants Collado and Felz filed an interlocutory appeal challenging the1 Juan Rodriguez and Roberto Rodriguez are unrelated , and Roberto

Rodriguez is himself Cuban. -3- 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 qualifie d immunity, the judgment of the district court is reversed. I. Heriberto Verdecia is a Cuban male currently in fed eral detention in Talledega, Alabama. Prior to his transfer to Alabama, Verdecia was placed in the United States Prison in Florence, Colorado (“USP-Fl orence”). Defendants Lt. Edward Felz and Lt. Reuben Collado are employed as Special Investigative Agents by the Bureau of Prisons at USP-Florence. T heir responsibilities were to investigate all criminal activity at the facility. On July 28, 1998, Verdecia was removed from the gen eral 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 othe r 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 hi s cell in the Special Housing Unit. On the following day, Verdecia gave his case manager a transfer form-4-

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, 199 8, Verdecia was attacked with a razor blade by his two cell mates. As a res ult of the assault, Verdecia was hospitalized and received 110 stitches in his back. In July 1998, before Verdecia was placed in the Spe cial 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 prisonyard at USP-Florence. Felz investigated the incident and determined that the p rior altercation was an isolated incident between two individuals and was not gang-r elated. 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 withtwo members of the Latin Kings. Verdecia alleges that Collado and Felz igno red 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-5-

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 the re is “no genuine issue as to any material fact and . . . the moving party is ent itled to judgment as a matter of law.” Oliver v. Woods , 209 F.3d 1179, 1184 (10th Cir. 2000). The eviden ce is viewed, and reasonable inferences are drawn from th e 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 orde rs deciding qualified immunity questions differently from other summary j udgment 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,-6-

526 (1985). The privilege is “an immunity from sui t rather than a mere defense to liability; and like an absolute immunity, it is eff ectively lost if a case is erroneously permitted to go to trial.” Id

. Once a defendant asserts a qualified immunity defen se, 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 c learly established when the alleged violation occurred. Albright v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995). If the plaintiff does not satisfy either po rtion 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 substant ial risk of serious harm, due to the prior incidents between Cuban inmates and me mbers of the Latin Kings. “Prison officials have a duty . . . to protect pris oners from violence at the hands of other prisoners.” Farmer v. Brennan , 511 U.S. 825, 833 (1994) (citation omitted, alteration in original). The deliberate i ndifference of a prison official-7-

“to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828. To establish a cognizable Eighth Amendme nt 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 indiffere nt 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 b oth be aware of facts from which the inference could be drawn that a substanti al 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 in difference entails something more than mere negligence . . . [but] som ething less than acts or omissions for the very purpose of causing harm or w ith the knowledge that harm will result.” Farmer , 511 U.S. at 835. The Court defined this “deliber ate 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-8-

the fact that prior to his assault there were two i ncidents of violence between Latin King inmates and Cuban inmates in the federal prison system. Defendants Collado and Felz argue that these prior altercation s 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 ris k. Defendants Collado and Felz argue that the previous stabbing at USP-Florence wa s 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 Eigh th Amendment violation based on deliberate indifference. Deliberate indifference r equires 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 s hould 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 evid ence 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 highlyprobable that harm would follow,” or that the conduct “disregards a known orobvious risk that is very-9-

likely to result in the violation of a prisoner’s c onstitutional rights.” Berry v. City of Muskogee , 900 F.2d 1489, 1494 (10th Cir. 1990). The mere sh owing of simple, or even heightened, negligence does not establish that Collado and Felz were subjectively aware of the risk. Subjective awarene ss requires that the defendant “must both be aware of facts from which the inferen ce could be drawn that a substantial risk of serious harm exists, and he mus t also draw the inference.” Craig , 164 F.3d at 495. This awareness requirement exis ts because “prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment” in a manner that violates the Eighth Am endment. Farmer , 511 U.S. at 844. Even when taking Verdecia’s version of the facts inthe light most favorable to him, the facts are insufficient to est ablish deliberate indifference. Verdecia presents no allegations, nor evidence, that Felz and Collado subjectively knew of the risk to Verdecia or that they were deli berately indifferent to the risk. Rather, Verdecia appears to argue that Felz and Col lado 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 me mbers of the Latin Kings constituted an excessive risk to his safety. Howev er, 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 riskto his safety.-10-

There is no evidence that Felz knew Verdecia was Cu ban, or that Felz knew that Verdecia had been housed in a cell with member s 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 a n attack from his cell mates, there is no evidence that Felz received the transfe r 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 it s results and Felz’s conclusion that the altercation was not gang-relate d. Verdecia states that he spoke to Collado and asked him to get him out of hi s cell in the Special Housing Unit, but there is no evidence that Verdecia explai ned the reason for his requested transfer. Verdecia has presented no evidence to sup port 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 inferen ce could be drawn that a substantial risk of serious harm exists, but he h as failed to establish that Collado and Felz actually drew such an inference. Absent s ubjective awareness and knowledge of the risk, Collado and Felz cannot be f ound to have inflicted punishment in a manner that violates the Eighth Ame ndment.-11-

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 rea sonable in light of his conclusion that the Pena-Colone incident was an iso lated incident of retaliation, that is a factual issue which cannot be resolved onsummary 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 mor e 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 subjec tive awareness of the risk, Felz and Collado cannot be deliberately indif ferent to the risk. Craig , 164 F.3d at 495. The failure of Felz and Collado to alleviate a pote ntial risk that should have been perceived, but was not, does not satisfy the d eliberate 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 qu alified immunity. Gross , 245-12-

F.3d at 1156. IV. For the above reasons, the order of the district co urt denying summary judgment in favor of defendants is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opin ion.