* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-41029

 

WILLIE MURRAY; ET AL,

Plaintiffs,

WILLIE MURRAY,

Plaintiff-Appellant,

versus

TIM WEST; CHARLES R LANGSTON; 

SONIE MANGUM; KARL HARRIMAN,

Defendants - Appellees.

 

Appeal from the United States District Court

for the Southern District of Texas

No. G-94-CV-496

 

March 29, 1999

Before HIGGINBOTHAM, JONES, AND WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:*

The appellant, Willie Murray, is one of four asthmatic

prisoners who filed a 42 U.S.C. § 1983 complaint against the Texas

Department of Criminal Justice (TDCJ) and four individual prison

officials, including Building Major Charles Langston. The district

court concluded that all four defendants enjoyed qualified immunity
2

and entered judgment against Murray and the other plaintiffs. We

affirm.

Murray alleged that Langston acted with deliberate

indifference to his health needs by assigning him to work outside,

when a medical doctor at the prison had specified that Murray was

not to be exposed to environmental pollutants. Langston swore in

an affidavit that Murray was placed on a special medical squad

where prison officials had access to the limitations specified in

workers’ medical records and prisoners received surgical face masks

to reduce exposure to environmental pollutants. Murray does not

disagree. Despite this precaution, however, Murray did have an

asthmatic attack, and his doctor ordered that he no longer work

outside at all. Murray was initially disciplined for refusing to

work, but this was overturned in an administrative appeal on the

basis that the work assigned him was inconsistent with his medical

restrictions.

The only contested issue of fact is whether Langston discussed

the reassignment with Murray’s physician before forcing Murray to

work outside over his objection. Langston averred that he

discussed the reassignments with “medical personnel” who informed

him that “inmates with respiratory problems could work outside,” as

long as an inmate’s ability to work outside was evaluated on a

case-by-case basis. Murray contends that Langston did not in fact

discuss the issue with a doctor, but rather only with defendant

prison official Sonie Mangum. This contention is buttressed by the

response to a letter he wrote a medical doctor at the prison. The
3

letter asked whether the doctor had cleared him to work outside,

and the response indicated that the only evaluation consisted of

the work restrictions that the doctor had placed six months before.

Prison officials violate the constitutional proscription

against cruel and unusual punishment when they demonstrate

deliberate indifference to a prisoner’s serious medical needs,

constituting an unnecessary and wanton infliction of pain. See

Wilson v. Seiter, 501 U.S. 294 (1991). The facts underlying a

claim of deliberate indifference must clearly evince the medical

need in question and the alleged official dereliction. See Johnson

v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). For liability to

attach, the official must not only know of facts from which an

inference could be drawn that a substantial risk of serious harm

exists, but must in fact draw the inference. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994).

Though a genuine question exists whether Langston consulted

medical doctors, Murray has offered no evidence that Langston knew

a substantial risk of harm existed, and he has thus not shown that

this question is material. A negligent assignment to work that is

not cruel and unusual per se is not unconstitutional. See Jackson

v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989). Perhaps Langston was

negligent in not consulting a medical doctor about Murray, but

there is no evidence other than Murray’s conclusory allegation that

Langston believed that a substantial risk of harm existed. Indeed,

Langston’s adoption of precautions suggests that he at least

believed that any risk could be minimized. Even Murray’s pleadings
4

report that Langston indicated that work outside would be attempted

on an experimental basis, to determine under controlled conditions

whether the surgical mask would provide adequate protection.

Langston is thus entitled to qualified immunity. A fortiori,

so are the other defendants, whose involvement was no greater than

Langston’s. Also, we reject Murray’s apparently nonsensical

argument that the district court and the defendants changed the

nature of his claim. See Brinkmann v. Abner, 813 F.2d 744, 748

(5th Cir. 1987).

AFFIRMED.