No. 6:23-cv-00365

Jeremy Edwards,

Plaintiff,

v.

Lenn Gusa,

Defendant.

ORDER 

Plaintiff Jeremy Edwards filed this civil rights action pursuant 

to 42 U.S.C. § 1983 in the Western District of Texas. Doc. 1. 

Defendant Lenn Gusa responded with a motion to dismiss 

pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 8. The 

case was then transferred to this court and referred to United 

States Magistrate Judge John D. Love. Docs. 11, 13. On December 

4, 2023, the magistrate judge issued a report recommending that

defendant’s motion to dismiss (Doc. 8) be granted and that 

plaintiff’s claims be dismissed for failure to state a claim. Doc. 17. 

Plaintiff filed objections to the report and recommendation. Doc. 

18.

The court reviews the objected-to portions of a report and 

recommendation de novo. 28 U.S.C. § 636(b)(1). In conducting a de 

novo review, the court examines the entire record and makes an 

independent assessment under the law. Douglass v. United Servs. 

Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

I. Background

In June 2021, defendant Gusa, a prison guard employed with the 

Texas Department of Criminal Justice, escorted plaintiff from his 

cell in the high-security wing of the department’s Coffield Unit. 

Doc. 1 at 2 ¶ 13. When defendant and plaintiff reached the 

neighboring cell, another inmate threw an improvised spear — i.e., 

a 22′′ paper pole with a 6′′ metal tip sharpened to a point — at 

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plaintiff. Id. at 3 ¶ 20. The spear went through plaintiff’s right 

forearm and pierced his abdomen. Id. at 3 ¶¶ 20–21. 

According to plaintiff’s complaint, guards at the Coffield Unit 

are required to wear shields when escorting prisoners to and from 

their cells in the high-security unit. Doc. 1 at 2 ¶ 9. Defendant’s 

failure to use a protective shield, plaintiff alleges, constitutes 

deliberate indifference to his safety and was a direct and proximate 

cause of his injuries. Id. at 4 ¶ 27. Plaintiff therefore claims that 

defendant failed to protect him in violation of his rights under the 

Eighth Amendment. 

II. Analysis

To survive a Rule 12(b)(6) motion to dismiss, plaintiff’s 

complaint must include “enough facts to state a claim to relief that 

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). The court will accept all alleged facts as true, even if 

doubtful, but those facts must establish a right to relief that rises 

“above the speculative level.” Id. at 555. 

The Eighth Amendment requires prison officials “to protect 

prisoners from violence at the hands of other prisoners.” Farmer v. 

Brennan, 511 U.S. 825, 833 (1994). But not “every injury suffered by 

one prisoner at the hands of another . . . translates into 

constitutional liability for prison officials responsible for the victim’s 

safety.” Id. at 834. An Eighth Amendment claim for failure to protect 

requires plaintiff to show that he was “incarcerated under conditions 

posing a substantial risk of serious harm,” and that defendant acted 

with “deliberate indifference” toward his safety. Id. at 834. 

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

Domino v. Tex. Dep’t of Crim.Just., 239 F.3d 752, 756 (5th Cir. 2001). 

To act with deliberate indifference, an 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.” 

Brennan, 511 U.S. at 837. 

Plaintiff’s allegations fail to meet this standard, as the 

magistrate judge’s report and recommendation detailed. The only 

factual allegation that supports an inference of deliberate 

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indifference is defendant’s failure to wear a protective shield, a 

breach of unspecified safety protocols. This might support a 

finding of negligence. But “merely negligent” conduct by a 

government official is not enough to establish a claim of deliberate 

indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); see 

also Hinojosa v. Johnson, 277 F. App’x 370, 374 (5th Cir. 2008) 

(negligence in failing “to protect a prisoner from assault does not 

compromise a constitutional violation”). “Deliberate indifference 

cannot be inferred merely from a negligent or even a grossly 

negligent response to a substantial risk of serious harm.” Torres v. 

Livingston, 972 F.3d 660, 663 (5th Cir. 2020) Nor is it sufficient 

for plaintiff to show that defendant failed to follow the prison’s 

own policies. Richardson v. Thornton, 299 F. App’x 461, 463 (5th 

Cir. 2008). 

In his objections, plaintiff points to the following allegations 

in the original complaint to show that, contrary to the magistrate 

judge’s conclusion, the complaint included sufficient facts to 

establish a claim of deliberate indifference: 

51. Defendant Gusa was aware that inmates in 

the high-security wing are exposed to the risk of 

violent attacks from other inmates.

52. Guards at the Coffield [Unit] are required 

to wear shields when escorting inmates from the 

high-security wing to and from their cells.

53. Previously, Mr. Edwards had been escorted 

from the high-security with a shield which 

resembles a big door.

54. The shield is utilized to protect inmates 

from violent attacks from other inmates. 

55. Thus, Defendant Gusa was aware of facts 

from which he could infer that a substantial risk of 

serious harm existed when he escorted Edwards to 

and from his cell without a protective shield.

Doc. 18 at 2–3 (citing Doc. 1 at ¶¶ 51–55).

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Defendant’s alleged violation of prison protocol does not 

constitute a constitutional violation in itself, plaintiff concedes. 

But it is “evidence of notice of the risk of harm and the violation 

of the protocol is evidence that refusal to follow the protocol was 

not reasonable.” Doc. 18 at 7. 

But this evidence, on its own, establishes a claim for 

negligence, not deliberate indifference. The requirement that 

prison guards wear a protective shield when escorting prisoners is 

a routine safety precaution, like a requirement that police officers 

wear a bullet-proof vest while on patrol. It effectively protects

individuals from unforeseeable attacks that are unlikely in any 

given moment. But it does not indicate that a substantial risk of 

serious harm to plaintiff existed, or that defendant knew of and 

disregarded that risk. Failure to wear a protective shield is 

particularly unconvincing as evidence of deliberate indifference, 

as opposed to negligence, since that shield also protects the guard 

from improvised projectiles. 

In Simmons v. Collins, the Fifth Circuit expressly held that a 

“violation of prison procedure does not in itself support a 

constitutional claim.” No. 92-5067, 1993 WL 82276 at *2 (5th Cir. 

Mar. 17, 1993). The facts of that case were similar to those alleged 

here. Simmons alleged that a guard sent him back to his cell alone, 

in violation of regulations that he should be accompanied by two 

officers when outside his cell. As he was returning alone to his cell 

he was stabbed by another inmate. Id. at *1. The Fifth Circuit found 

that the prison guards “at worst were negligent in failing to escort 

Simmons back to his cell” and that their “negligent failure to protect 

a prisoner from assault does not amount to a violation of the 

prisoner’s constitutional rights under the Due Process Clause.” Id.

at *2.

Plaintiff relies on Hinojosa v. Johnson to suggest that defendant 

need not have had advanced notice of the specific attack in order 

to be liable. 277 F. App’x 370; Doc. 18 at 5. Hinojosa, however, is 

distinguishable. Hinojosa was housed in an open dormitory and 

was attacked by another inmate who used a broken toilet brush to 

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stab him. Id. at 372. The record contained evidence that the 

attacking inmate was mentally unstable, that officials had been 

warned that he posed a threat to himself and others, that the open 

dorms were largely unsupervised, and that at least one prior attack 

with unsecured cleaning tools in the dorm had occurred—the 

exact same facts that occurred with respect to the incident 

involving Hinojosa. Id. at 378. 

Here, plaintiff’s cited allegations do not suggest that 

defendant Gusa was aware of a specific threat to plaintiff by 

another inmate at the time of transport. Moreover, plaintiff’s 

general references to the high-security wing and the need for 

protective equipment fail to allege facts that would make it so 

obvious that any prison official would have known of the risk 

simply because of its obviousness. See Farmer, 511 U.S. at 842.

Lastly, plaintiff argues that this is an “obvious case” that 

warrants a finding of a constitutional violation even without 

precedent directly on point. Doc. 18 at 7–8. The court disagrees. 

As discussed above, plaintiff’s general references to the highsecurity wing and the need for protective equipment fail to allege 

facts that would make it so obvious that any prison official would 

have known of the risk simply because of its obviousness. See 

Farmer, 511 U.S. at 842.

In sum, plaintiff has failed to state a claim for deliberate 

indifference against defendant Gusa.

Having reviewed the magistrate judge’s report de novo, and 

being satisfied that it contains no error, the court overrules plaintiff’s 

objections and accepts the report’s findings and recommendation. 

Accordingly, defendant’s motion to dismiss (Doc. 8) is granted 

and this case is dismissed with prejudice for failure to state a 

claim. All motions pending in this civil action are denied.

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So ordered by the court on March 14, 2024.

J. CAMPBELL BARKER

United States District Judge

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