### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-20628

MARY WALKER, Individually and as a Personal Representative of the Estate of Michael Dewayne Walker; MICHAEL SPENCER, Individually and as a Personal Representative of the Estate of Michael Dewayne Walker, Plaintiffs–Appellees,

v. MICHAEL UPSHAW, Warden of Ferguson Unit, Defendant–Appellant.

A ppeal from the United States District Court for the Southern District of Texas USDC No. 4:08-CV-530

Before REAVLEY, PRADO, and OWEN, Circuit Judges. PER CURIAM: * This case is before the court on i n terlocutory appeal from the dis t r i c t court’s denial of summary judgment b ased o n qualified immunity. The district court denied Warden Michael Upshaw’s motion for summary judgment because it concluded there were facts to support that Upshaw, through his failure to train a nd supervi s e h i s staff, was deliberately indifferent to inmate Michael U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 4, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-20628 Document: 00512162562 Page: 1 Date Filed: 03/04/2013No. 11-20628

Dewayne Walker’s r ight to b e free from cruel and u nusual punishment. We

reverse. I Plaintiffs–Appellees Mary Walker and M i c h ael Spencer (Plaintiffs) filed suit under 42 U.S.C. § 1983 individually and a s p ersonal r e presentatives of the estate of their son, Michael Dewayne Walker ( Walker), f or Walker’s alleged wrongful death while in custody of the Texas Department of Criminal J u s t i c e (TDCJ). Walker was serving a twenty-year prison sente n c e a f t e r b eing convicted for a ggravated sexual assault of a child and was assigned to the TDCJ’s Ferguson Unit in Midway, T e xas. Walker was placed in a c e ll with Wilber “Peanut” Hamilton (Hamilton). In the e arly mornin g hours the following day, Walker was pronounced d ead after having been stomped and kicked to death by Hamilton. Plaintiffs sued the TDCJ, supervisory officials, a nd correctional officers alleging that their failure to protect Walker resulted in his wrongful death. Initially, Plaintiffs advanced multiple theories of recovery including violations of W alker’s rights u nder the First, Fourth, Eig h t h , a n d Fourteenth Amendments. After mu l t i ple pretrial motions, the only remaining claims are against three correctional officers on duty the night Walker died and Appellant Michael Upsha w ( U p shaw) for their alleged v iolation of Walker’s Eighth Amendment right to b e free from cruel and unusual punishment. Upshaw was the w arden at the Ferguson U nit when Walker w a s k i l l ed. Plaintiffs contend that Walker’s d e ath was caused by, among other things, Upshaw’s failure to train and supervise the correctional officers and his failure to enforce or adopt adequate policies to ensure Walker’s safety. Upshaw and other defendants filed a m otion for summary judgment based

on qualified immunity. The district c o urt denied the motion. I t held that “significant factual issues prevent a determination that the supervisors’ conduct

2 Case: 11-20628 Document: 00512162562 Page: 2 Date Filed: 03/04/2013No. 11-20628

was objectively reasonable in light of clearly established l aw” and determined that Plaintiffs were entitled t o more disc o v e r y on the issue. The district court also held that “because g e nuine issues of m aterial fact remain concerning the deficient policies implemented and enforced a t the Ferguson U ni t

. . . , the supervisory officials are not entitled to qualified immunity.” Upshaw, along with the other defendants, f iled an interlocutory appeal of the denial. This court dismissed a p o rtion of Plaintiffs’ complaint against several parties and remanded so that Upshaw and two correctional officers who

were on duty at the time of Walker’s death could “be deposed to determine whether they had a n actual subjective a wareness of the danger to Walker and if so, whether they were deliberately indiff e rent to that danger of which they were actually subjectively aware.” After Upshaw w as deposed, he file d a s e c ond motion f or summary j u d gment based on qualified immunity. Again, t he district court denied h i s motion. The district court held that it was “unclear w hether [ Upshaw] failed to adequately train the prison staff u nder his supervision” and noted that “plaintiffs have offered expert testimony that Upshaw failed to adequately train and supervise his staff.” T hough c laims remain pending against the correctional officers, only Upshaw is a party to this appeal. II “The denial o f a motion for summary j udgment b ased o n qualified immunity is immediately a ppealable notwithsta n d i n g that such denial was premised upon th e e x i s t ence of ‘[m]aterial i ssues of fact.’” 1 “We determine whether a denial of summary judgment b ased on qualified i mmuni t y is

1 Thom p son v . U

p shur Cnty. , 245 F

. 3d 447, 455 ( 5th Cir. 2001) (alteration in original) ( quoting Behrens v . Pel l eti er , 516 U

. S. 299, 313 ( 1996) )

. 3 Case: 11-20628 Document: 00512162562 Page: 3 Date Filed: 03/04/2013No. 11-20628

immediately appealable by ‘look[ing] at the legal argument advanced.’” 2 “Facts

are material if they might a ffect the outcome of the lawsuit under the g overning law.” 3 A p arty “chall e nges m ateriality when he contends that taking all the plaintiff’s factual allegations as t rue no violation of a cle a r l y established right was shown.” 4 “Because this court has jurisdiction only to review the questions

o f law p o sed by t he district court’s denial of summary judgment based o n t h e defense of qualified immunity, this court will ignore the disputes o f f a c t, take those facts assumed by the district court in a light most favorable to [plaintiffs], and determine whether those facts establish a n exception to the qualified immunity defense.” 5 The district court offered no assumed facts to support its conclusion that fact issues remained concerning w hether Upshaw failed to t rain and supervise his staff adequately other t han stating, “Plaintiffs have offered e xpert t estimony that Upshaw failed to adequately train and supervise his staff.” “Stand ing alone, an expert’s o p i nion is generally not enough to e stablish deliberate indifference.” 6 “Ideally, the district court’s o rder d enying summary judgm ent based on qualified immunity explains what facts the plaintiff m ay b e ab l e to prove at trial, i.e. what particular f acts the c o urt assumed in denying summary

2 Esta te of D a v i s ex rel

. M cCul l y v . Ci ty of N

. Ri chl a nd H i l ls , 406 F. 3d 375, 379 ( 5th Cir. 2005) ( alteration in original) ( quoting Reyes v . Ci ty of Ri chm ond , 287 F .3d 346, 350 ( 5th Cir. 2002) )

.
3 Johnson v . D eep E. Tex. Reg’l N a rcoti cs Tra

ff icki ng Ta sk Force , 379 F .3d 293, 301 ( 5th Cir. 2004) ( citing Anderson v . Li berty Lobby, Inc. , 477 U

. S. 242, 248 ( 1986) )

.

4 Esta te of D a v i s , 406 F. 3d at 379 (quoting Reyes , 287 F. 3d at 351) ( internal quotation
m ark s om itted )

.

5 Southa rd v . Tex. Bd. of Cri m i na l Justi ce , 114 F. 3d 539, 552 ( 5th Cir. 1997) ( quoting N erren v . L i v i ngston Pol i ce D ep ’t , 86 F. 3d 469, 472 ( 5th C ir. 1996) ) ( internal quotation m ark s om itted )

.

6 Thom p son , 245 F. 3d at 459. 4 Case: 11-20628 Document: 00512162562 Page: 4 Date Filed: 03/04/2013No. 11-20628

judgment u rged on t he basis of qualified immunity.” 7 When the district cou r t does not do so, we h ave two choices: “scour the record and determine what facts the plaintiff may be able to prove at trial and proceed to resolve t he legal issues,

or remand so that the trial c ourt can c larify the order.” 8 We do not believe remand is necessary here. Even accepting all of Plaintiffs’ evidence as true and considering i t a s a w h o le, the facts do not support a finding of U pshaw’s deliberate indifference. The evidence, taken in the light m o s t f avorable to Plaintiffs, reflects that Hamilton had a h istory of violence, attempted to kill another c ellmate the

same w ay he used h is prison-issue d b o o ts to kill Walker, and was in administrative segregation for over six y ears. Hamilton’s fear of other inmates

was documented in his files. Plaintiffs also offered evidence that other inmates

a n d prison administrators knew of a nd reported H amilton’s history of assau l t i n g cellmates. One i nmate testified t hat it would take no more than thirty or forty minutes for a fight to break out after Hamilton received a c e llmate. After such

a fight, the prison st a f f w o u ld segregate Hamilton for f ifteen days, return him to a cell with another cellmate, and the process would repeat again. C onversely, these same inmates reported Walker as b eing “laid b ack” and “stay[ing] to himself.” E vidence further suggests that W alker would have been classified as “vulnerable” under the Safe Prisons P rogram. Finally, i n m a t e s testified that t h e r e w e r e several empty cells on the 3 R o w of B Block, meaning it w a s unnecessary to put Hamilton and Walker in the same cell. As for the night o f t h e a ttack, Plaintiffs offered e vidence t hat Hamilton warned t he staff that “violence is going to happen” and tha t H a m ilton told officers, “If you put him in here, I’m going to k i l l h i m . ” There is also evidence

7 Id. at 456.

8 Id. (citing Behrens , 516 U

. S. at 842)

. 5 Case: 11-20628 Document: 00512162562 Page: 5 Date Filed: 03/04/2013No. 11-20628

that W alker was crying for help for at least three hours and that no guards checked on him during this time. After the attack, an inmate testified t hat one of Upshaw’s s ubordinates encouraged inmates to change their report s o f t h e incident to state that a g uard or rover completed h is round e very fifteen minutes that night to “make it look good for her behalf and her officers.” As for prison conditions, t he row on which Hamilton and Walker w e r e housed had n o air conditioning and w a s farthest from the fans, making it the h o t t e s t area of the unit in July. Upshaw testified t hat h e was unaware of a policy requiring i nmates such as Hamilton, who may h ave been taking psychotropic m e d ication, to be housed in areas that would not b e as h ot as the 3 Row of B Block. Further, a guard testified that Ferguson w a s k n o w n a s a “gladiator” prison for being a “rough unit.” All p arties a gree that Up s h a w h a d no actual, subjective knowledge of Walker’s situation o n the nigh t of his death. In f act, t he undisputed evidence

r e veals that Upshaw was a t home in bed the night of W alker’s death. With respect t o p olicies, Upshaw testified that as s enior warden of the F erguson Unit, he was responsible for the “overall operation of the faci l i t y , a l l aspects of it.” When asked about the boots Hamilton wore, Upshaw explained t hat w hile soft,

canvas shoes—as opposed to the work boots Hamilton had—are available, they

are usually only an option for inmates in administrative segregation. Upshaw also stated, “I’ve had a lot of inmate a ssaults where shoes o r boots, even tennis shoes, were used; but none . . . that resulted in the dea t h o f a n o f fender.” Plaintiffs submitted an expert report b y Charles M ontgomery, which concluded that Upshaw, as t he primary policymaker overseeing the Ferguson Unit, “failed to ensure that th e n e c e s sary steps were taken insofar as the

s u p ervision, training, and/or discipline of guards” and that “Upshaw’ s d e p o s i t i o n testimony regarding [his handl i n g o f threats against cell mates was] utterly preposterous.” P laintiffs rely on t his expert report to contend that U pshaw’s

6 Case: 11-20628 Document: 00512162562 Page: 6 Date Filed: 03/04/2013No. 11-20628

policy of h a n d l i n g an inmate’s threat a gainst another i n mate was to take investigative and corrective m easures f or a specific threat but not if the threat was more general. III The doctrine of qualified immunity grants “government officials performing discretionary functions” a shield from liability for civil damages as long “as their condu c t does not violate c l early established s tatutory or constitutional rights o f w hich a reasonable person would have k nown.” 9 “The first st e p i n the qualified immunity analysis is to determine whether the plaintiff has alleged the violation of a c learly established federal constitutional

. . . right.” 1 0 An o fficial n eed not demonstrate that he d id n ot v iolate clearly established federal rights; this burden is placed upon the plaintiffs. 1 1 Once the plaintiff has discharged that burden, “ t he Court must then assess whether the defendant’s conduct was o bjectively reasonable in l ight of clearly established law.” 1 2 It is well established that “prison officials have a d u t y . . . to pro t e c t prisoners from violence at t he h ands of other p risoners.” 1 3 “ It is not, however, e very injury suffered by one prisoner at the h ands of another that translates i n t o c onstitutional liability for prison officials responsible for the

9 Esta te of D a vi s , 406 F

. 3d at 380 ( quoting H a rl ow v . Fi tz

gera l d , 4 5 7 U

. S

. 800, 818 ( 1982) ) ( internal quotation m ark s om itted )

.

1 0 Thom p s o n , 2 4 5 F

. 3d at 457 ( citing H a re v . C i ty of Cori nth , 135 F. 3d 320, 325 ( 5th Cir. 1998) )

.

1 1 Esta te of Da v i s , 406 F. 3d at 380 ( citing P ierce v . Sm i th , 117 F. 3d 866, 871- 72 ( 5th Cir. 1997) )

.
1 2 Thom

p son , 245 F. 3d at 457 ( citing H a re , 135 F. 3d at 326)

.
1 3 Fa rm er v . Brenna n , 511 U

. S. 825, 832 ( 1994) ( alteration in original) ( quoting CortesQ ui nones v . Ji m enez - N ettl eshi p , 842 F. 2d 556, 558 ( 1s t Cir. 1988) ) ( internal quotation m ark s om itted )

. 7 Case: 11-20628 Document: 00512162562 Page: 7 Date Filed: 03/04/2013No. 11-20628

victim’s safety.” 1 4 A p rison official violates the Eighth A m e n dment only when the inmate shows that (1) he was incarcerated under conditions the official knew posed “ a s ubstantial risk of serious harm” and ( 2) the prison official was deliberately indifferent to such risk

. 1 5 An official acts with deliberate indifference if he is “aware of an ‘excessive risk to i n m a t e . . . safety’ and disregards that risk.” 1 6 Supervisory officials may not be held liable under § 1983 f o r the actions of their subordinates u n d er any theory of vicarious liability. 1 7 When, as here, plaintiffs allege t hat a s upervisory official failed t o train or supervise, t hey must prove that (1) the official failed to train o r supervise the c o r r ectional officers, (2) a causal link exists b etween the f ailure to train or supervise a nd the alleged violation o f the inmate’s rights, and (3) t he f ailure to tra i n or supervise amounted to deliberate indiff e rence. 1 8 To hold Upshaw liable on account of inadequate policy, Plaintiffs must show “ (1) that the policy itself violated federal law o r authorized or directed the deprivation of federal rights or ( 2 ) that the policy was adopted or maintained b y the municipality’s policymakers with deliberate indifference as to its known or obvious consequences.” 1 9

1 4 Id. at 834.

1 5 Id.

1 6 Longori a v . Texa s , 473 F. 3d 586, 592 ( 5th Cir. 2006) (quoting Fa rm er , 5 1 1 U

. S. at 837)

.
1 7 Thom

p son , 245 F. 3d at 459 ( citing Thom pk i n s v . Bel t , 828 F. 2d 298, 303 ( 5th Cir. 1987) )

.
1 8 Id. ( citing Sm i th v . Brenoettsy , 158 F .3d 908, 911- 12 ( 5th Cir. 1998) )

.

1 9 Johns o n v . D e e

p E

. Tex. Reg’l N

a rcoti cs Tra

f f i cki ng Ta sk F

orce , 379 F. 3d 293, 309 ( 5th Cir. 2004) ( quoting Bd. of C om m ’rs of Brya n Cnty. v . Brow n , 520 U .S. 397, 423 ( 1997) ) ( internal q u o t a t i o n ma rk s om itted )

. Although Johnson s peak s to m unicip al liability, this court has noted “the clos e relations hip betw een the elem ents of m unicip al liability and an ind ivid ual
s up ervis or’s liability” and held that “the s am e s tand ard s of f ault and caus ation s hould govern. ” Southa rd v . Tex. Bd. of Cri m i na l Justi ce , 114 F. 3d 539, 551 ( 5 t h C i r . 1 9 97) (quoting D oe v . 8 Case: 11-20628 Document: 00512162562 Page: 8 Date Filed: 03/04/2013No. 11-20628

Whether the e vidence sufficiently “demonstrate[s] deliberate indifference for supervisory liability is a legal issue that this court m a y r e v i e w on interlocutory appeal.” 2 0 We review de n ovo “the scope o f clearly established law and the objective reasonableness of those acts of the defendant that the district court found the plaintiff could p r o v e a t t rial.” 2 1 In other words, “review of the district court’s conclusions c o n c e r n i n g t h e l e g a l c o n s e q u e n c e s

— t h e materiality—of the facts” is de novo. 2 2 IV The parties agree that Upshaw had no a ctu a l k n o w ledge of Hamilton’s prior a ttack o f an inmate with his b oots in a di f f e r e n t u nit years prior to Walker’s death and that Upshaw was not at the prison the n i ght Walker died. Beca u se Upshaw h ad no actual knowledge of the danger posed to Walker, any attempt to hold Upshaw l iable for a personal failure t o p r otect Walker would fail. 2 3 Instead, plaintiffs claim that Upshaw is liable for his f ailure to train and supervise subordinates and his failure to implement adequate policies. A “[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious conseq u e n ce of his

Ta yl or Indep

. Sch. D ist. , 15 F. 3d 443, 453 ( 5th Cir. 1994) ( en banc) ) ( internal quotation m ark s om itted ) ; see a l so Roberts v . Ci ty of Shrev ep ort , 397 F. 3d 287, 293 ( 5 t h C i r . 2 0 0 5) ( “The
s tan d a r d a p p licable to f ailure to train allegations agains t s up ervis ors is bas ed on that f or m unicip al liability. ”)

.

2 0 Esta te of D a v i s ex rel

. McCul l y v . Ci ty of N

. Ri chl a nd Hi l l s , 406 F. 3d 375, 379 ( 5th Cir. 2005) ( citing Gros v . Ci ty of G ra nd Pra i ri e , 209 F. 3d 431, 436 ( 5th Cir. 2000) )

.

2 1 Thom p son , 245 F. 3d at 456 ( citing Johnson v . Jones , 515 U

. S. 304, 312 ( 1995) )

.
2 2 Esta t e of D a v i s , 406 F. 3d at 379- 80 (citing Ki nney v . Wea v er , 367 F. 3d 337, 348 ( 5th Cir. 2004) ( en banc) ) ( internal quotation m ark s om itted ).

2 3 See Fa rm er v . Brenna n , 511 U

. S. 825, 834, 837 (1994)

. 9 Case: 11-20628 Document: 00512162562 Page: 9 Date Filed: 03/04/2013No. 11-20628

action.” 2 4 “ A ctions a nd decisions by officials that are m erely inept, erroneous, ineffective, or n egligent d o not amou n t t o deliberate i ndifference and do not divest officials o f qualified immunity.” 2 5 “Proof of more than a single i nstance of the lack of training or supervision causing a violation of c onstitutional r ights is normally required before such lack o f training or supervision constitutes deliberate indifference.” 2 6 “The plaintiff must generally demonstrate at least a patt e r n of similar violations

. . . [and] the inadequacy of training must be obvious and obviously likely to result in a constitutional violation.” 2 7 “[C]ulpa b ility f

o r a deprivation of rights is a t its most tenuous where a claim t urns o n a failure to train.” 2 8 “[A] s howing of deliberate indifference requires that the Plaintiffs ‘show that the failure to t rain reflects a deliberate or conscious choice to endanger constitutional r ights.’” 2 9 It is well accepted that a

“ p a t t e r n o f s i m i l a r constitutional violations by untrained e m p l o y e e s i s ‘ o r d i n a r i l y necessary’ to demonstr a te deliberate indifference for p u rposes o f failure to train.” 3 0 “Without n otice that a course o f tra i n i n g i s d eficient in a particular

2 4 Esta t e of D a v i s , 406 F .3d at 381 ( alteration in origi n al) ( quoting Brya n Cnty. , 520 U

. S. at 410) ( internal quotation m ark s om itted )

.

2 5 Id. ( quoting A lton v . Tex. A &M U ni v . , 168 F. 3d 196, 201 ( 5th Cir. 1999) ).

2 6 Thom p son , 245 F. 3d at 459 (citing Snyder v . Trep a gni er , 142 F .3d 791, 798- 99 ( 5th Cir. 1998) )

.

2 7 Id.

2 8 Conni ck v . Thom

p son , 131 S. Ct. 1350, 1359 (2011) ( citing Okl a . Ci ty v . Tuttl e , 471 U

. S. 808, 822- 23 ( 1985) ( plurality op inion) )

.

2 9 Esta te of D a v i s ex rel

. McCul l y v . Ci ty of N

. Ri chl a nd Hi l l s , 406 F. 3d 375, 383 ( 5th Cir. 2005) ( quoting Snyder , 142 F. 3d at 799)

.

3 0 Conni ck , 131 S. Ct. at 1360 ( quoting Bd. of Cnty. Com m ’rs of Brya n Cnty. v . Brow n , 520 U

. S. 397, 409 ( 1997) )

. 10 Case: 11-20628 Document: 00512162562 Page: 10 Date Filed: 03/04/2013No. 11-20628

respect, de c i s i o n m a k e r s c a n hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” 3 1 Although s upervisor l iability stems from a s u p e r v isor’s deliberate indifference to t he v iolations his training causes, 3 2 Plaintiffs do not seem to base their claim against Upshaw on the actions or inactions of Upshaw’s employees due to his training. Plaintiffs make n o attempt to show a pattern of Upshaw’s employees failing to protect inmates. I n fact, they a cknowledge that “normally, the r over on night patrol w ould come by every 15 to 20 minutes.” This suggests that Upshaw’s training was usually effective b ut t hat h is subordinates’ failure to make timely rounds th e n ight Walker died played a significant role in Walker’s death. Plaintiffs instead focus on Hamilton’s v iolence a nd the fact that U pshaw, through his training and supervision of his employees, failed to pr e v e n t it. However, “mere proof that the injury could have been prevented if t he officer had re c e i ved better o r additional training cannot, without more, support liability.” 3 3 T h e S u p reme Court has a cknowledged that “ in a narrow range of circumstances, a p a t t e r n of similar violations might not be necessary to show deliberate indifference.” 3 4 I n so acknowledging, the Court discussed t h e hypothetical posed in City o f Can t on v. Harris 3 5 in which a city would arm its police force with firearms and employ the off i c e r s t o capture fleeing felons without training the officers “in the constitutional limitation on the use of deadly

3 1 Id.

3 2 See Thom

p son , 245 F. 3d at 459.

3 3 Roberts v . Ci ty of Shrev ep ort , 397 F. 3d 287, 293 ( 5 t h Cir. 2005) ( citing Snyder , 142 F. 3d at 798)

.

3 4 Conni ck v . Thom

p son , 131 S. Ct. 1350, 1361 (2011) ( quoting Brya n Cnty. , 520 U

. S. at 409) ( internal quotation m ark s om itted )

.

3 5 489 U

. S. 378 (1989)

. 11 Case: 11-20628 Document: 00512162562 Page: 11 Date Filed: 03/04/2013No. 11-20628

force.” 3 6 In such an instance, “[g]iven the known frequency with which police

a ttempt to arrest fleeing felons and the predictability that an officer lackin g specific tools t o h a n d l e that situation will violate citizens’ rights,

. . . the unconstitutiona l consequences of failing to train could b e so patently obvious t h a t a c ity could be liable under § 1983 without p roof of a pre-existing pattern of violations.” 3 7 However, the Court s t ressed that the possibility of “single-incident liability” based on a f ailure to train is “ rare,” 3 8 a nd this circuit has s imilarly “stressed that a single incident is usually insufficient to demonstrate deliberate indifference.” 39 P l a i n tiffs’ c laims fall f ar short o f the hypothetical o ffered in Canton in which th e o f f icers were offered no t raining i n a highly dangerous situation. The evidence does not meet the requirements for si n gle-incident liability. B Similarly, demonstrating that a policy re f lects deliberate indifference

“ g enerally requires that a p laintiff demonstrate at least a pattern of simila r violations.” 4 0 Plaintiffs do not identify policies that Upshaw created or failed to enforce. Instea d , t hey rely on Upshaw’s statement that h e oversaw the Ferguson Unit to assert that Upshaw was deliberately indifferent i n failing to enforce or create an adequate policy that would h ave prevented Hamilton from having

3 6 Conni ck , 131 S. Ct. at 1361 ( citing Ca nton , 489 U

. S. at 390 n. 10)

.
3 7 Id. ( quoting Brya n C nty. , 520 U

. S. at 409) ( internal quotation m ark s om itted )

.
3 8 Id. at 1361.

3 9 E sta te of D av is ex rel

. McCul l y v . Ci ty of N

. Ri chl a nd H i ll s , 406 F. 3d 375, 383 ( 5th Cir. 2005)

.

4 0 John s o n v . D e e

p E. Tex. Reg’l N

a rcoti cs Tra

f f i cki ng Ta sk F

orce , 379 F. 3d 293, 309 ( 5th C i r . 2 0 0 4 ) ( quoting Burge v . St. Ta m m a ny Pa ri sh , 336 F. 3d 363, 370 ( 5th Cir. 2003) ) ( internal quotation m ark s om itted )

. 12 Case: 11-20628 Document: 00512162562 Page: 12 Date Filed: 03/04/2013No. 11-20628

work boots, a cellmate, a nd being i n a hot, u ncomfortable cell tha t would promote violence given his mental history. Upshaw admitted to k nowing that inmates have used their shoes to hurt ot h e r inmates, but he had no actual knowledge of Hamilton’s prior transgressions. This, however, focuses on actions o f i nmates and f ails to identify
any prior constitutional violations resulting f rom Upshaw’s policies. Again, this falls short of the standard required t o s h o w that U p s haw maintained a policy with deliberate indifference to its known or obvious consequences. 4 1 * * * For the f oregoing reasons, we REVERSE the district c ourt’s judgment and RENDER judgment in favor of Upshaw.

4 1 See i d. at 310. 13 Case: 11-20628 Document: 00512162562 Page: 13 Date Filed: 03/04/2013