IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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.

Appeal 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 interlocutory appeal from the district

court’s denial of summary judgment based on 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 and supervise his staff, was deliberately indifferent to inmate Michael

United States Court of Appeals

Fifth Circuit

F I L E D

March 4, 2013

Lyle W. Cayce

Clerk

* 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.

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Dewayne Walker’s right to be free from cruel and unusual punishment. We

reverse. 

I

Plaintiffs–Appellees Mary Walker and Michael Spencer (Plaintiffs) filed

suit under 42 U.S.C. § 1983 individually and as personal representatives of the

estate of their son, Michael Dewayne Walker (Walker), for Walker’s alleged

wrongful death while in custody of the Texas Department of Criminal Justice

(TDCJ). Walker was serving a twenty-year prison sentence after being convicted

for aggravated sexual assault of a child and was assigned to the TDCJ’s

Ferguson Unit in Midway, Texas. Walker was placed in a cell with Wilber

“Peanut” Hamilton (Hamilton). In the early morning hours the following day,

Walker was pronounced dead after having been stomped and kicked to death by

Hamilton. 

Plaintiffs sued the TDCJ, supervisory officials, and correctional officers

alleging that their failure to protect Walker resulted in his wrongful death. 

Initially, Plaintiffs advanced multiple theories of recovery including violations

of Walker’s rights under the First, Fourth, Eighth, and Fourteenth

Amendments. After multiple pretrial motions, the only remaining claims are

against three correctional officers on duty the night Walker died and Appellant

Michael Upshaw (Upshaw) for their alleged violation of Walker’s Eighth

Amendment right to be free from cruel and unusual punishment. Upshaw was

the warden at the Ferguson Unit when Walker was killed. Plaintiffs contend

that Walker’s death 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 motion for summary judgment based

on qualified immunity. The district court denied the motion. It held that

“significant factual issues prevent a determination that the supervisors’ conduct

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was objectively reasonable in light of clearly established law” and determined

that Plaintiffs were entitled to more discovery on the issue. The district court

also held that “because genuine issues of material fact remain concerning the

deficient policies implemented and enforced at the Ferguson Unit . . . , the

supervisory officials are not entitled to qualified immunity.”

Upshaw, along with the other defendants, filed an interlocutory appeal of

the denial. This court dismissed a portion 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 an actual subjective awareness of the danger to Walker and

if so, whether they were deliberately indifferent to that danger of which they

were actually subjectively aware.” 

After Upshaw was deposed, he filed a second motion for summary

judgment based on qualified immunity. Again, the district court denied his

motion. The district court held that it was “unclear whether [Upshaw] failed to

adequately train the prison staff under his supervision” and noted that

“plaintiffs have offered expert testimony that Upshaw failed to adequately train

and supervise his staff.” Though claims remain pending against the correctional

officers, only Upshaw is a party to this appeal. 

II

“The denial of a motion for summary judgment based on qualified

immunity is immediately appealable notwithstanding that such denial was

premised upon the existence of ‘[m]aterial issues of fact.’”1“We determine

whether a denial of summary judgment based on qualified immunity is

1 Thompson v. Upshur Cnty., 245 F.3d 447, 455 (5th Cir. 2001) (alteration in original)

(quoting Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).

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

“Facts

are material if they might affect the outcome of the lawsuit under the governing

law.”3 A party “challenges materiality when he contends that taking all the

plaintiff’s factual allegations as true no violation of a clearly established right

was shown.”4 “Because this court has jurisdiction only to review the questions

of law posed by the district court’s denial of summary judgment based on the

defense of qualified immunity, this court will ignore the disputes of fact, take

those facts assumed by the district court in a light most favorable to [plaintiffs],

and determine whether those facts establish an exception to the qualified

immunity defense.”5

The district court offered no assumed facts to support its conclusion that

fact issues remained concerning whether Upshaw failed to train and supervise

his staff adequately other than stating, “Plaintiffs have offered expert testimony

that Upshaw failed to adequately train and supervise his staff.” “Standing

alone, an expert’s opinion is generally not enough to establish deliberate

indifference.”6

“Ideally, the district court’s order denying summary judgment

based on qualified immunity explains what facts the plaintiff may be able to

prove at trial, i.e. what particular facts the court assumed in denying summary

2 Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 379 (5th Cir.

2005) (alteration in original) (quoting Reyes v. City of Richmond, 287 F.3d 346, 350 (5th Cir.

2002)).

3 Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th

Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

4 Estate of Davis, 406 F.3d at 379 (quoting Reyes, 287 F.3d at 351) (internal quotation

marks omitted).

5 Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 552 (5th Cir. 1997) (quoting 

Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th Cir. 1996)) (internal quotation marks

omitted).

6 Thompson, 245 F.3d at 459.

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judgment urged on the basis of qualified immunity.”7 When the district court

does not do so, we have two choices: “scour the record and determine what facts

the plaintiff may be able to prove at trial and proceed to resolve the legal issues,

or remand so that the trial court can clarify the order.”8 We do not believe

remand is necessary here. Even accepting all of Plaintiffs’ evidence as true and

considering it as a whole, the facts do not support a finding of Upshaw’s

deliberate indifference. 

The evidence, taken in the light most favorable to Plaintiffs, reflects

that Hamilton had a history of violence, attempted to kill another cellmate the

same way he used his prison-issued boots to kill Walker, and was in

administrative segregation for over six years. Hamilton’s fear of other inmates

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

and prison administrators knew of and reported Hamilton’s history of assaulting

cellmates. One inmate testified that it would take no more than thirty or forty

minutes for a fight to break out after Hamilton received a cellmate. After such

a fight, the prison staff would segregate Hamilton for fifteen days, return him

to a cell with another cellmate, and the process would repeat again. Conversely,

these same inmates reported Walker as being “laid back” and “stay[ing] to

himself.” Evidence further suggests that Walker would have been classified as

“vulnerable” under the Safe Prisons Program. Finally, inmates testified that

there were several empty cells on the 3 Row of B Block, meaning it was

unnecessary to put Hamilton and Walker in the same cell. 

As for the night of the attack, Plaintiffs offered evidence that Hamilton

warned the staff that “violence is going to happen” and that Hamilton told

officers, “If you put him in here, I’m going to kill him.” There is also evidence

7

Id. at 456.

8

Id. (citing Behrens, 516 U.S. at 842).

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that Walker 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 that one

of Upshaw’s subordinates encouraged inmates to change their reports of the

incident to state that a guard or rover completed his round every fifteen minutes

that night to “make it look good for her behalf and her officers.” 

As for prison conditions, the row on which Hamilton and Walker were

housed had no air conditioning and was farthest from the fans, making it the

hottest area of the unit in July. Upshaw testified that he was unaware of a

policy requiring inmates such as Hamilton, who may have been taking

psychotropic medication, to be housed in areas that would not be as hot as the

3 Row of B Block. Further, a guard testified that Ferguson was known as a

“gladiator” prison for being a “rough unit.” 

All parties agree that Upshaw had no actual, subjective knowledge of

Walker’s situation on the night of his death. In fact, the undisputed evidence

reveals that Upshaw was at home in bed the night of Walker’s death. With

respect to policies, Upshaw testified that as senior warden of the Ferguson Unit,

he was responsible for the “overall operation of the facility, all aspects of it.” 

When asked about the boots Hamilton wore, Upshaw explained that while 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 assaults where shoes or boots, even tennis

shoes, were used; but none . . . that resulted in the death of an offender.” 

Plaintiffs submitted an expert report by Charles Montgomery, which

concluded that Upshaw, as the primary policymaker overseeing the Ferguson

Unit, “failed to ensure that the necessary steps were taken insofar as the

supervision, training, and/or discipline of guards” and that “Upshaw’s deposition

testimony regarding [his handling of threats against cell mates was] utterly

preposterous.” Plaintiffs rely on this expert report to contend that Upshaw’s

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policy of handling an inmate’s threat against another inmate was to take

investigative and corrective measures for 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 conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”9“The

first step in the qualified immunity analysis is to determine whether the

plaintiff has alleged the violation of a clearly established federal constitutional

. . . right.”10 An official need not demonstrate that he did not violate clearly

established federal rights; this burden is placed upon the plaintiffs.11 Once the

plaintiff has discharged that burden, “the Court must then assess whether the

defendant’s conduct was objectively reasonable in light of clearly established

law.”12 

It is well established that “prison officials have a duty . . . to

protect prisoners from violence at the hands of other prisoners.”13

“It is not,

however, every injury suffered by one prisoner at the hands of another that

translates into constitutional liability for prison officials responsible for the

9 Estate of Davis, 406 F.3d at 380 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)) (internal quotation marks omitted).

10 Thompson, 245 F.3d at 457 (citing Hare v. City of Corinth, 135 F.3d 320, 325 (5th

Cir. 1998)).

11 Estate of Davis, 406 F.3d at 380 (citing Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir.

1997)).

12 Thompson, 245 F.3d at 457 (citing Hare, 135 F.3d at 326).

13 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (alteration in original) (quoting CortesQuinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)) (internal quotation marks

omitted).

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victim’s safety.”14 A prison official violates the Eighth Amendment only when

the inmate shows that (1) he was incarcerated under conditions the official knew

posed “a substantial risk of serious harm” and (2) the prison official was

deliberately indifferent to such risk.

15 An official acts with deliberate

indifference if he is “aware of an ‘excessive risk to inmate . . . safety’ and

disregards that risk.”16

Supervisory officials may not be held liable under § 1983 for the actions

of their subordinates under any theory of vicarious liability.17 When, as here,

plaintiffs allege that a supervisory official failed to train or supervise, they must

prove that (1) the official failed to train or supervise the correctional officers,

(2) a causal link exists between the failure to train or supervise and the alleged

violation of the inmate’s rights, and (3) the failure to train or supervise

amounted to deliberate indifference.18 To hold Upshaw liable on account of

inadequate policy, Plaintiffs must show “(1) that the policy itself violated federal

law or authorized or directed the deprivation of federal rights or (2) that the

policy was adopted or maintained by the municipality’s policymakers with

deliberate indifference as to its known or obvious consequences.”19 

14

Id. at 834.

15

Id.

16 Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006) (quoting Farmer, 511 U.S. at

837).

17 Thompson, 245 F.3d at 459 (citing Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.

1987)).

18

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

19 Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309

(5th Cir. 2004) (quoting Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 423 (1997))

(internal quotation marks omitted). Although Johnson speaks to municipal liability,this court

has noted “the close relationship between the elements of municipal liability and an individual

supervisor’s liability” and held that “the same standards of fault and causation should govern.”

Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 551 (5th Cir. 1997) (quoting Doe v.

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Whether the evidence sufficiently “demonstrate[s] deliberate indifference

for supervisory liability is a legal issue that this court may review on

interlocutory appeal.”20 We review de novo “the scope of clearly established law

and the objective reasonableness of those acts of the defendant that the district

court found the plaintiff could prove at trial.”21In other words, “review of the

district court’s conclusions concerning the legal consequences—the

materiality—of the facts” is de novo.22

IV

The parties agree that Upshaw had no actual knowledge of Hamilton’s

prior attack of an inmate with his boots in a different unit years prior to

Walker’s death and that Upshaw was not at the prison the night Walker died. 

Because Upshaw had no actual knowledge of the danger posed to Walker, any

attempt to hold Upshaw liable for a personal failure to protect Walker would

fail.23Instead, plaintiffs claim that Upshaw is liable for his failure 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 consequence of his

Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994) (en banc)) (internal quotation marks

omitted); see also Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (“The

standard applicable to failure to train allegations against supervisors is based on that for

municipal liability.”).

20 Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 379 (5th

Cir. 2005) (citing Gros v. City of Grand Prairie, 209 F.3d 431, 436 (5th Cir. 2000)).

21 Thompson, 245 F.3d at 456 (citing Johnson v. Jones, 515 U.S. 304, 312 (1995)).

22 Estate of Davis, 406 F.3d at 379-80 (citing Kinney v. Weaver, 367 F.3d 337, 348 (5th

Cir. 2004) (en banc)) (internal quotation marks omitted).

23 See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). 

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action.”24

“Actions and decisions by officials that are merely inept, erroneous,

ineffective, or negligent do not amount to deliberate indifference and do not

divest officials of qualified immunity.”25

“Proof of more than a single instance of

the lack of training or supervision causing a violation of constitutional rights is

normally required before such lack of training or supervision constitutes

deliberate indifference.”26“The plaintiff must generally demonstrate at least a

pattern of similar violations . . . [and] the inadequacy of training must be

obvious and obviously likely to result in a constitutional violation.”27

“[C]ulpability for a deprivation of rights is at its most tenuous where a

claim turns on a failure to train.”28“[A] showing of deliberate indifference

requires that the Plaintiffs ‘show that the failure to train reflects a deliberate or

conscious choice to endanger constitutional rights.’”29

It is well accepted that a

“pattern of similar constitutional violations by untrained employees is ‘ordinarily

necessary’ to demonstrate deliberate indifference for purposes of failure to

train.”30“Without notice that a course of training is deficient in a particular

24 Estate of Davis, 406 F.3d at 381 (alteration in original) (quoting Bryan Cnty., 520

U.S. at 410) (internal quotation marks omitted).

25

Id. (quoting Alton v. Tex. A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999)).

26 Thompson, 245 F.3d at 459 (citing Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th

Cir. 1998)).

27

Id.

28 Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (citing Okla. City v. Tuttle, 471

U.S. 808, 822-23 (1985) (plurality opinion)).

29 Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th

Cir. 2005) (quoting Snyder, 142 F.3d at 799).

30 Connick, 131 S. Ct. at 1360 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 409 (1997)).

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respect, decisionmakers can hardly be said to have deliberately chosen a training

program that will cause violations of constitutional rights.”31

Although supervisor liability stems from a supervisor’s deliberate

indifference to the violations his training causes,32 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 no attempt to show a pattern of Upshaw’s

employees failing to protect inmates. In fact, they acknowledge that “normally,

the rover on night patrol would come by every 15 to 20 minutes.” This suggests

that Upshaw’s training was usually effective but that his subordinates’ failure

to make timely rounds the night Walker died played a significant role in

Walker’s death. Plaintiffs instead focus on Hamilton’s violence and the fact that

Upshaw, through his training and supervision of his employees, failed to prevent

it. However, “mere proof that the injury could have been prevented if the officer

had received better or additional training cannot, without more, support

liability.”33 

The Supreme Court has acknowledged that “in a narrow range of

circumstances, a pattern of similar violations might not be necessary to show

deliberate indifference.”34In so acknowledging, the Court discussed the 

hypothetical posed in City of Canton v. Harris35in which a city would arm its

police force with firearms and employ the officers to capture fleeing felons

without training the officers “in the constitutional limitation on the use of deadly

31

Id.

32 See Thompson, 245 F.3d at 459.

33 Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (citing Snyder, 142

F.3d at 798).

34 Connick v. Thompson, 131 S. Ct. 1350, 1361 (2011) (quoting Bryan Cnty., 520 U.S.

at 409) (internal quotation marks omitted).

35

489 U.S. 378 (1989).

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force.”36

In such an instance, “[g]iven the known frequency with which police

attempt to arrest fleeing felons and the predictability that an officer lacking

specific tools to handle that situation will violate citizens’ rights, . . . the

unconstitutional consequences of failing to train could be so patently obvious

that a city could be liable under § 1983 without proof of a pre-existing pattern

of violations.”37 

However, the Court stressed that the possibility of “single-incident

liability” based on a failure to train is “rare,”38and this circuit has similarly

“stressed that a single incident is usually insufficient to demonstrate deliberate

indifference.”39 Plaintiffs’ claims fall far short of the hypothetical offered in

Canton in which the officers were offered no training in a highly dangerous

situation. The evidence does not meet the requirements for single-incident

liability. 

B

Similarly, demonstrating that a policy reflects deliberate indifference

“generally requires that a plaintiff demonstrate at least a pattern of similar

violations.”40 Plaintiffs do not identify policies that Upshaw created or failed to

enforce. Instead,they rely on Upshaw’s statement that he oversaw the Ferguson

Unit to assert that Upshaw was deliberately indifferent in failing to enforce or

create an adequate policy that would have prevented Hamilton from having

36 Connick, 131 S. Ct. at 1361 (citing Canton, 489 U.S. at 390 n.10).

37

Id. (quoting Bryan Cnty., 520 U.S. at 409) (internal quotation marks omitted).

38

Id. at 1361.

39 Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th

Cir. 2005).

40 Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309

(5th Cir. 2004) (quoting Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003))

(internal quotation marks omitted).

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work boots, a cellmate, and being in a hot, uncomfortable cell that would

promote violence given his mental history.

Upshaw admitted to knowing that inmates have used their shoes to hurt

other inmates, but he had no actual knowledge of Hamilton’s prior

transgressions. This, however, focuses on actions of inmates and fails to identify

any prior constitutional violations resulting from Upshaw’s policies. Again, this

falls short of the standard required to show that Upshaw maintained a policy

with deliberate indifference to its known or obvious consequences.41

* * *

For the foregoing reasons, we REVERSE the district court’s judgment and

RENDER judgment in favor of Upshaw.

41 See id. at 310.

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