* 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. 08-50072

Summary Calendar

PHILIP N. FRASIER

Plaintiff-Appellant

v.

JOHN B FOX, Warden Bastrop Federal Correctional Institution; MARNEY

GAMBLE, SIS Lieutenant, Bastrop Federal Correctional Institution; GINGER

SOSA, SIS Lieutenant, Bastrop Federal Correctional Institution; MENDOZA,

Case Managers Co-ordinator, Bastrop Federal Correctional Institution; ART

MANUEL, Unit Manager, Bastrop Federal Correctional Institution; KAREN

WEATHERS, Inmate Systems Manager, Bastrop Federal Correctional

Institution; GREIGER, Case Manager of Austin Unit, Bastrop Federal

Correctional Institution; UNKNOWN CORRECTIONS OFFICER, on duty in R

& D at Bastrop Federal Correctional Institution on the day that Plaintiff was

transferred; Individually and in their Official Capacities

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CV-768

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

November 20, 2008

Charles R. Fulbruge III

Clerk
No. 08-50072

2

This is an appeal from the district court’s grant of summary judgment to

severalFederal Bureau of Prisons (“BOP”) employees on plaintiff Philip Frasier’s

Eighth Amendment claims asserted under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). For the reasons

stated herein, we AFFIRM.

I. BACKGROUND

Frasier’s claims arise from his participation in an investigation into

steroids and narcotics smuggling at the federal correctional institute where he

was imprisoned in Bastrop, Texas (“Bastrop FCI”). In December 2005, Frasier

was moved from Bastrop FCI for his personal safety. Because of the nature of

the transfer, Frasier was not able to pack his personal effects. He alleges Unit

Manager Art Manuel told him that his property had been secured and would be

packed and forwarded to him. Frasier states that when he arrived at the new

facility, he discovered that his personal property, which contained contact

information for his family, had not been secured or packed and was, in fact, lost.

Three months later, Frasier’s wife began receiving threatening phone calls at her

home in Mexico. Frasier believes that his property fell into the hands of the

criminal gangs being investigated, who in turn used the information to harass

and threaten his family. 

Frasier brought this lawsuit asserting that Defendants violated his

constitutional rights. He sought money damages in the amount of $400 per day

since the harassment began—the amount Frasier says he has paid since that

time to hire a private security firm to protect his family. Frasier also sought an

injunction prohibiting Defendants from retaliating against him for filing his

lawsuit, and he sought an order ensuring that the threats against him and his

family be taken into account during his immigration proceedings. Frasier did

not allege that any harm had befallen him or his family.

The district court granted Defendants’ motion for summary judgment,

holding that Defendants were entitled to qualified immunity because Fraiser
No. 08-50072

3

failed to offer any evidence to establish that any of the named Defendants acted

with deliberate indifference to a known, substantial risk to his safety.

II. DISCUSSION

We review de novo the district court’s grant of summary judgment. XL

Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir.

2008); see also FED. R. CIV. P. 56(c). “Summary judgment is appropriate [if the

summary judgment evidence shows] ‘that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of

law.’” Mello v. Sara Lee Corp., 431 F.3d 440, 443 (5th Cir. 2005) (quoting FED.

R. CIV. PROC. 56). “[W]e ‘review the evidence and inferences to be drawn

therefrom in the light most favorable to the non-moving party.’” FDIC v.

Laguarta, 939 F.2d 1231, 1236 (5th Cir. 1991) (quoting Baton Rouge Bldg. &

Constr. Council AFL-CIO v. Jacobs Constructors Inc., 804 F.2d 879, 881 (5th Cir.

1986)). “A sufficient showing cannot rest on mere allegations or denials in the

pleadings, but must set forth specific facts that establish an issue for trial.”

Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987)

(internal quotations omitted). After those reasonable inferences are made, there

is an issue of material fact only if a rational trier of fact could find for the

non-moving party. See Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir.

1999).

A qualified immunity defense requires a two step analysis. The first

question is whether the facts alleged, “[t]aken in the light most favorable to the

party asserting the injury . . . show the officer’s conduct violated a constitutional

right.” Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Freeman v. Gore, 483

F.3d 404, 410 (5th Cir. 2007). “If no constitutional right would have been

violated were the allegations established, there is no necessity for further

inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. If a

constitutional violation is found, the qualified immunity inquiry continues and

examines whether the constitutional rights violated were clearly established to
No. 08-50072

4

the extent that a reasonable person would be aware of those rights. Hathaway

v. Bazany, 507 F.3d 312, 320 (5th Cir. 2007).

The treatment a prisoner receives in prison and the conditions under

which he is confined are subject to scrutiny under the Eighth Amendment.

Farmer v. Brennan, 511 U.S. 825, 832 (1994). Specifically, prison officials have

a duty to protect prisoners from violence at the hands of other prisoners. Id. at

833. But not every injury suffered by one inmate at the hands of another creates

constitutional liability. To establish a constitutional violation, the plaintiff must

show that officials acted with deliberate indifference to his safety. Id.

To find that an official is deliberately indifferent, it must be proven

that the official knows of and disregards an excessive risk to inmate

health or safety; the 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.

Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). If an inmate shows only that

officials acted negligently, his constitutional claims fail. Neals v. Norwood, 59

F.3d 530, 533 (5th Cir. 1995).

In this case, Frasier has failed to demonstrate that Defendants were

deliberately indifferent to Frasier’s safety. As the district court noted, Frasier’s

emergency transfer out of Bastrop FCI occurred because of Defendants’ concern

for his safety. Even if some of the Defendants assured Frasier that his property

would be secured, as he alleges, Frasier does not explain how any of the

Defendants could have been aware of facts from which an inference could be

drawn that a substantial risk of serious harm existed or that any of the

Defendants actually drew the inference. See Neals, 59 F.3d at 533. Frasier does

not even contend that he drew such an inference himself until after he had

already been relocated to the federal correctional institute in Allentown,

Pennsylvania (“Allentown FCI”), and his property had been lost. Also, there is

no suggestion in the record—including in Frasier’s own pleadings—that he

advised prison officials of the sensitive nature of his property prior to his
No. 08-50072

5

removal from Bastrop FCI or of any danger posed by the possible loss of this

property should it have fallen into the hands of the gangs being investigated. 

While the failure to secure and pack Frasier’s property during the transfer may

have been negligent, it did not rise to the level of deliberate indifference to

Frasier’s safety. Accordingly, even viewing the evidence in the light most

favorable to Frasier, Defendants were entitled to judgment as a matter of law on

Frasier’s claims arising from any failure by Defendants to secure his personal

property. See Neals, 59 F.3d at 533.

In the district court, Frasier also sought an injunction prohibiting

Defendants from retaliating against him for filing his lawsuit, and he sought an

order ensuring that the threats to him and his family be taken into account

during his immigration proceedings. Because Frasier has failed to brief these

issues in this court, they are deemed abandoned. See Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987). In addition, because Fraiser is no longer

incarcerated at Bastrop FCI, his request for injunctive relief is moot. See, e.g.,

Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001).

Frasier also complains on appeal about his current incarceration at

Allenwood FCI. Frasier contends that the BOP housed an inmate from Bastrop

FCI in the same unit as Frasier at Allenwood FCI. The inmate allegedly was a

member of one of the gangs that Frasier helped investigate while at Bastrop

FCI. However, Frasier has failed to cite any specific threat to him from the

other inmate at Allenwood FCI. Defendants’ knowledge that Frasier acted as an

informant is insufficient to prove that they have knowledge of a substantial risk

to Frasier’s safety. Longoria v. Texas, 473 F.3d 586, 594-95 (5th Cir. 2006). In

addition, none of the named Defendants appear to have any control over the

conditions of Frasier’s confinement at Allenwood FCI. 

Because Frasier has not established that any of the named Defendants

have acted with deliberate indifference to a known, substantial risk to his safety,
No. 08-50072

6

Frasier has failed to state a constitutional claim. Accordingly, Defendants were

entitled to summary judgment on their claim of qualified immunity.

III. CONCLUSION

We DENY as moot Frasier’s motion to expedite the appeal, and we

AFFIRM the district court’s judgment.