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.

See Farmer v. Brennan, 511 U.S. 825, 833 (1994). 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40157

Summary Calendar

DARYL L DAVIS

Plaintiff - Appellant

v.

WAYNE N TUCKER; MICHAEL R MCDUFFIE

Defendants - Appellees

Appeals from the United States District Court 

for the Eastern District of Texas 

USDC No. 9:07-CV-19

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Inmate Daryl Davis appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 action, in which he alleges prison employees failed to protect him from

two assaults perpetrated on him by other inmates. Specifically, Davis alleges 1

that Officer Tucker told Officer McDuffie that Davis had reported McDuffie for

taking payments from inmates and that to retaliate McDuffie arranged for

United States Court of Appeals

Fifth Circuit

F I L E D

April 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-40157

Randolph v. Cervantes, 130 F.3d 727, 729–30 (5th Cir. 1997). 2

Farmer, 511 U.S. at 837 (deliberate indifference requires that “the official must both 3

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.”).

See Adames v. Perez, 331 F.3d 508, 514 (5th Cir. 2003). 4

2

members of the Mandingo Warriors prison clique to assault Davis. Davis also

brought suit against two other officers, Dennis Dezeeuw and Justin Gilbert, for

ignoring information suggesting Davis was in danger of assault and not taking

action to prevent the assaults.

The district court granted summary judgment in favor of Officers Tucker

and McDuffie. We review a district court’s grant of summary judgment de novo

and examine the evidence in the light most favorable to the nonmoving party.

2

Regarding Officer Tucker, the district court granted summary judgment because,

even assuming Tucker informed McDuffie that Davis snitched on him, there is

no evidence in the record establishing that Tucker was aware that McDuffie

would retaliate against Davis. The district court did not err and we affirm the 3

grant of summary judgment in favor of Tucker.

The district court erred, however, in granting summary judgment in favor

of Officer McDuffie. If McDuffie paid inmates to assault Davis, as Davis’

complaint alleges, this obviously would rise to a level of deliberate indifference

beyond that protected by qualified immunity. The district court, however, found 4

no competent summary judgment evidence supporting Davis’ allegation that

McDuffie ordered the hit on Davis or knew of an impending hit on Davis. The

district court’s finding ignores interoffice communications between prison

officials indicating that several informants asserted that Officer McDuffie paid

the Mandingo Warriors thirty packs of Bugler tobacco to assault Davis. It also

ignores the affidavit of inmate James Grant asserting that Officer McDuffie told

him that Tucker had chewed him out for accepting items from inmates and that
No. 08-40157

Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007). 5

See Johnson v. Johnson, 385 F.3d 503, 526–27 (5th Cir. 2004). 6

 Davis’ complaint also alleges that “Dezeeuw and the rest of the administration” failed 7

to protect him because he is a black offender. The district court did not address Davis’

discrimination claim, which we construe as an Equal Protection Clause claim. In order to

state a claim of racial discrimination under the Equal Protection Clause and § 1983, a plaintiff

must demonstrate that the governmental official was motivated by intentional discrimination

on the basis of race. Coleman v. Houston Ind. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). We

note that Davis’ bald assertion of discrimination is not supported by any evidence in the

record.

Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). 8

3

he knew of McDuffie’s conduct because Davis had “told him everything.” This

evidence raises a genuine issue of material fact with respect to whether

McDuffie violated Davis’ Eighth Amendment rights.

The district court dismissed the claims against Officers Dezeeuw and

Gilbert under 28 U.S.C. § 1915A(b)(1). We review a district court's dismissal

under § 1915A de novo. Davis’ claim against Dezeeuw faults him for not placing 5

Davis in protective custody despite Dezeeuw having evidence that inmates

intended to assault Davis. Dezeeuw, however, did not ignore the information,

but sought to obtain corroboration before taking further action. This was a

reasonable response to a potential risk. The district court did not err in 6

dismissing the claims against Dezeeuw.

7

Davis’ claim against Gilbert faults Gilbert for leaving Davis vulnerable to

the second assault when Gilbert failed take proper measures after the first

attack, such as filing disciplinary charges against the perpetrators or placing

Davis in protective custody. Allegations of negligent or unreasonable action are

not sufficient to state a claim under the Eighth Amendment. There is no 8

evidence that Gilbert was aware of facts from which he should have inferred that

not filing disciplinary charges would result in a substantial risk of Davis being
No. 08-40157

Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). 

9

4

attacked again. While we do not condone Gilbert’s inaction, it does not amount

to deliberate indifference.

 Lastly, Davis moves for appointment of counsel upon remand. An

attorney should be appointed to an indigent in a § 1983 case only if “the case

presents exceptional circumstances.” Davis argues that because some of the 9

summary judgment evidence came from confidential informants, which we

assume are other inmates, he needs counsel to access the identities and conduct

discovery from those informants. Davis has not motioned the district court to

appoint counsel, and the district court is in the best position to consider whether

circumstances of this case warrant the appointment of counsel. We will not at

this time grant Davis’ motion, but he may renew the motion in the district court.

We AFFIRM the district court’s dismissal of the claims against Officers

Tucker, Dezeeuw, and Gilbert, but REVERSE and REMAND the dismissal of the

claims against Officer McDuffie. We DENY the motion for appointment of

counsel.