IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40843

WILLIAM DEXTER WHITE,

Plaintiff-Appellant,

versus

RONALD C. FOX, Major; ROBERT E. TAYLOR, Captain, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC Case No. 6:05-cv-00026-JKG

Before REAVLEY, ELROD and GRAVES, Circuit Judges.

PER CURIAM:*

Appellant, William Dexter White,Texas prisoner # 545599, confined in the

Texas Department of Criminal Justice Correctional Institutions Division (“TDCJ

- ID”), appeals, proceeding pro se, the magistrate judge’s summary judgment

dismissal of his civil action for deprivation of rights – failure-to-protect and due

process – complaint pursuant to 42 U.S.C. § 1983. We AFFIRM in part, and

REVERSE and REMAND in part.

United States Court of Appeals

Fifth Circuit

F I L E D

February 28, 2012

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.

Case: 10-40843 Document: 00511770597 Page: 1 Date Filed: 02/28/2012
I. Facts and Procedural History

A. White’s Complaint and Allegations

White alleged that Major Ronald C. Fox endangered his life by telling

Lewis Barnes, a prisoner at the Michael Unit of the TDCJ - ID in Tennessee

Colony (a Dallas suburb), Texas, that White was an informant. He further

contended that Major Fox deliberately disregarded his safety by placing him in

the general population, where he was subject to vicious assaults because he was

labeled a “snitch.”

In March 2003, Major Fox allegedly told Barnes that White had given

incriminating statements about Barnes. In April 2003, TDCJ - ID transferred

White to the Darrington Unit of the TDCJ - ID in Rosharon (a Houston suburb),

Texas. In August 2004, Robin Earl Frazier, a Darrington Unit prisoner,

overheard, according to his own sworn affidavit, another prisoner state that he

had learned that White was an informant, i.e., a snitch. In September 2004,

White was allegedly assaulted at the Darrington Unit. Through October 2004,

White was treated for facial lacerations and bone fractures.

In addition, White alleged that disciplinary proceedings, which Captain

Robert E. Taylor conducted, regarding a December 2002 attempted extortion

charge, resulted in the loss of good time credits and violated his due process

rights. He contended that he did not receive adequate notice of the hearing or

of the evidence to be used against him. White further alleged that he was not

allowed to call witnesses or present rebuttal evidence. He also claimed that

prison officials failed to provide a complete written record of the disciplinary

hearing, then later falsified the record. White asserted that he was forced to rely

upon the incomplete record when he appealed the conviction, then prison

personnel “altered” the record to “cover up” the constitutional violation. White

further requested that the disciplinary case be stricken from his files.

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In sum, White alleges that: 1) he was denied due process; 2) the

disciplinary charge was false; and 3) the actions of prison officials resulted in

hardship, including physical harm and permanent disfigurement. 

B. Evidentiary Hearing

1. The Claim against Captain Taylor

On August 18, 2005, the magistrate judge conducted an evidentiary

hearing pursuant to 28 U.S.C. § 636(c) (which establishes the jurisdiction and

some of the powers of magistrate judges). A prison representative appeared at

the evidentiary hearing. White testified that the present instance involved

problems at the Michael Unit, which began with the disciplinary charge of

extortion. The gravamen of White’s claim is that the disciplinary hearing record

was originally produced with blanks and then altered after he filed his

administrative appeal. White contended that the extortion charge was false and

made in retaliation for his filing of grievances and his actions as a grievance

author. White indicated that prior to the extortion charge, he had filed

grievances on behalf of himself and others against prison officials. White further

argued that Captain Taylor denied him due process throughout the proceeding. 

He contended that: 1) he was not allowed to call witnesses, 2) the hearing notice

was inadequate and failed to state how he had attempted the extortion, 3) he did

not receive copies of the evidence, 4) he did not have 24 hours to review the

evidence, and 5) he was denied the right to introduce evidence. 

2. The Claim against Major Fox

White testified that Major Fox knew that other prisoners were aware that

White was an informant: 

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THE COURT: But you think it happened to you once you got to

Darrington and this snitch jacket went with you? 1

MR. WHITE: Yes, ma’am. In fact, I know it did because when I got there

Barnes was -- [Warden Avairo] Vasquez [sic], senior warden Vasquez, he’s

senior warden on the Darrington Unit, I carried the letter with me, the

affidavit that you have that’s a exhibit in here. I think it’s Exhibit K, if

I’m not mistaken. But at any rate, I carried it over there with me to show

classification when I got there. They said don’t worry about it, Vasquez

already knows about you and the craft shop work. Barnes was Vasquez’s

personal craft shop worker when Vasquez was warden on the Michael[]

[sic] Unit. And he said he already knew about it before I got there.

THE COURT: That Vasquez already knew that you had snitched on

Barnes?

MR. WHITE: Yes, ma’am.

THE COURT: So Vasquez, once you got to the Darrington Unit, then

retaliated against you for snitching?

MR. WHITE: Well, I’m not really saying he did. I mean, I’m just saying

that it was already there. It was already known to administration I was

supposed to be a snitch.

In summary, White contended that he was assaulted by other prisoners

at the Darrington Unit because of the informant or “snitch” label.

C. White’s First Appeal to this Court

On September 12, 2005, the magistrate judge issued an opinion and order

dismissing with prejudice as frivolous White’s claims against Major Fox and

Captain Taylor, as well as all claims arising at the Michael Unit. On September

19, 2005, White appealed to this court for the first time. On October 6, 2008,

this court affirmed in part and reversed in part. This court stated that:

On remand, the district court should decide White’s §1983 claim to the

extent that White seeks damages for the disciplinary board’s failure to

provide him with a written statement of the evidence relied on during the

“Snitch jacket” is a phrase connoting a reputation for being an informant. It is not an 1

actual jacket (as in a garment). Jacket comes from the “file jackets” that were used by the

authorities prior to computerization of records. The phrase finds its roots in the fear of the

unwritten code that exhorts prisoners not to inform on a fellow prisoner.

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disciplinary proceeding. The court should also consider the “snitch” claim

and the alleged harm that resulted from this designation. We caution,

however, that the damages cannot encompass the “injury” of being

deprived of good-time credits, and must stem solely from “the deprivation

of civil rights.”

White v. Fox, 294 F. App’x 955, 963 (5th Cir. 2008). 

D. Limited Remand to the Magistrate Judge

When this case returned to the magistrate judge, the litigants filed a

number of motions, including motions to recuse and retract consent to the

magistrate judge, motion for leave to file their original answer and jury demand,

three motions for default judgment, two motions to strike, motion for

preliminary injunction, motion to produce documents, etc. Finally, White filed

two motions for summary judgment on July 29, 2009 and on October 26, 2009. 

Likewise, Major Fox and Captain Taylor each cross-moved for summary

judgment on January 15, 2010. Major Fox argued that he neither designated

nor used White as an informant, and that White’s allegations regarding this

issue failed to establish deliberate indifference. Captain Taylor argued that he

was entitled to summary judgment because White did receive a statement of the

evidence that was used against him at the disciplinary hearing, and, although

additional information was ultimately added to the form after the hearing, the

added information was not new. On March 8, 2010, the magistrate judge

granted Captain Taylor’s and Major Fox’s motions for summary judgment and,

again, dismissed White’s complaint with prejudice. White v. Fox, 2010 U.S. Dist.

LEXIS 20433, *27-28 (E.D. Tex. March 8, 2010). White, again, appealed to us. 

We, again, affirm in part, and reverse and remand in part.

II. Discussion

A. Standard of Review

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This court reviews de novo a district court’s dismissal of a complaint on a

motion for summary judgment. Berquist v. Wash. Mut. Bank, 500 F.3d 344, 348

(5th Cir. 2007); Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). The

magistrate judge should construe “all facts and inferences in the light most

favorable” to the prisoner. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)

(citation omitted). The magistrate judge may not make credibility

determinations or weigh the evidence in granting summary judgment. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Cook v. Miss. Dep’t of Human

Servs., 108 F. App’x. 852, 856 (5th Cir. 2004). A genuine factual dispute will

preclude a grant of summary judgment. Anderson, 477 U.S. at 242; see also

Bowden v. City of Electra, 152 F. App’x. 363, 368 (5th Cir. 2005) (observing that

the evidence must be believable by a reasonable trier of fact). 

B. Captain Taylor’s Motion for Summary Judgment

White’s chief claim against Captain Taylor is that, at the conclusion of the

disciplinary hearing, White received a statement of the evidence that was

subsequently altered, thus violating his due process rights. White, 294

Fed.Appx. at 960. He contends that the magistrate judge granted summary

judgment “solely upon the fact that Captain Taylor did provide appellant a

written record at the conclusion of the hearing that included the evidence relied

upon to find him guilty.” Finally, White argues that he clearly demonstrated

that the alteration of the record harmed him. In ruling for Captain Taylor, the

magistrate judge relied upon Ponte v. Real, 471 U.S. 491, 497 (1985), which

concluded that “prison officials may be required to explain, in a limited manner,

the reason why witnesses were not allowed to testify, but that they may do so

either by making the explanation a part of the ‘administrative record’ in the

disciplinary proceeding, or by presenting testimony in court if the deprivation

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of a ‘liberty’ interest is challenged because of that claimed defect in the hearing.” 

(emphasis added). 

Due process requires, among other things, thatthe prisoner indisciplinary

proceedings receive a written statement of the decision and the evidence relied

on by the disciplinary board. See Wilkinson v. Austin, 545 U.S. 209, 225 (2005). 

In Wilkinson, the United States Supreme Court unanimously upheld a state’s

policy, which provided sufficient procedural protection of the prisoner’s liberty

interest to comply with the Fourteenth Amendment’s due process requirements

at the highest security prisons, known as “Supermax” facilities. Id. Pursuant

to the policy that the Court examined in Wilkinson, the prisoner is provided with

written notice summarizing the conduct or offense triggering the hearing at least

48 hours prior to the hearing. Id. at 216. At the time of notice, the prisoner also

has access to the form, which details why the hearing was initiated. Id. The

prisoner may attend the hearing, may “offer any pertinent information,

explanation and/or objections . . .” and may submit a written statement. Id.

Here, Captain Taylor provided White with a TDCJ Disciplinary Report

and Hearing Record at the conclusion of the hearing on or about December 30,

2002, and White received another, more detailed copy on or about February 21,

2003. “While the documents which White furnished do appear to show that

additional information was added to the hearing record, White makes no

showing that this alleged ‘alteration’ comprises a constitutional violation.” 

White, 2010 U.S. Dist. LEXIS 20433, at *13. The magistrate judge added:

[T]he form which White received at the conclusion of the hearing satisfied

the constitutional requirement of due process by informing him of the

evidence which was used against him, which was the officer’s report. This

provided White with an adequate statement of the evidence so as to allow

him to appeal the conviction through the grievance procedure, which he

did. Although White says that had he been given the later form, his

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disciplinary case would have been overturned, he offers nothing to support

this speculation; in fact, the record shows that White received this form

before he filed his Step Two grievance, which grievance was not successful

in securing a reversal of the disciplinary action. White’s claim against

Captain Taylor is without merit. 

Id. at *16. This court agrees. Therefore, the magistrate judge’s grant of Captain

Taylor’s motion for summary judgment is affirmed.

C. Major Fox’s Motion for Summary Judgment

White challenges the magistrate judge’s grant of summary judgment in

favor of Major Fox. He argues that Major Fox labeled him a “snitch” or

informant when he was a prisoner at the Michael Unit. White further asserts

that the informant designation was made known to prisoners at the Darrington

Unit, and as a result, he was assaulted after TDCJ - ID transferred him there. 

White relies upon Barnes’ statements and Frazier’s affidavit to support his 42

U.S.C. § 1983 claim. 2

1. Duty to Protect Prisoners

The law imposes a statutory duty to protect prisoners from violence from

other prisoners. 18 U.S.C. § 4042(a)(3) (2011) (“The Bureau of Prisons, under

the direction of the Attorney General shall . . . provide for the protection,

instruction, and discipline of all persons charged with or convicted of offenses

 In its entirety, 42 U.S.C. § 1983 states: 2

Every person who, under color of any statute, ordinance, regulation, custom, or usage,

of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper proceeding for redress,

except that in any action brought against a judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was

violated or declaratory relief was unavailable. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Columbia shall be considered to be a statute

of the District of Columbia.

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against the United States.”). The United States Supreme Court, in a seminal

case, definitively held “that a prison official may be held liable under the Eighth

Amendment for denying humane conditions of confinement only if he knows that

inmates face a substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S.

825, 847 (1994). Even prior to Farmer, the Court proclaimed that there is a

right to safety in prison. See Davidson v. Cannon, 474 U.S. 344, 352 (1986) (“In

particular, it includes a prisoner's right to safe conditions and to security from

attack by other inmates.”).

Chief Justice William H. Rehnquist wrote:

[W]hen the State by the affirmative exercise of its power so restrains an

individual’s liberty that it renders him unable to care for himself, and at

the same time fails to provide for his basic human needs -- e.g., food,

clothing, shelter, medical care, and reasonable safety -- it transgresses the

substantive limits on state action set by the Eighth Amendment and the

Due Process Clause.

DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 200 (1989)

(emphasis in original); see also Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.

1982) (Judge Richard A. Posner observed: “[i]f the state puts a man in a position

of danger from private persons and then fails to protect him, it will not be heard

to say that its role was merely passive; it is as much an active [role] as if it had

thrown him into a snake pit.”); Leonardo v. Moran, 611 F.2d 397, 398-99 (1st

Cir. 1979) (“prison officials have a duty to protect prisoners from violence at the

hands of other prisoners”); Butler v. Dowd, 979 F.2d 661, 675 (8th Cir. 1992)

(“This Court has clearly held that prisoners have a constitutional right to be free

from . . . attacks by other inmates.”); McGill v. Duckworth, 944 F.2d 344, 347

(7th Cir. 1991); Hendricks v. Coughlin, 942 F.2d 109 (2d Cir. 1991); Vosburg v.

Solem, 845 F.2d 763 (8th Cir. 1988).

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2. Failure-to-Protect Claim

To establish a failure-to-protect claim, a prisoner must show that he was

“incarcerated under conditions posing a substantial risk of serious harm and

that prison officials were deliberately indifferent to his need for protection.” 

Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). The plaintiff need not

produce direct evidence of the official’s knowledge but rather may rely on

circumstantial evidence. Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003). To

survive summary judgment on a failure-to-protect claim, a prisoner is required

to produce sufficient evidence of: 1) substantial risk of serious harm, 2) a prison

official’s deliberate indifference to that risk, and 3) causation. Carter v.

Galloway, 352 F.3d 1346 (11th Cir. 2003) (citation omitted); see also Radick v.

Hardiman, 588 F. Supp. 932 (S.D. Tex. 1984) (deliberate indifference to violent

prisoner attacks against other prisoners gives rise to liability for violation of

Eighth Amendment rights); West v. Rowe, 448 F. Supp. 58 (1978) (when a

prisoner’s repeated requests for help place appropriate officials on notice of a

life-endangering situation, a constitutional duty of care arises binding such

officials to take reasonable measures to ensure that prisoner’s safety). This

court recognized that “an individual who divulges secret information about his

gang might be a target of violence by fellow gang members,” and therefore may

have a failure-to-protect claim. Adames, 331 F.3d at 514-515 (“[A] prison official

acts with deliberate indifference if he helps create a risk to an inmate’s health

or safety.”). To raise a fact issue, this court required the plaintiff to show that

the defendant “was aware of facts that could lead him to infer that . . . gang

members had learned about the conversation between” the defendant and the

plaintiff-informant. Id.

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Here, White asserts that: 1) Major Fox told Barnes that White had

provided incriminating information against Barnes; 2) prisoners at the

Darrington Unit learned that White was a snitch from prisoners at the Michael

Unit; and 3) White was assaulted at the Darrington Unit shortly thereafter. 

White supported his assertions with affidavits sworn to under the penalty of

perjury by two prisoners, Barnes and Frazier. On March 17, 2003, Barnes first

attested that:

On March 5th I was called to the front office on Michael Unit by

Major Fox, on this day he tells me that inmate Dexter White and

another inmate Valentine had wrote statements against me

concerning security keys. I told the major at this time I did not

know either inmate. This is a very serious matter, especially being

behind bars. (“Barnes’ First Statement”).

In addition to Barnes’ First Statement, Barnes wrote a letter to White

dated March 27, 2003 – 10 days later – which was “Received April 1, 2003" and

stated (as transcribed by the magistrate judge):

Well, I’m going to rewrite my legal work for you again. I was taken to the

major’s office and was told I was getting a case for writing to you or as the

major said, I had lied to him about you. I told him the truth, I didn’t know

you before he put me on 11 Building, right beside you for two weeks, plus

you are only doing my legal work for me. The major said you are the one

who put me in here, starting four months ago. I don’t even know why I

tried to argue with him. How can he talk about someone lying. You know,

and I know, we didn’t know each other before 11 Building just a few weeks

ago. He had the letter I had wrote to you about my Step One on my case,

with the grievances I signed. Said you are getting a transfer for the help

you have provided. Well looks like you got what you wanted if that’s the

case, but Dexter I know better, you didn’t know me four months ago and

I didn’t know you, so I need this legal work, I don’t know how to do it.

I’m going to explain once again what all took place plus sign the

grievances. The major can’t take any more from me, when the craft shop

stuff is gone they don’t need to ever be coming around. Ho! I should have

a lawyer from Palestine by next week. Also tell Rick the major said that

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Dwight Rawlinson was a friend of his and he wasn’t going to help me. I

know that is a lie too, that man can only see out of one eye and has 10%

only in it because of those people, he hate TDC for what they did. Plus I’m

not going to stop until the truth comes out, either they can get it or I’m

going to get help for them to get it right. I’m not going to allow no one to

set me up and I don’t do nothing about it. 

White, 2010 U.S. Dist. LEXIS 20433, at *17-18 (“Barnes’ Second Statement”).

In support of Major Fox’s summary judgment motion, he stated, in

relevant part, in his affidavit that:

I was a Major employed at the Michael Unit in Tennessee Colony, Texas. 

As Major I was the ranking officer in charge of all general population

offenders assigned to the Michael Unit.

Offender White alleges I was deliberately indifferent to his safety when I

falsely labeled him a snitch and had him transferred to another unit

where he was subjected to violent assaults. However, at no time did I

label White a ‘snitch.’ Snitch is a negative slang term offenders use to

describe an informant, TDCJ uses the term confidential informant. 

Contrary to White’s allegations I never used him as a confidential

informant or labeled him as one. I prefer not to use confidential

informants and can only recall two instances where I ever used one in all

my years with TDCJ. Neither informant was Offender White. Further,

I have never told anyone I was using Offender White as a confidential

informant.

White also claims that being a ‘snitch’ was the reason he was assaulted at

the Darrington Unit. However, I have not contact with any of the officers

or offenders housed at the Darrington unit which is in Rosharon, Texas

about two-hundred miles from the Michael Unit. At no time did I inform

anyone at the Darrington Unit that Offender White was a snitch. I do not

why or even if, he was assaulted at the Darrington Unit.

(Emphasis added.) The magistrate judge granted summary judgment because

she found that Barnes’ statements were unpersuasive and relied on inadmissible

hearsay. To the contrary, Barnes’ First and Second Statements indicate that,

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as White alleged, Major Fox said to Barnes that White had provided

incriminating information to Major Fox against Barnes. In addition, White

testified at the evidentiary hearing that Major Fox placed White’s life in danger

by telling Barnes that White was an informant. Therefore, at a minimum,

Barnes’ statements and White’s testimony and allegations contradict the

affidavit submitted by Major Fox, thus creating a genuine dispute of material

fact. Fed. R. Civ. P. 56(a).

Furthermore, the magistrate was in err when it disregarded as hearsay

Barnes’ statement that Fox told Barnes that White was a snitch. First, by

definition, Fox’s statement was non-hearsay as it constitutes a party-opponent

admission. See Fed. R. Evid. 801(d)(2)(A). Second, Fox’s statement was not

necessarily offered for the truth of the matter asserted–it was not offered to

prove White was a snitch. Instead, it was offered to show the effect on the

listener–it was offered to prove that whoever heard White was a snitch believed

that he was a snitch, and, therefore, wanted to harm him. See Faulkner v. Super

Valu Stores, 3 F.3d 1419, 1434 (10th Cir. 1993). Thus, it did not matter whether

White was a snitch. It only mattered that Fox made a statement that caused

others to believe White was a snitch. Accordingly, the magistrate erred when it

disregarded Barnes’ statement as hearsay.

Likewise, the magistrate judge disregarded Frazier’s affidavit, which

expresses that Frazier overheard a prisoner at the Darrington Unit state that

he learned from prisoners at the Michael Unit that White was an informant:

On or about August 29, 2004, I was in the chow line at the Darrington

Unit, and I overheard offender Laven tell two of his homeboys that, “I got

a letter from the homies on Michael, and there is a snitch named Dexter

White over here now-I’m going to smash his snitching-bitch-ass good.”

I advised Dexter [White] of this fact, and he tried to get some assistance

from the Unit administration - to no avail.

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The magistrate judge considered Frazier’s affidavit “nothing beyond sheer

speculation.” At a minimum however, Frazier’s affidavit provides a link between

Major Fox’s alleged statement to Barnes and the location of White’s alleged

attack. The magistrate judge also discounted Frazier’s affidavit because the

affidavit was executed in 2010, approximately six years after Frazier heard the

prisoner’s statement, and ultimately determined that Frazier’s affidavit was “too

remote and speculative to stand as viable opposition” to Major Fox’s summary

judgment motion. However, that is basically a credibility determination, which

should not factor into summary judgment. Crowe v. Henry, 115 F.3d 294, 296

(5th Cir. 1997) (“The presiding judge is not to weigh the evidence nor engage in

credibility determinations.”) (citing Anderson, 477 U.S. at 248-49). Indeed, the

length of time between the incident and the affidavit is not a legal basis to

completely disregard it on summary judgment. 

The magistrate judge also found that Frazier’s affidavit was not based on

Frazier’s personal knowledge. Fed. R. Civ. P. Rule 56(c)(4) (“An affidavit or

declaration used to support or oppose a motion must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the

affiant or declarant is competent to testify on the matters stated.”) (emphasis

added). However, the affidavit does contain Frazier’s assertion that he heard

another Darrington Unit prisoner state that Michael Unit prisoners considered

White to be an informant and that he intended to assault White.

Construing “all facts and inferences in the light most favorable” to White,

see Dillon, 596 F.3d at 266, he produced evidence (Barnes’ First and Second

Statements) that contradicted Major Fox’s statement that he did not tell anyone

that White was a snitch. White also produced evidence (Frazier’s affidavit),

which connects the snitch label from the Michael Unit and the subsequent

assault at the Darrington Unit. If Major Fox informed another prisoner that

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White acted as an informant, then whether Major Fox acted with deliberate

indifference to White’s safety by creating a risk of assault is a question for the

fact-finder. See Adames, 331 F.3d at 510-15 (analyzing a claim that a prison

official acted with deliberate indifference by informing prisoners that another

prisoner provided incriminating information).

When reviewing the evidence most favorably toward White, it is clear that

he has produced sufficient evidence of: 1) substantial risk of serious harm, 2)

Major Fox’s deliberate indifference to that risk, and 3) causation. Those alleged

events occurred in rapid succession. White was allegedly assaulted on

September 20, 2004. Thus, the alleged assault occurred shortly after August

2004, when Frazier’s affidavit indicates that he heard another prisoner state

that he had learned from prisoners at the Michael Unit that White was an

informant and that the prisoner planned to assault White. White received

treatment for his injuries, which included facial trauma, on September 22 and

October 29, 2004. See Estelle v. Gambelle, 429 U.S. 97, 103-04 (1976) (“An

inmate must rely on prison authorities to treat his medical needs; if the

authorities fail to do so, those needs will not be met.”); see also DeShaney, 489

U.S. at 198-199 (“[B]ecause the prisoner is unable by reason of the deprivation

of his liberty to care for himself, it is only just that the State be required to care

for him.”) (citing Estelle, 429 U.S. at 103-04). Given Barnes’ statements and

Frazier’s affidavit, which contradict Major Fox’s affidavit, there is a genuine

dispute of material fact. 

III. Conclusion

The judgment of the magistrate judge is AFFIRMED with respect to

White’s due process claim against Captain Taylor, and REVERSED and

REMANDED with regard to White’s failure-to-protect claim against Major Fox

for further proceedings consistent with this opinion. IT IS FURTHER

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ORDERED that White’s motion for imposition of sanctions, to strike Major Fox’s

and Captain Taylor’s briefs, and for costs is DENIED. See Fed. R. Civ. P.

11(c)(5)(A).

REAVLEY, Circuit Judge, dissenting:

I would affirm, because there is nothing in the record to raise an issue that

Major Fox was consciously indifferent to White’s safety by telling another

prisoner that White was a snitch or confidential informant. The prisoner Barnes

said that he was told by Major Fox that White and another prisoner had made

statements against Barnes. That means Major Fox was investigating some

conduct of Barnes and had revealed that White had written something adverse

to the facts as claimed by Barnes. We have nothing more. That does not say

Major Fox was dishonest and actually labeled White as a snitch.

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