*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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-41288

_______________________

DAVID CROSS,

Plaintiff-Appellee,

versus

JAMES A. COLLINS, etc., et al.,

 Defendants,

TOMMY CROW; THOMAS, Major; R. LOTT, Officer; R. JORDAN, Officer;

CRAIG PLAYER, Lieutenant,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(G-94-CV-174)

_________________________________________________________________

April 2, 1999

Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Warden Crow, Major Thomas, Lt. Player, and Officers Lott

and Jordan appeal the magistrate judge’s denial of their motion for

summary judgment on the basis of qualified immunity from David

Cross’s claim of a violation of the Eighth Amendment for failure to

protect him from an assault by other inmates which occurred on
 

1Cross, properly, does not contest our appellate jurisdiction

to determine whether, as a matter of law, appellants were entitled

to summary judgment on qualified immunity. Behrens v. Pelletier,

516 U.S. 299, 313 (1996); Colston v. Barnhart, 130 F.3d 96, 98 (5th

Cir. 1997).

 

2The magistrate judge correctly ruled that Cross has no

constitutional entitlement to a particular custody classification,

and Cross has not appealed that ruling.

April 17, 1993. Because the record contradicts the magistrate

judge’s finding that genuine, material fact issues exist concerning

these officials’ knowledge of the risk posed to Cross, we reverse.1

To establish a failure-to-protect claim, an inmate 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). “In order to act with

deliberate indifference, ‘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.’” Id.

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A prison

official acts with deliberate indifference “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,

511 U.S. at 847. The relevant question in this case, which we

particularly explored at oral argument as well as with a close

review of the record, is the amount of knowledge, if any, that the

prison officials had concerning a substantial risk of serious harm

to Cross.2 

Cross was incarcerated in TDCJ-ID in March 1993 for

robbery and met with an inmate classification committee, including
3

Warden Crow, on April 9. Despite his record of prior convictions,

including one for murder, the Committee placed him in medium

custody, a less restrictive classification than had initially been

recommended.

On April 13, Cross sent an I-60 form to Ms. Fulton and to

Warden Price, neither of whom are appellants, stating that he was

scared of medium custody, was homosexual, and wanted to be placed

in a “protection/homosexual tank.” There is no other evidence that

Cross informed any prison officials or that the inmates knew he was

homosexual. On April 17, Cross was assaulted by inmates chanting

anti-white phrases. After being treated for the injuries, he asked

and was immediately transferred to a protected environment and then

to another prison unit.

No admissible evidence exists of Warden Crow’s knowledge

of a substantial risk of harm to Cross. Warden Crow’s affidavit,

submitted in support of the defendants’ motion for summary

judgment, asserted that he was not “aware of any known danger” to

Cross. His only involvement was that he sat on the Classification

Committee which recommended that Cross be placed in medium custody.

Cross confirmed in his deposition that his only conversation with

Crow occurred at the classification hearing. Cross failed to

produce any facts in response to the summary judgment motion which

demonstrate that Warden Crow received the I-60, was otherwise

informed of Cross’s concern that he might be attacked because he

was homosexual, or was aware of any other “facts from which the

inference could be drawn that a substantial risk of serious harm”
4

to Cross existed. See Farmer, 511 U.S. at 837. Despite the

magistrate judge’s finding that Cross’s allegations created an

issue of material fact that precluded summary judgment, the summary

judgment record reveals no such factual dispute in relation to

Warden Crow’s knowledge.

Cross’s deposition testimony also confirmed that he had

no conversations with Thomas, Lott, Jordan, or Player before the

April 17 incident regarding any threats that he had received.

While Cross asserted in his affidavit that two guards were not at

their posts during the assault and that Major Thomas was in charge

at the time and asked Cross after the incident where the tank

bosses were, his affidavit does not mention Player, Lott, or Jordan

by name. As with Warden Crow, Cross failed to produce any facts in

response to the summary judgment motion which demonstrate that

Thomas, Player, Lott, or Jordan were aware of “facts from which the

inference could be drawn that a substantial risk of serious harm”

to Cross existed. Farmer, 511 U.S. at 837.

According to the record, the only persons Cross put on

notice of any concern he had for his safety in medium custody were

Warden Price and Ms. Fulton. Warden Price was dismissed without

objection from Cross, and Cross did not name Ms. Fulton as a

defendant. Any knowledge of a risk of harm by Price and Fulton is

not attributable to the other defendants.

Because Cross failed to meet his burden of producing

adequate summary judgment evidence, the judgment of the magistrate
5

judge is REVERSED and judgment is RENDERED granting the motion for

summary judgment.

REVERSED and RENDERED.