## REVISED, February 2, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60415

_____________________

JIMMY NEWTON,

Plaintiff-Appellee/Cross-Appellant,

versus

LEE ROY BLACK, ET AL.,

Defendants,

JAMES BREWER,

Defendant-Appellant/Cross-Appellee,

TOMMY ROSS,

Defendant/Cross-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________________________________________________ January 13, 1998

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

With regard to this action for 42 U.S.C. § 1983 and state law

claims, in which Jimmy Newton, a state prisoner, alleged that he

was beaten by another inmate as a result of, i nter alia

, the

negligence of Lieutenant James Brewer, a prison official, the

primary issue at hand is whether, under Mississippi law, Lieutenant

Brewer had a ministerial duty to report a threat against Newton and- 2 -

is, therefore , not entitled to qualified immunity. Lieutenant

Brewer appeals the $10,000 judgment for Newton on his state-law

negligence claim, maintaini ng that he is entitled to qualified

immunity; Newton cross-appeals the ad equacy of those damages and

the dismissal of his Eigh th Amendment failure-to-protect claim.

Concluding that Lieutenant Brewer is entitled to qualified immunity

under Mississippi law, and that the district court pr operly

dismissed Newton’s other claims, we AFFIRM IN PART

, and REVERSE and

RENDER IN PART

.

I.

Newton’s pro se and in forma pauperis civil rights complaint,

filed in mid-1991 against various Mississippi State Penitentiary

officials, including Lieutenant Bre wer, pursuant to § 1983 and

state law, al leged that the defendants’ deliberate indifference,

failure to provide adequate protection, and gross neg ligence

resulted in his being bea ten by an unidentified inmate. In an

amended complaint, he alleged that he had reported to Lie utenant

Brewer that he had been threatened by inmate Melvin Walls. After

conducting a Spears hearing, see Spears v. McCotter , 766 F.2d 179

(5th Cir. 1985), the magistrate judge determined that Newton had

failed to show that the defendants had acted with del iberate

indifference, and recommended that the compla int be dismissed as

frivolous, pursuant to 28 U.S.C. § 1915(d) (now § 1915(e)).

The district court rejected that recommendation, because the

magistrate judge had failed to consider Newton’s amended complaint,

including the allegation that he had relayed Walls’ threats to at- 3 -

least one of the defendants. Therefore, the case was referred to

the magistrate judge for further proceedings.

In a second amended complaint, Newton was represented by

counsel. Named defendants were Steve Puckett (Superintendent of

the Mississip pi State Penitentiary), Captain Tommy Ross, and

Lieutenant Brewer; and Newton added a claim for denial of adequate

medical treatment.

At an evidentiary hearing before the magistrate judge, Newton

testified that, on 6 March 1991, between 7:00 a nd 8:00 a.m., an

inmate (whom he could not then identify by name, but who was later

identified as Walls during Newton’s brief meeting with Lieutenant

Brewer) threatened Newton because he would not give Walls a cup of

coffee; that, at around 10:00 a.m., he reported the threat to

Lieutenant Brewer and told the Lieutenant t hat he wanted either

Walls or himself transferred; that, around 10:30 a.m., while he

(Newton) was talking to Lieutenant Brewer, Walls walked into the

Lieutenant’s office and told the Lieutenant that he would hurt

Newton if Lieutenant Brewer did not return Walls’ property that had

b een confiscated; that Lieutenant Brewer had been more concerned

about Newton finishing his cleaning duties than about Walls’

threat; a nd that, at approximately 11:00 a.m., while he (Newton)

was watching television, Walls assaulted him, striking him in the

mouth and face with a broom handle.

When asked what Lieutenant Brewer could have done to prevent

the assault, Newton responded that the officials should have known

that Walls was a threat to inmates housed in his unit; and that- 4 -

Lieutenant Brewer could have looked into the situation further and

transferred him or Walls to another unit.

On cross-examination, Newton testified that, after Lieutenant

Brewer talked to Walls, the Lieutenant ordered Walls to pack his

belonging s, because Lieutenant Brewer was going to transfer him;

but that, prior to the assault, after Walls had packed his

belongings, another Officer told him to unpack.

Walls testified that his dispute with Newton sprang from

Walls’ walking across the floor Newton was mopping on the morning

of the incident (as noted, Newton said the dispute was instead over

coffee); that he (Walls) told Lieutenant Brewer that he wanted to

be transferred and, if not, “somebody was going to get hurt”; and

that he was angry with Lieutenant Brewer because the guards had

confiscated an earring from him (Walls). According to Walls, when

a prisoner threatens someone “[t]hey are supposed to move one ...

of the inmates to a different section”. On cross-examination,

Walls denied having been in Lieutenant Brewer’s office with Newton

that morning.

Captain Ross testified that Lieutenant Brewer was working

under his supervision on the day of the incident; that, also preassault, Lieutenant Brewer did not report any incident involving

Walls and Newton; that, also prior to the assault, he was aware

that Walls was a “trouble maker”, but not that he was violent; and

that, with respect to the incident, everything was done that could

have been done, because there is no way to prevent a spur-of-themoment assault.- 5 -

Captain Ross admitted, however, that the attack would have

been prevented had Walls been moved pre-assault; and that, if Walls

had told him he was going to hurt another inmate, he would have put

him in the holding cell. Regarding such Department of Corrections

policy, Captain Ross testified as follows:

Q Now, you would agree wi th me that the

policy of the [Mississippi Department of

Corrections] on March 6th, 1 991 [the day of

the incident], if an inmate advised an officer

that he was going to hurt another inmate, that

eit her the inmate making the threat or the

inmate being threatened should be removed

, correct?

A Even the most inexperienced staff member

at Parchman would immediately take action.

Q Should take action, correct?

A They would take action.

Q And if an officer knew of a threat being

made, he should also file [a rules viol ation

report], is that correct, against the inmate

making the threat?

A If there was evidence that the threat was made, he would do the incident report and the

[rules violation report] and isolate,

whichever one.

Q You remember telling me in your deposition that an investigation into a threat

should be started a s soon as the threat is

made or is made known to the officer?

A Immediately.

Q No time should be wasted?

A No time wasted.

Q Because if any time is wasted, it could

result in da n ger to the inmate or another

officer, correct?

A Yes, sir.- 6 - Q And if

... an officer did not immediately

start an investigation and knew that a threat

was made, he would be derelict in his duties,

correct?

A If it was a serious threa t and it was a

thr e at upon another inmate I would say he

would be derelict in his duty; yes, sir.

(Emphasis added.)

Lieutenant Brewer, the administrator of the unit where Newton

and Walls were housed on the day of the incident, testified that,

on that day, he confiscated an earring from Walls at around 7:45

a.m.; and that, at approximately 8:30 a.m., Walls told him that he

wanted to be moved if he could not have his earring back and “would

be a problem” if he was not moved. Lieutenant Brewer testified

that he did not understand Walls to be making a threat, but merely

talking “in the heat of anger”. According to Lieutenant Brewer, he

told Walls to pack his bag, and Walls did so; he talked to Walls

again, and explained that Walls would lose the opportunity to get

an education if he moved to another unit; and Walls understood and

was willing to stay.

Lieutenant Brewer also testified that Walls did not mention

New ton’s name; and that Newton did not tell him that Walls had

threatened him. Lieutenant Brewer testified further that, prior to

the assault, he did not know about Walls’ reputation for violence;

but that h e considered all offenders dangerous and violent

.

Regarding Department of Corrections policy when one inmate

threatens another inmate, Lieutenant Brewer testified as follows:

Q ... the policy concerning when an inmate

threatens another inmate ?- 7 - A Right.

Q Or an officer?

A Right.

Q Is to transfer one of them?

A Right.

....

Q Okay. So you called [sic] somebody and

say, I have got a prisone r who has made a

threat and I need to transfer that prisoner or

put the other one in protective custody,

right?

A As I stated, I never heard Inmate Walls

threaten anyone.

....

Q I am asking you what the [Mississippi

Department of Corrections] policy is when you

have a problem with an inmate, he threatens

somebody? What do you do with that inmate?

You transfer him, right, or put the other

one in protective custody, right?

A The only thing that I can do is request

that he be transferred. I can’t transfer

him .... [I]f ... one makes a threat, I will

call my supervisor

.

Q Okay. And tell them that prisoner made a

threat and you need to transfer one?

A If he threatens another inmate I will

call [my supervisor] and he will recommend the

next step that I take

.

(Emphasis added.) But, Lieutenant Brewer testified that he had no

reason to call his supervisor or request that Walls be transferred,

because he was not aware of Walls’ thre at against Newton and did

not feel that Walls was a threat.- 8 -

Steve Puckett, Superintendent of the Mississippi State

P enitentiary on the day of the incident, testified as follows

regarding the Department of Corrections policy on inmate threats:

Q What was the policy o r procedure as it

pertained to the transfer of inmates who have

made threats of violence against other inmates

or against a guard?

A

... i f an inmate was threatened and he

reported it, they wou ld be separated. The

inmate being threatened could possibly be

placed on pro tective custody through

classification, or he could have red tagged

the inmate who threatened him where they would

not be housed in the same housing unit.

Q So am I correct in stating that when an inmate makes

a threat against another inmate and an officer is advised

of that, that officer should take immediate action?

A Yes, sir.

Q To transfer the inmate making the threat?

A Yes, si r. The officer s hould notify a

s upervisor what is going on and steps s hould

be taken to separate the inmates; yes, sir.

Q An officer who failed to take immediate

a ction to separate an inmate who has ma de a

threat against another inmate would be

derelict in his duty, correct?

A Yes, sir, yes, sir.

Q And the policy or procedu re is made up

and instigated by the [Mississippi Department

of Corrections] for the safety of the

prisoners, as well as the officers, correct?

A Yes, sir.

....

Q And an o fficer who is aware that an

inmate has threatened another prisoner and

allows him near that prisoner would also be

derelict in his duty, correct?

A Yes, sir, I would say so.- 9 -

(Emphasis added.)

Following the hearing, the ma gistrate judge concluded that

Newton’s § 1983 claims for deliberate indifference and failure to

provide adequate medica l care were without merit. He concluded,

however, that Captain Ross and Lieutena nt Brewer had acted

negligently in failing to protect Newton from Walls’ threats, and

re commended a $10,000 judgment against them on that state law

claim.

The district court adopted the dismissal-recommendation

respecting the § 1983 claims. On the other hand, for the

negligence claim, the court held (1) that Captain Ross was entitled

to qualified immunity under Mississippi law because the re was no

evidence that he knew of the threat; but (2) that, because

Lieutenant Brewer had a mandatory obligation to inform his

supervisor of Walls’ threat, which the court held to be a

ministerial function, and failed to do so, qualified immunity did

not shield him from liability. Accordingly, a $10,000 judgment was

awarded Newton on his negligence claim against Lieutenant Brewer;

the other claims were dismissed.

II.

Lieutenant Brewer challenges the denial of qualified immunity;

Newton, the dismissal of his § 1983 failure-to-protect claim and

the adequacy of the negligence claim damages. (Newton does not

raise the inadequate medical care claim.) It goes without saying

that we review the district court’s factual findings for clear

error and its legal conclusions, including on state law issues, de- 10 -

novo

. F E D

. R. C IV

. P. 52(a); Salve Reg ina College v. Russell , 499

U.S. 225, 238 (1991); e .g.

, Johnson v. Gambrinus Co./Spoetzl

Brewery , 116 F.3d 1052, 1056 (5th Cir. 1997).

A.

In claiming an erroneous application of Mississippi qualifiedimmunity law, Lieutenant Brewer asserts that the evidence did not

show that he had a duty positively imposed by law ( a ministerial

duty) to repo rt a threat of violence by an inmate; and that,

because he was instead performing a discretionary function, he is

entitled to such immunity.

Under Mis sissippi law, its officials sued for damages in a

civil action enjoy qualified immunity from tort liability w hen

performing discretionary official functions. E .g., Evans v.

Trader

, 614 So. 2d 955, 957 (Miss. 1993); see also Webb v. Jackson

,

583 So. 2d 946, 949-50 (Miss. 1991). However,

a governmental offici al has no immunity to a

civil action for damages if his breach of a

legal duty causes injury and (1) that duty is

ministerial in nature, or (2) that duty

involves the use of discretion and the

governmental actor greatly or substantially

exceeds his authority and in the course

thereof causes harm, or (3) the governmental

actor commits an intentional tort

. Beyond

that, a government official has no immunity

when sued upon a tort that ha s nothing to do

with his official position or decision-making

function and has been committed outside the

course and scope of his office.

Grantham v. Mississippi Department of Corrections

, 522 So. 2d 219,

225 (Miss. 1988) (emphasis on “or” in original; remaining emphasis

added).- 11 -

The Mi ssissippi Supreme Court has stated that “[t]he most

important criterion” in determining whether an act is ministerial

i s whether “the duty is one which has been p ositively imposed by

law and its performance required at a time and in a manner or upon

conditions which are specifically designated, the duty to perform

under the co nditions specified not being dependent upon the

officer’s judgment or discretion .” Poyner v. Gilmore

, 158 So. 922,

923 (Miss. 1935) (internal quotation marks omitted) (emphasis

added); see also Mohundro v. Alcorn County

, 675 So. 2d 848, 853

(Miss. 1996); Sorey v. Kellett

, 849 F.2d 960, 963 (5th Cir. 1988).

Along thi s line, a discretionary duty or function involves

“personal deliberation, decision and judgment”. Davis v. Little

,

362 So. 2d 642, 643 (Miss. 1978) (internal quotation marks and

citation omitted); see also State for Use & Benefit of Brazeale v.

Lewis

, 498 So. 2d 321, 322 (Miss. 1986) (emphasis added) (qualified

immunity for the discretionary acts of public officials has evolved

“[i]n order to allow [them] to participate freely and without fear

of retroactive liability in r isk-taking situations requiring the

exercise of sound judgment ”); Poyner v. Gilmore

, 158 So. at 923

(duty is discretionary if it requires the official to use personal

judgment and discretion in the performance of that duty); Glover v.

Donnell , 878 F. Supp. 898, 901 (S.D. Miss. 1995) (emphasis added)

(“it is precisely this type of official act, one in which the

official’s judgment is implicated

, which the qualified immunity for

discretionary acts is meant to protect”).- 12 -

In sum, and as outlined above, because Newton’s negli gence

claim is not for an intentional tort, Lieutenant Brewer is entitled

to qualified immunity (1) unless his duty to report Walls’ threat

was a ministerial duty; or (2) if the duty was instead

discretionary, he substantially exceeded his authority. S ee Webb

,

583 So. 2d at 950.

1.

The district court found that Newton had reported to

Lieutenant Brewer that Walls had threatened Newton with violence;

and concluded that, as a result, the Lieutenant had a “mandatory,

nondiscretionary obli gation to inform his supervisor of Walls’

threatened attack”. Lieutenant Brewer does not challenge the

finding that Newton reported Walls’ threat to him (Lieutenant

Brewer). Instead, he contends that the testimony regarding

Department of Corrections policy, in the absence of any evidence of

a written policy or statutory authority, is insufficient to

establish a duty “positively imposed by law”. He contends further

that, even assuming that the law positively imposed a duty, that

duty was triggered only by serious threats

, with his having

discretion to decide which threats were serious enough to warrant

further action.

Neither the distric t court nor Newton cited any Mississippi

authority for the proposition that a mandatory duty “positively

imposed by law” can be established in the absence of any evidence

of a written policy or statutory or other authority. S ee State for

Use of Russell v. McRa e , 152 So. 826, 827 (Miss. 1934) (court- 13 -

relied upon statutes to conclude that, alth ough determining

n e cessity for repairs was discretionary, supervisor’s acts of

tearing down and rebuilding bridge were done in capacity of a

statutory road commissioner engaged in performance of ministerial

duty); Poyner v. Gilmore

, 158 So. at 923 (court relied upon statute

in finding that chancery clerk had mandatory duty to attach

certificate to claim presented for probate); Sykes v. Grantham

, 567

So. 2d 200, 211 (Miss. 1990) (to determine whether parole board

members lost thei r qualified immunity by failing to perform

minister i al duties, court examined whether they complied with

statute setting forth their funct ions); M cQueen v. Williams

, 587

So. 2d 918, 922 (Miss. 1991) (noting that plaintiff “cited no

guideline or procedure—statutory or otherwise—to show that the

Sheriff’s decision-making in the performance of his duties involves

no discretion”); Coplin v. Francis

, 631 So. 2d 752, 755 (Miss.

1994) (construction of county road bridges in accordance with

specifications mandated by s tatute for width and guard rails is

ministerial function); T.M. v . Noblitt , 650 So. 2d 1340, 1343-45

(Miss. 1995) (c ourt relied upon statute in determining whether

public elementary school principal had a ministerial duty to report

child abuse); Mohundro

, 675 So. 2d at 854 (because the minimum

standards for construction of culverts had be en satisfied, there

was no breach of a ministerial duty).

The only cases found in which ministerial functions were not

required by statute are distinguishable, because the performance of

those functions required no exerc ise of decision-making in the- 14 -

course of carrying out official duties. See Davis v. Little , 362

So. 2d at 644 (act of driving a county vehicle on county business

does not involve discretionary decision-making process); Barrett v.

Miller

, 599 So. 2d 559, 567 (Miss. 1992) (although determining

probable cause for issuance of a warrant is a discretionary

function, execution of search warrant is a ministerial function);

Stokes v. Kemper County Board of Supervisors

, 691 So. 2d 391, 394-

95 (Miss. 1997) (driving a vehicle is a ministerial act).

No doubt, the testimony establishes that there is some form of

Department of Corrections policy regarding inmate threats; but, the

exact parameters of that policy, as well as the precise duties of

a prison official who has knowledge of such a threat, are unclear.

For example, the duties described by the testimony included

starting an i nvestigation, reporting the threat to a supervisor,

separating the involved inmates, and transferring one of the

inmates to another unit. Moreover, it is far from “positively

established” that the policy imposes such duties for any and all

threats, regardless of how se rious the official believes them to

be.

Indeed, the testimony reflects otherwise. As quoted s u pra,

Lieutenant Brewer’s supervisor, Captain Ross, test ified that an

officer would be derelic t in his duty if he did not immediately

start an investigation after becoming aware of a “ serious threat ”.

(Emphasis added.) And, Lieutenant Brewer testified that, inmates

often say things on the spur of the moment, but without r eally

meaning anything, and that is why he talked to Walls; that, after- 15 -

he talked to Walls, he did not perceive a threat to anyone; and

that he took no action, because he had no reason to feel that Walls

was going to attack Newton that day. There was no evidence of any

guidelines for assessment of the nature and seriousness of inmate

threats.

The Mississippi State Penitentiary is a dangerous place. As

noted by the Superintendent in his testimony, the facility at

Parchman is the maximum security facility for the Mississippi

Department of Corrections, with approximately 8 0 percent of its

approximate 6,000 inmates being “violent offenders”. Accordingly,

inmate threats there must be taken qu ite seriously. But,

concomitantly, threats are part of the penitentiary’s daily fare.

And such threats come in all forms and multiple variations and

situations. If certain, specific action must be taken by prison

officials as to every one of those threats, then, surely, it would

seem that the policy would be clearly and precisely stated in

writing. As noted, there is no evidence that it was at the time of

the incident.

In the light of this testimony, and especially in the light of

t here being no evidence of a written policy or of case law,

statutory or other authority, the district court erred in

concluding that the policy imposed a ministerial duty on Lieutenant

Brewer to report Walls’ threat to Lieutenant Brewer’s supervisor,

regardless of wheth er Lieutenant Brewer thought the threat was

serious enough to justify such action. Restated, a duty to report

every threat was not “positively imposed by law”.- 16 -

In this regard, in that the law did not pos itively impose a

duty to report every threat, an officer’s determination of whether

a threat was serious enough to warrant further, as well as

different types of, action involves t he exercise of judgment and

is, therefore, discretionary. See Davis v. Little , 362 So. 2d at

643 (internal quo tation marks and citation omitted) (acts that

require “personal deliberation, decision and judgment” are

discretionary); T.M.

, 650 So. 2d at 1343 (“A duty is discretionary

if it requires the official to use her own judgment and discretion

in the performance thereof”); id

. at 1345 (determination of whether

there is “reasonable cause” to report suspected incident of child

abuse is discretionary ; but once determination is made that

reasonable cause exists, official has no discretion not to report

it).

As it turns out, Lieutenant Brewer was mistaken in his

assessment of the seriousness of the threat; but, obviously, that

does not deprive him of qualified immunity for the exercise of his

discretion in making that assessment. S ee id. at 1343 (quoting

Gregoire v. Biddle , 177 F.2d 579, 581 (2d Cir. 1949) (“There must

indeed be means of punishing public officers who have been truant

to their duties; but that is quite another matter from exposing

such as have been honestly mistaken to suit by an yone who has

suffered from their errors.”), cert. denied

, 339 U.S. 949 (1950)).

2.

Therefore, concerning this discretionary duty, into play comes

the above-described second possible basis for no qualified- 17 -

imm unity: greatly exceeding authority. In that regard, Newton

does not contend, nor is there any evidence, that Lieutenant Brewer

“greatly or substantially exceed[ed]” this discretionary decisionmaking authority in determining (albeit mistakenly) that Walls’

threat was not serious enough to warrant reporting it to his

supervisor. G

rantham

, 522 So. 2d at 225. Accordingly, Lieutenant

Brewer is entitled to qualified immunity.

B.

On cross-appeal, Newton presents two issues. Simply put, our

conclusion that Lieutenant Brewer is entitled to state-law

qualified imm unity puts to rest Newton’s claim regarding the

adequacy of awarded damages as to the Lieutenant.

Remaining is only Newton’s constitutional failure-to-protect

claim. In that regard, he asserts that the defendants violated his

Eig hth Amendment rights by failing to protect him from the

threatened attack by Walls.

Newton must show that he was “incarcerated under c onditions

posing a substantial risk of serious harm and that prison officials

were deliberately indifferent to his ne ed for protection”. S ee

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)) (emphasis

added). Whether a prison official had the requisite knowledge of

a substantial risk is a question of fact

. Id

.- 18 -

Along this line, the district court found that Lieutenant

Brewer did not suspect that the risk of harm to Newton was

substantial. In that regard, it noted the Lieutenant’s testimony

that Walls “calmed down after [the Lieutenant and Walls] discussed

the ramifications of [Walls] causing problems in [the] Unit". The

court also found that Lieutenant Brewer had “ responded to Walls’

anger and did not believe that Newton was in danger.” Newton falls

far short of demonstrating that tho se findings were clearly

erroneous.

III.

For the foregoing reasons, that portio n of the judgment

dismissing Newton’s § 1983 claims and his state law negligence

claim as to all defendants but Lieutenant Brewer is AFFIRMED ; and

that portion of the judgment granting relie f against Lieutenant

Brewer on that negligence claim is REVERSED

, with judgment RENDERED

in favor of Lieutenant Brewer.

AFFIRMED IN PART; REVERSED and RENDERED IN PART