Clarence Schreane v. Joe Keffer

Case: 12-30689 Document: 00512705539 Page: 1 Date Filed: 07/21/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 12-30689 July 21, 2014

Lyle W. Cayce

CLARENCE SCHREANE, Clerk

Plaintiff - Appellant

v.

TAMECHIA BEEMON, also known as Beaumont,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:09-CV-1252

Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Clarence Schreane, proceeding pro se, brought suit pursuant to Bivens v.

Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971), against Tamechia Beemon, a corrections officer at the federal

penitentiary in which Schreane was incarcerated, asserting that Beemon

violated his Eighth Amendment rights. Schreane raises two Eighth

Amendment failure-to-protect claims. First, he alleges that Beemon was

deliberately indifferent to a substantial risk of serious harm when she violated

* 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: 12-30689 Document: 00512705539 Page: 2 Date Filed: 07/21/2014

No. 12-30689

a prison policy against allowing inmates to enter units to which they were not

assigned. Second, he raises a “snitch” claim, alleging that Beemon labeled him

a “snitch” to other inmates and thus exposed him to a substantial risk of

serious harm. The district court granted summary judgment on qualified

immunity grounds in favor of Beemon. For the reasons that follow, we

AFFIRM the judgment of the district court.

BACKGROUND

I.

In 2007, Schreane arrived at United States Penitentiary, Pollock to serve

his criminal sentence. Beemon was a corrections officer who worked at the

prison during Schreane’s incarceration there. In January 2008, the prison’s

warden, Joe Keffer, issued a memorandum for both inmates and staff that

reiterated various prison policies, including policies regarding acceptable

attire for inmates, policies prohibiting certain decorations in cells and, as

relevant here, a policy that inmates were not allowed to be present in units to

which they were not assigned. The memorandum was posted throughout the

prison and served as “a reminder to all inmates of some basic rules and

regulations which must be followed,” citing recent “assaults with weapons” and

destruction of property that had taken place in the prison. Keffer emphasized

in a declaration that he “instructed inmates and staff, both verbally and in

writing, that inmates should not be allowed to enter housing units to which

they are not assigned.”

On April 22, 2008, Beemon, who had formerly been posted to a different

unit, was assigned to supervise Schreane’s unit. Schreane claims that he

began noticing that Beemon would allow inmates from the unit she used to

guard to enter his unit, in violation of the prison’s policy against allowing

inmates to enter units to which they were not assigned. Schreane was

concerned that Beemon also “entertained” a specific inmate from the unit she

2

Case: 12-30689 Document: 00512705539 Page: 3 Date Filed: 07/21/2014

No. 12-30689

used to guard and would enter into long conversations with him rather than

supervise Schreane’s unit attentively. Schreane states that, on April 27 or 28,

he privately informed the manager of his unit, Patrick Townsend, that Beemon

was allowing inmates assigned to other units to visit Schreane’s unit.

According to Schreane, Townsend told him that he would speak to Beemon.

Townsend, for his part, says that he did not recall this initial conversation with

Schreane. Schreane claims that, on or about April 29, he also informed Keffer

about Beemon’s conduct. Schreane explained to Keffer that, several months

prior, two inmates had been stabbed or beaten by inmates assigned to other

units. Keffer says that he did not recall this conversation.

On May 1, 2008, Schreane says that he spoke to Beemon directly

“regarding her favoritism” in allowing certain prisoners to visit from other

units, explaining that inmates were “becoming irritated by her actions.”

According to Schreane, Beemon responded that she had worked in corrections

for fourteen years and “appreciat[ed] his concern of safe housing.” Beemon

says that she did not recall any conversation with Schreane about inmates

assigned to other units entering the unit.

As Schreane describes it, later that same evening, Beemon again allowed

an inmate from the unit she used to guard to visit Schreane’s unit. While

Beemon and the inmate were engaged in conversation, a fight erupted in

Schreane’s unit, and Townsend ordered a lockdown. Townsend was in the unit

at the time, and Schreane approached him to once more discuss Beemon’s

conduct. While in the common area, Schreane says that he “discretely”

informed Townsend of the situation—that Beemon had allowed an inmate from

another unit to enter Schreane’s unit—and he identified the offending inmate

for Townsend. Townsend recalls that Schreane raised the issue with him but

did so “very loudly” and “in close proximity to other inmates.” Townsend states

3

Case: 12-30689 Document: 00512705539 Page: 4 Date Filed: 07/21/2014

No. 12-30689

that he told Schreane “to quiet down and discuss this complaint with [him] in

a proper setting.”

Schreane claims that Beemon must have told the inmate assigned to

another unit—the one whom Schreane had identified for Townsend—of

Schreane’s complaints and labeled Schreane a “snitch.” That inmate allegedly

informed some of his friends in Schreane’s unit that Schreane had been

consulting with prison authorities, and, that night, an inmate from Schreane’s

unit confronted Schreane in the activity room about “talking to the police” and

then assaulted him. Prison medical records reflect that, at 8:45 P.M. on May

1, 2008, Schreane suffered from a laceration of the lip “secondary to blunt force

trauma,” seemed disoriented as to time and place, and could not remember the

assault.

Beemon presents a different version of the events at issue. She

acknowledges that she was aware of the prison’s policy against allowing

inmates to enter units to which they were not assigned and notes that “inmates

have been known to enter other housing units to which they’re not assigned in

order to steal property, hide from other inmates, or even assault other

inmates.” Beemon states that she “always did her best” to prevent inmates

assigned to other units from entering Schreane’s unit. Beemon maintains that

she never knowingly permitted inmates from other units to enter Schreane’s

unit and that, whenever she noticed inmates from other units, she acted

immediately to remove them. As described, Beemon did not recall Schreane’s

speaking to her about his concerns prior to the assault. Beemon denies

informing other inmates that Schreane was a “snitch” or knowing that

Schreane was at risk of an assault. She further states that she found Schreane

bleeding on a stairway after his assault and triggered an alarm to signal for

help.

4

Case: 12-30689 Document: 00512705539 Page: 5 Date Filed: 07/21/2014

No. 12-30689

II.

Schreane later filed this Bivens action in federal court, naming, as

relevant here, Beemon as a defendant. The magistrate judge construed

Schreane’s complaint to raise, under the Eighth Amendment, both: (1) a

failure-to-protect claim, in Beemon’s failure to prevent the inmate assault by

allowing inmates assigned to other units to enter Schreane’s unit in violation

of the prison’s policy against this; and (2) a “snitch” claim, in Beemon’s

allegedly labeling Schreane a “snitch,” which he claims resulted in his assault.

Schreane sought to compel the government to turn over surveillance

video footage from the prison, which Schreane argued would show that while

guarding Schreane’s unit Beemon had willfully violated the policy against

allowing inmates to enter units to which they were not assigned. The

government turned over footage of the May 1, 2008 assault on Schreane but

provided no further video. As the government and the prison’s electronics

technician explained, the prison’s cameras automatically record over

surveillance video after a period of fifteen to thirty days unless a prison official

identifies specific footage relating to an incident warranting investigation.

Other than the assault, investigators had not sought to preserve any

surveillance footage. Schreane argued that he was entitled to an evidentiary

inference of spoliation because the destruction of the missing footage indicated

that it was harmful to Beemon. The magistrate judge, however, denied

Schreane’s spoliation claim.

Beemon moved for summary judgment, raising a qualified immunity

defense. Ultimately, the district court granted Beemon’s motion and dismissed

Schreane’s claims with prejudice. The district court determined that Schreane

had “offered no summary judgment evidence whatsoever” in responding to

Beemon’s declaration denying that she had labeled him a “snitch” or had

deliberately allowed inmates assigned to other units to enter Schreane’s unit

5

Case: 12-30689 Document: 00512705539 Page: 6 Date Filed: 07/21/2014

No. 12-30689

in disregard of Schreane’s safety. 1 Schreane then filed a timely notice of

appeal.

STANDARD OF REVIEW

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

apply the same standard as the district court. Dameware Dev., L.L.C. v. Am.

Gen. Life Ins. Co., 688 F.3d 203, 206 (5th Cir. 2012). Summary judgment is

appropriate if the movant demonstrates “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). “[T]he party moving for summary judgment must

demonstrate the absence of a genuine issue of material fact, but need not

negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks omitted).

“We construe all facts and inferences in the light most favorable to the

nonmoving party when reviewing grants of motions for summary judgment.”

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal quotation marks

omitted); see also Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam).

1 We note that the district court should have considered Schreane’s verified complaint

on summary judgment. Allegations in a verified complaint may serve as summary-judgment

evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). To verify the complaint, a plaintiff

may include “a signed declaration under penalty of perjury that the foregoing is true and

correct.” Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (internal quotation marks

omitted). Specific statements in the complaint, to be available as evidence, must also meet

the requirement, contained in Federal Rule of Civil Procedure 56, that “they be within the

personal knowledge of the affiant, that they otherwise would be admissible into evidence,

and that the affiant be competent to testify.” Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th

Cir. 1998); see FED. R. CIV. P. 56(c)(4).

In this case, Schreane’s complaint concludes with an executed “Plaintiff’s

Declaration,” which reads: “I declare under penalty of perjury that all of the facts represted

[sic] in this complaint is true, and correct, 28 U.S.C. 1746.” Because this statement

reproduces almost exactly the verification language this court described in Hart, see 343 F.3d

at 765, we conclude that the district court should have considered Schreane’s verified

complaint as summary-judgment evidence.

6

Case: 12-30689 Document: 00512705539 Page: 7 Date Filed: 07/21/2014

No. 12-30689

DISCUSSION

I. Spoliation Claim

“Under the spoliation doctrine, a jury may draw an adverse inference

that a party who intentionally destroys important evidence in bad faith did so

because the contents of those documents were unfavorable to that party.”

Whitt v. Stephens Cnty., 529 F.3d 278, 284 (5th Cir. 2008) (internal quotation

marks omitted). An adverse inference of spoliation can be relevant on

summary judgment. See Byrnie v. Cromwell, Bd. of Educ., 243 F.3d 93, 107

(2d Cir. 2001) (“In borderline cases, an inference of spoliation, in combination

with some (not insubstantial) evidence for the plaintiff's cause of action, can

allow the plaintiff to survive summary judgment.” (internal quotation marks

omitted)). “The Fifth Circuit permits an adverse inference against the

destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’”

Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005). The

defendant’s adherence to standard operating procedures in destroying the

evidence, however, may counter a contention of bad faith conduct. See Vick v.

Tex. Emp’t Comm’n, 514 F.2d 734, 737 (5th Cir. 1975). We review the district

court’s decision whether to permit an evidentiary inference of spoliation for

abuse of discretion. King v. Ill. Cent. R.R., 337 F.3d 550, 553, 555 (5th Cir.

2003).

In this case, there is no dispute that the surveillance tape that Schreane

wanted was erased. In response to Schreane’s request for the footage leading

up to the day of his attack, the government produced all that remained: the

few minutes of Schreane’s assault on May 1, 2008. The government also

provided the affidavit of an electronics technician at the prison, Derrick Cox,

who described the prison’s general policy of automatically recording over

surveillance video that has not been marked for investigation within fifteen to

thirty days of its recording. Cf. id. at 556 (noting that defendant’s compliance

7

Case: 12-30689 Document: 00512705539 Page: 8 Date Filed: 07/21/2014

No. 12-30689

with a federal preservation regulation, after which “the records are destroyed

as a part of routine file maintenance,” “further demonstrat[ed] that [the

defendant] lacked a ‘bad faith’ motive for [the records’] destruction”).

Schreane claims that Beemon or some other prison official purposefully

destroyed the footage in bad faith because it would have shown damning

evidence of Beemon allowing inmates assigned to other units to enter

Schreane’s unit and generally ignoring her duties. Beyond this accusation,

however, Schreane offers no evidence that anyone who knew of his objections

to Beemon’s conduct (Beemon, Townsend, or Keffer) was involved in the

decision to record over the tape. In fact, there is no indication that any prison

official even viewed the footage because, as Cox explained, it “is not live-

monitored 24-hours a day.” Cf. Bracey v. Grondin, 712 F.3d 1012, 1015, 1019-

20 (7th Cir. 2013) (affirming the district court’s finding of no spoliation when

prison surveillance cameras erased footage three days after an incident,

pursuant to standard procedure, and the plaintiff offered no proof that any

officials viewed the footage in question prior to its erasure). Schreane has

therefore failed to make the requisite showing of bad faith to be entitled to a

spoliation inference. Accordingly, the district court did not abuse its discretion

in denying Schreane’s spoliation claim.

II. Eighth Amendment Claims

A. Violation of Policy Claim

Schreane argues that Beemon violated his constitutional rights when

she failed to protect him against harm from other inmates. He contends first

that Beemon failed to protect him by permitting inmates assigned to other

units to enter his unit, which exposed him to a substantial risk of serious harm.

Beemon moved for summary judgment on the basis of qualified immunity,

which has two components: (1) the violation of a constitutional right (2) that

was clearly established at the time of the defendant’s conduct. Pearson v.

8

Case: 12-30689 Document: 00512705539 Page: 9 Date Filed: 07/21/2014

No. 12-30689

Callahan, 555 U.S. 223, 232 (2009). In applying this test, courts may address

either of the two components first. Id. at 236. The plaintiff must bear the

burden “to prove that a government official is not entitled to qualified

immunity.” Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013).

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments.” U.S. CONST. amend. VIII. It requires the humane treatment of

prisoners and, more specifically, requires prison employees to “take reasonable

measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (internal quotation marks omitted). “It is not, however,

every injury suffered by one prisoner at the hands of another that translates

into constitutional liability for prison officials responsible for the victim’s

safety.” Id. at 834. For a prison guard’s failure to protect an inmate from

assault to violate the Eighth Amendment, the guard must have acted with

“deliberate indifference” and subjected an inmate “to a substantial risk of

serious harm.” Id. at 828-29, 834, 844 (internal quotation marks omitted). A

defendant may escape liability by “respond[ing] reasonably to the risk, even if

the harm ultimately was not averted.” Id. at 844.

Deliberate indifference is a subjective inquiry. Atteberry v. Nocona Gen.

Hosp., 430 F.3d 245, 255 (5th Cir. 2005). “An official is deliberately indifferent

when he ‘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.’” Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004) (quoting

Farmer, 511 U.S. at 837). The plaintiff may prove deliberate indifference with

circumstantial evidence, including by “showing that the risk was so obvious

that the official must have known about it.” Id. The relevant risk of harm

encompasses both “current threats” and “sufficiently imminent dangers that

9

Case: 12-30689 Document: 00512705539 Page: 10 Date Filed: 07/21/2014

No. 12-30689

are likely to cause harm in the next week or month or year.” Horton v. Cockrell,

70 F.3d 397, 401 (5th Cir. 1995) (internal quotation marks omitted).

Schreane argues that the record, which we must read in the light most

favorable to him, see Tolan, 134 S. Ct. at 1863; Dillon, 596 F.3d at 266, reflects

a genuine issue of material fact as to whether Beemon was “aware of facts from

which the inference could be drawn that a substantial risk of harm exist[ed],”

“dr[ew] the inference” herself, and yet disregarded it. Johnson, 385 F.3d at

524 (internal quotation marks omitted). In support of his argument, Schreane

offers evidence that he brought his concerns not only to Beemon’s attention,

but also to the attention of her supervisors, Keffer, the warden, and Townsend,

the unit manager. Beemon also acknowledges in her unsworn declaration that

she was “aware” of the prison’s policy against allowing inmates to enter units

to which they were not assigned. Although Schreane has offered summary

judgment evidence that Beemon violated this policy, our inquiry cannot end

there.

To overcome qualified immunity, Schreane must show that Beemon

violated a right that was “clearly established” at the time. Pearson, 555 U.S.

at 232. Schreane need not demonstrate that “the very action in question has

previously been held unlawful,” but “in the light of pre-existing law the

unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). Certainly, it has long been clearly established that a prison guard

violates the Eighth Amendment by causing an inmate to be assaulted. See,

e.g., Farmer, 511 U.S. at 833 (“gratuitously allowing the beating or rape of one

prisoner by another serves no legitimate penological objective” (internal

quotation marks omitted)); Irving v. Dormire, 519 F.3d 441, 447-48 (8th Cir.

2008) (denying qualified immunity where prison guards opened cell doors so

as to allow a prisoner to attack the plaintiff). Here, however, the causal

relationship between Beemon’s violation of the policy and the assault that

10

Case: 12-30689 Document: 00512705539 Page: 11 Date Filed: 07/21/2014

No. 12-30689

Schreane suffered is so attenuated that it is beyond clearly established law.

See Pearson, 555 U.S. at 232. Indeed, the facts show that Schreane was

assaulted by someone from his own unit. As a result, any connection between

that assault and Beemon’s occasional violation of the policy against allowing

prisoners from one unit to enter another is unclear at best. Accordingly,

Schreane has not overcome Beemon’s defense of qualified immunity.

B. “Snitch” Claim

Schreane asserts that Beemon labeled him a “snitch” to other inmates,

thereby placing him at risk of the violent assault he suffered on May 1, 2008.

The Eighth Amendment duty to protect inmates from harm can be violated

when a prison official acts with deliberate indifference by exposing a prisoner

to physical assault through labeling him a “snitch” to other inmates. See, e.g.,

Adames v. Perez, 331 F.3d 508, 515 (5th Cir. 2003). Schreane claims that

Beemon must have told an inmate assigned to another unit (the one whom

Schreane had identified for Townsend on the day of the lockdown) that

Schreane was a “snitch,” that this inmate then told unidentified inmates from

Schreane’s own unit what Beemon had told him, and that Schreane was

thereafter assaulted. However, the only admissible evidence that Schreane

offers in support of his claim that Beemon labeled him a “snitch” is that his

assault came soon after his various complaints regarding Beemon’s conduct

and that the person assaulting him mentioned that Schreane had been “talking

to the police.” Schreane does not, for instance, assert that he himself heard

Beemon label him a “snitch,” nor does he offer any corroboration from other

inmates to that effect. Cf. White v. Fox, 470 F. App’x 214, 220, 223 (5th Cir.

2012) (per curiam) (reversing summary judgment on failure-to-protect claim

where plaintiff supported his assertions of being labeled a “snitch” with two

sworn affidavits from fellow prisoners). Schreane offers only an

unsubstantiated assertion that Beemon labeled him a “snitch.” See Ragas v.

11

Case: 12-30689 Document: 00512705539 Page: 12 Date Filed: 07/21/2014

No. 12-30689

Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (“[U]nsubstantiated

assertions are not competent summary judgment evidence.”). Because there is

no dispute as to any material fact regarding Schreane’s “snitch” claim,

summary judgment was warranted for this claim as well.

CONCLUSION

For the foregoing reasons, the district court’s grant of summary

judgment is AFFIRMED.

12