The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 20, 2008
No. 08-50072
Summary Calendar Charles R. Fulbruge III
Clerk
PHILIP N. FRASIER
Plaintiff-Appellant
v.
JOHN B FOX, Warden Bastrop Federal Correctional Institution; MARNEY
GAMBLE, SIS Lieutenant, Bastrop Federal Correctional Institution; GINGER
SOSA, SIS Lieutenant, Bastrop Federal Correctional Institution; MENDOZA,
Case Managers Co-ordinator, Bastrop Federal Correctional Institution; ART
MANUEL, Unit Manager, Bastrop Federal Correctional Institution; KAREN
WEATHERS, Inmate Systems Manager, Bastrop Federal Correctional
Institution; GREIGER, Case Manager of Austin Unit, Bastrop Federal
Correctional Institution; UNKNOWN CORRECTIONS OFFICER, on duty in R
& D at Bastrop Federal Correctional Institution on the day that Plaintiff was
transferred; Individually and in their Official Capacities
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-768
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-50072
This is an appeal from the district court’s grant of summary judgment to
several Federal Bureau of Prisons (“BOP”) employees on plaintiff Philip Frasier’s
Eighth Amendment claims asserted under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). For the reasons
stated herein, we AFFIRM.
I. BACKGROUND
Frasier’s claims arise from his participation in an investigation into
steroids and narcotics smuggling at the federal correctional institute where he
was imprisoned in Bastrop, Texas (“Bastrop FCI”). In December 2005, Frasier
was moved from Bastrop FCI for his personal safety. Because of the nature of
the transfer, Frasier was not able to pack his personal effects. He alleges Unit
Manager Art Manuel told him that his property had been secured and would be
packed and forwarded to him. Frasier states that when he arrived at the new
facility, he discovered that his personal property, which contained contact
information for his family, had not been secured or packed and was, in fact, lost.
Three months later, Frasier’s wife began receiving threatening phone calls at her
home in Mexico. Frasier believes that his property fell into the hands of the
criminal gangs being investigated, who in turn used the information to harass
and threaten his family.
Frasier brought this lawsuit asserting that Defendants violated his
constitutional rights. He sought money damages in the amount of $400 per day
since the harassment began—the amount Frasier says he has paid since that
time to hire a private security firm to protect his family. Frasier also sought an
injunction prohibiting Defendants from retaliating against him for filing his
lawsuit, and he sought an order ensuring that the threats against him and his
family be taken into account during his immigration proceedings. Frasier did
not allege that any harm had befallen him or his family.
The district court granted Defendants’ motion for summary judgment,
holding that Defendants were entitled to qualified immunity because Fraiser
2
No. 08-50072
failed to offer any evidence to establish that any of the named Defendants acted
with deliberate indifference to a known, substantial risk to his safety.
II. DISCUSSION
We review de novo the district court’s grant of summary judgment. XL
Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir.
2008); see also FED. R. CIV. P. 56(c). “Summary judgment is appropriate [if the
summary judgment evidence shows] ‘that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.’” Mello v. Sara Lee Corp., 431 F.3d 440, 443 (5th Cir. 2005) (quoting FED.
R. CIV. PROC. 56). “[W]e ‘review the evidence and inferences to be drawn
therefrom in the light most favorable to the non-moving party.’” FDIC v.
Laguarta, 939 F.2d 1231, 1236 (5th Cir. 1991) (quoting Baton Rouge Bldg. &
Constr. Council AFL-CIO v. Jacobs Constructors Inc., 804 F.2d 879, 881 (5th Cir.
1986)). “A sufficient showing cannot rest on mere allegations or denials in the
pleadings, but must set forth specific facts that establish an issue for trial.”
Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987)
(internal quotations omitted). After those reasonable inferences are made, there
is an issue of material fact only if a rational trier of fact could find for the
non-moving party. See Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir.
1999).
A qualified immunity defense requires a two step analysis. The first
question is whether the facts alleged, “[t]aken in the light most favorable to the
party asserting the injury . . . show the officer’s conduct violated a constitutional
right.” Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Freeman v. Gore, 483
F.3d 404, 410 (5th Cir. 2007). “If no constitutional right would have been
violated were the allegations established, there is no necessity for further
inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. If a
constitutional violation is found, the qualified immunity inquiry continues and
examines whether the constitutional rights violated were clearly established to
3
No. 08-50072
the extent that a reasonable person would be aware of those rights. Hathaway
v. Bazany, 507 F.3d 312, 320 (5th Cir. 2007).
The treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.
Farmer v. Brennan, 511 U.S. 825, 832 (1994). Specifically, prison officials have
a duty to protect prisoners from violence at the hands of other prisoners. Id. at
833. But not every injury suffered by one inmate at the hands of another creates
constitutional liability. To establish a constitutional violation, the plaintiff must
show that officials acted with deliberate indifference to his safety. Id.
To find that an official is deliberately indifferent, it must be proven
that the official 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.
Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). If an inmate shows only that
officials acted negligently, his constitutional claims fail. Neals v. Norwood, 59
F.3d 530, 533 (5th Cir. 1995).
In this case, Frasier has failed to demonstrate that Defendants were
deliberately indifferent to Frasier’s safety. As the district court noted, Frasier’s
emergency transfer out of Bastrop FCI occurred because of Defendants’ concern
for his safety. Even if some of the Defendants assured Frasier that his property
would be secured, as he alleges, Frasier does not explain how any of the
Defendants could have been aware of facts from which an inference could be
drawn that a substantial risk of serious harm existed or that any of the
Defendants actually drew the inference. See Neals, 59 F.3d at 533. Frasier does
not even contend that he drew such an inference himself until after he had
already been relocated to the federal correctional institute in Allentown,
Pennsylvania (“Allentown FCI”), and his property had been lost. Also, there is
no suggestion in the record—including in Frasier’s own pleadings—that he
advised prison officials of the sensitive nature of his property prior to his
4
No. 08-50072
removal from Bastrop FCI or of any danger posed by the possible loss of this
property should it have fallen into the hands of the gangs being investigated.
While the failure to secure and pack Frasier’s property during the transfer may
have been negligent, it did not rise to the level of deliberate indifference to
Frasier’s safety. Accordingly, even viewing the evidence in the light most
favorable to Frasier, Defendants were entitled to judgment as a matter of law on
Frasier’s claims arising from any failure by Defendants to secure his personal
property. See Neals, 59 F.3d at 533.
In the district court, Frasier also sought an injunction prohibiting
Defendants from retaliating against him for filing his lawsuit, and he sought an
order ensuring that the threats to him and his family be taken into account
during his immigration proceedings. Because Frasier has failed to brief these
issues in this court, they are deemed abandoned. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). In addition, because Fraiser is no longer
incarcerated at Bastrop FCI, his request for injunctive relief is moot. See, e.g.,
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001).
Frasier also complains on appeal about his current incarceration at
Allenwood FCI. Frasier contends that the BOP housed an inmate from Bastrop
FCI in the same unit as Frasier at Allenwood FCI. The inmate allegedly was a
member of one of the gangs that Frasier helped investigate while at Bastrop
FCI. However, Frasier has failed to cite any specific threat to him from the
other inmate at Allenwood FCI. Defendants’ knowledge that Frasier acted as an
informant is insufficient to prove that they have knowledge of a substantial risk
to Frasier’s safety. Longoria v. Texas, 473 F.3d 586, 594-95 (5th Cir. 2006). In
addition, none of the named Defendants appear to have any control over the
conditions of Frasier’s confinement at Allenwood FCI.
Because Frasier has not established that any of the named Defendants
have acted with deliberate indifference to a known, substantial risk to his safety,
5
No. 08-50072
Frasier has failed to state a constitutional claim. Accordingly, Defendants were
entitled to summary judgment on their claim of qualified immunity.
III. CONCLUSION
We DENY as moot Frasier’s motion to expedite the appeal, and we
AFFIRM the district court’s judgment.
6