explaining that self-serving affidavits may support the denial of summary judgment where they “proffer[] ‘potential explanations, based on . . . personal observations’ and other specific facts” (quoting Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 513 (5th Cir. 1999), superseded by statute on other grounds, as noted in Mathis v. Exxon Corp., 302 F.3d 448 , 459 n.16 (5th Cir. 2002))
How later courts described this case
- explaining that self-serving affidavits may support the denial of summary judgment where they “proffer[] ‘potential explanations, based on . . . personal observations’ and other specific facts” (quoting Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 513 (5th Cir. 1999), superseded by statute on other grounds, as noted in Mathis v. Exxon Corp., 302 F.3d 448 , 459 n.16 (5th Cir. 2002))
- finding potential deliberate indifference where officer transferred plaintiff to certain housing knowing that he faced a substantial risk of being assaulted by inmates who he had previously reported to prison officials
- explaining that a declaration is fatally self-serving when its “contents [are] either conclusory, vague, or not based on personal knowledge” (quoting Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021)
- physical harm suffered by the prisoner was brought in connection with a failure-to-protect claim
Written by the judges who cited it.
The opinion
Case: 21-50578 Document: 00516636674 Page: 1 Date Filed: 02/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 6, 2023
No. 21-50578 Lyle W. Cayce
Clerk
Richard Luna,
Plaintiff—Appellant,
versus
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional
Institutions Division; Felipe Gonzalez, Warden, Terrell Unit, Texas
Department of Criminal Justice - Correctional Institutions Division; Bryan
Collier, Executive Director, Texas Department of Criminal Justice;
Ar'Lisa Simon-Hastings, Chief Classification, Terrell Unit, Texas
Department of Criminal Justice - Correctional Institutions Division,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CV-685
Before Richman, Chief Judge, and King and Higginson, Circuit
Judges.
Per Curiam:
Plaintiff-appellant Richard Luna appeals the entry of summary
judgment dismissing his First and Eighth Amendment claims against
defendant-appellee Ar’Lisa Simon-Hastings. We REVERSE in part,
Case: 21-50578 Document: 00516636674 Page: 2 Date Filed: 02/06/2023
No. 21-50578
AFFIRM the district court’s summary judgment dismissal of Luna’s First
Amendment retaliation claim, and REMAND for further proceedings.
I.
In May 2020, Luna, proceeding pro se, filed a lawsuit in Texas state
court against several officials at the Texas Department of Criminal Justice,
where he remains an inmate. He alleged, inter alia, violations of his First and
Eighth Amendment rights under 42 U.S.C. § 1983 arising out of a housing
transfer and subsequent physical altercation. According to Luna, he had
previously been sexually harassed and threatened by inmates in boot camp
housing; after asking the sergeant for a transfer to the main building on
account of the harassment and threats, he was assigned housing in the main
building. After several months, however, Simon-Hastings reassigned Luna to
boot camp housing on January 7, 2020, and Luna was assaulted in boot camp
housing that same day. Luna further alleged that, when Simon-Hastings saw
him following the assault, she told him that the assault would teach him a
lesson about going over her head with housing moves.
Defendants removed the case to federal court, whereupon the district
court granted their motion to dismiss all of Luna’s claims except for two:
Luna’s First Amendment retaliation and Eighth Amendment failure-to-
protect claims against Simon-Hastings. On June 9, 2021, the district court
granted Simon-Hastings’ motion for summary judgment on qualified
immunity grounds, concluding that Luna’s proffered evidence was
insufficient to raise a genuine dispute of material fact concerning whether
Simon-Hastings was aware that Luna faced a substantial risk of serious harm
when she authorized his transfer back to boot camp housing. The district
court dismissed Luna’s remaining claims with prejudice, which Luna
appealed.
2
Case: 21-50578 Document: 00516636674 Page: 3 Date Filed: 02/06/2023
No. 21-50578
II.
We review the district court’s grant of summary judgment de novo,
applying the same standard used by the district court. Nickell v. Beau View of
Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is
proper when “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).
We view the evidence and draw all inferences in a light most favorable to the
nonmovant; however, “[u]nsubstantiated assertions, improbable inferences,
and unsupported speculation are not sufficient to defeat a motion for
summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir.
2003). The pleadings and other filings of pro se litigants are construed
liberally. Coleman v. United States, 912 F.3d 824, 828 (5th Cir. 2019).
A qualified immunity defense alters the typical summary judgment
burden of proof. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once
an official pleads the defense, the burden then shifts to the plaintiff, who must
rebut the defense by establishing a genuine fact issue as to whether the
official’s allegedly wrongful conduct violated clearly established law.” Id.
The defense has two prongs, both of which must be rebutted to overcome
qualified immunity: “whether an official’s conduct violated a constitutional
right of the plaintiff; and whether the right was clearly established at the time
of the violation.” Id.
III.
Luna maintains that, contrary to the district court’s ruling, he raised
a genuine dispute of material fact regarding his failure-to-protect claim under
the Eighth Amendment. We agree.
Under the Eighth Amendment, “prison officials have a duty . . . to
protect prisoners from violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-
3
Case: 21-50578 Document: 00516636674 Page: 4 Date Filed: 02/06/2023
No. 21-50578
Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “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. To succeed under his failure-to-protect claim, Luna must show
that he was incarcerated under conditions posing a substantial risk of serious
harm and that Simon-Hastings acted with deliberate indifference to his
safety. Id. An official acts with deliberate indifference when she “knows of
and disregards an excessive risk to inmate health or safety”; she must “be
aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists” and draw the inference. Id. at 837.
The district court determined that there was no evidence, beyond
Luna’s “conclusory allegations,” showing that Simon-Hastings was aware of
facts from which she could infer that Luna faced a substantial risk of serious
harm when she authorized his transfer to boot camp housing on January 7,
2020. In so doing, the district court treated Luna’s allegation that Simon-
Hastings told Luna, following the assault, that “this will teach you a lesson
about going over my head with housing moves,” as a conclusory allegation
insufficient to create a genuine dispute of material fact. We hold that Luna’s
allegation is not conclusory and, in addition to other facts, establishes a
genuine dispute as to whether Simon-Hastings was deliberately indifferent to
the substantial risk of serious harm that Luna faced in boot camp housing.
“Self-serving affidavits and declarations, like all summary judgment
evidence,” must be given by competent witnesses and set out facts, made on
personal knowledge and admissible in evidence, that are “particularized, not
vague or conclusory.” Guzman v. Allstate Assurance Co., 18 F.4th 157, 161
(5th Cir. 2021). “[W]hen we have held self-serving affidavits or depositions
insufficient to create a fact issue, it is because their contents were either
conclusory, vague, or not based on personal knowledge.” Id.; see also In re
Deepwater Horizon, 48 F.4th 378, 382–83 (5th Cir. 2022) (“It is unremarkable
4
Case: 21-50578 Document: 00516636674 Page: 5 Date Filed: 02/06/2023
No. 21-50578
that evidence submitted by one side at the summary judgment stage will be
‘self-serving’; the question is whether that self-serving evidence is
‘conclusory, vague, or not based on personal knowledge.’” (quoting
Guzman, 18 F.4th at 161)).
Whether a sworn statement is conclusory “is necessarily a fact-bound
analysis that will depend on the facts and claims at issue.” Lester v. Wells
Fargo Bank, N.A., 805 F. App’x 288, 292 (5th Cir. 2020). “[M]ore detailed
and fact-intensive” statements can raise genuine disputes of material fact,
while “[b]road legal or factual assertions . . . unsupported by specific facts
are generally held to be conclusory.” Id. (citing Rushing v. Kan. City S. Ry.
Co., 185 F.3d 496, 513 (5th Cir. 1999) (recognizing that “self-serving and, to
an extent, conclusional” attestations may support a denial of summary
judgment where such evidence proffers “potential explanations, based on
their personal observations” and other specific facts), superseded by
amendment, Fed. R. Evid. 103(a), on other grounds as recognized in Mathis
v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002)); see Guzman, 18 F.4th
at 161 (concluding that defendants’ affidavits were competent summary
judgment evidence because, inter alia, they concerned specific “personal
experiences” and were “particularized rather than vague or conclusory”); In
re Deepwater Horizon, 48 F.4th at 383–86 (relying on declaration by plaintiff’s
president to conclude that there was a genuine dispute of material fact).
In Johnson v. Johnson, for example, the plaintiff’s complaint and
affidavit laid out detailed factual allegations regarding a series of events that
occurred over a period of eighteen months; in evaluating his failure-to-
protect claim, we did not treat his allegations, which, like here, contained
specific statements made by defendants, as conclusory. 385 F.3d 503, 526–27
(5th Cir. 2004). Instead, we determined that, “[g]iven the facts that we must
assume for purposes of this appeal,” the defendants did not respond
5
Case: 21-50578 Document: 00516636674 Page: 6 Date Filed: 02/06/2023
No. 21-50578
reasonably to the threats faced by the plaintiffs and contravened clearly
established law. Id. at 527.
Here, Luna’s allegation that Simon-Hastings told him that the January
7 assault would teach him a lesson is supported by specific facts contained in
his complaint. The complaint alleged that Luna had experienced threats and
harassment from other inmates in boot camp housing beginning on May 22,
2019, which led to his decision to ask the sergeant for a housing transfer on
August 26, 2019. Luna filed an officer protection investigation for threat of
violence at that time, but its outcome was unsubstantiated due to a lack of
evidence. Nevertheless, Luna was brought before the Unit Classification
Committee (“UCC”), which handles housing assignments, and three days
after requesting a transfer, he was moved to a different building. Because
Simon-Hastings reviews the basis for housing assignments made by the UCC
as part of her duties, Luna alleged that she had personal knowledge that he
was transferred because of the threats and harassment he purportedly
experienced. Then, on January 7, 2020, Simon-Hastings transferred Luna
back to boot camp housing, and he was assaulted. Luna alleged that Simon-
Hastings saw him following the assault, at which point she made the
statement in question. Contrary to the district court’s conclusion, Luna’s
allegation regarding the statement is not conclusory when viewed in this
context: he explained his and Simon-Hastings’ shared history leading up to
the alleged statement and described her possible motivation in saying it.
Taken in a light most favorable to Luna, Simon-Hastings’ statement,
alongside the other facts contained in his complaint, shows that she was
aware that Luna faced a risk of being assaulted upon his transfer back to boot
camp housing.
Because the statement is not conclusory, the district court erred in not
considering it when determining whether there was a genuine dispute of
material fact regarding Simon-Hastings’ deliberate indifference to the
6
Case: 21-50578 Document: 00516636674 Page: 7 Date Filed: 02/06/2023
No. 21-50578
substantial risk of serious harm that Luna faced. Simon-Hastings argues that
there is not a genuine material factual dispute with respect to whether she
was aware that Luna faced a serious risk to his safety or even whether Luna’s
safety was substantially at risk in boot camp housing because the August 2019
investigation was unsubstantiated due to a lack of evidence. In the alternative,
she avers that there is not a genuine material factual dispute with respect to
whether she was deliberately indifferent to Luna’s need for protection
because: (1) the official response to Luna’s grievance indicated the transfer
back to boot camp housing “was an unintentional act not meant to cause
[Luna] harm”; and (2) on January 14, 2020, Simon-Hastings ensured that
Luna would never again be housed with the inmate who allegedly assaulted
him by adding a note to Luna’s housing file.
Taking the evidence in a light most favorable to Luna, as we are
required to do, we disagree. As an initial matter, the substantial risk of serious
harm that Luna faced was apparent: he had been harassed and threatened by
other inmates at least twice before his transfer, and at least one of these times
those inmates threatened to kill Luna and told him that they would sexually
assault him when he was dead; when he was transferred back, he was
assaulted almost immediately, several of his teeth were knocked out, his arm
was dislocated, and his face was battered and lacerated. Simon-Hastings’
statement suggests that she was aware of the earlier assault and the risk that
a similar incident could take place upon Luna’s transfer back to boot camp
housing. It is plausible that other officials were not aware of Simon-Hastings’
alleged motive for the transfer and that she separated Luna from the assailant
because she had no other choice: the threat had been substantiated by the
officer protection investigation relating to the January 7 assault. Therefore,
these facts are consistent with Luna’s allegation that Simon-Hastings
transferred Luna back to boot camp housing to teach him a lesson about
seeking housing transfers from other officials, knowing that he faced a
7
Case: 21-50578 Document: 00516636674 Page: 8 Date Filed: 02/06/2023
No. 21-50578
substantial risk of being assaulted by the inmates who he had previously
reported to prison officials during the August 2019 officer protection
investigation.
We conclude that this statement is sufficient to create a genuine
material factual dispute. However, we do not decide whether, given this
factual dispute, Simon-Hastings violated clearly established law. The district
court did not reach this issue, and “we are a court of review, not of first
view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).
Regarding the district court’s summary judgment dismissal of Luna’s
First Amendment retaliation claim, Luna does not raise the issue in his
briefing before this court. Accordingly, this issue has been abandoned, and
we do not consider it. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993)
(stating that arguments that have not been briefed have been abandoned).
IV.
For the foregoing reasons, we REVERSE in part, AFFIRM the
district court’s summary judgment dismissal of Luna’s First Amendment
retaliation claim, and REMAND for further proceedings.
8