Opposition Brief — Rios v. Johnson

Se Supreme Court, U.S.

FILED

(4) JUN 2 2 20085

No. 04-1270 | cee OF THE CLERK |

In the

Supreme Court of the United States

JOSHUA RIOS AND MARY CANALES,

Petitioners,

¥,

DOYLE WAYNE SCOTT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

EXECUTIVE DIRECTOR OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE;

GARY JOHNSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS EXECUTIVE

DIRECTOR OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE; JANE

CATHERINE COCKRELL, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR OF

THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE; LESLIE WOODS, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY AS REGION II DIRECTOR OF THE TEXAS

DEPARTMENT OF CRIMINAL JUSTICE; ROY A. GARCIA, INDIVIDUALLY AND IN

His OFFICIAL CAPACITY AS SENIOR WARDEN OF THE COFFIELD UNIT OF THE

INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE;

AND PATTI SIPPEL,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

GREG ABBOTT DAVID A. TALBOT, JR.

Attorney General of Texas Assistant Attorney General

BARRY R. MCBEE Law Enforcement Defense

First Assistant Attorney General Division

EDWARD D. BURBACH SETH BYRON DENNIS

Deputy Attorney General Assistant Attorney General

for Litigation Counsel of Record

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

(512) 936-1700

D

i

QUESTIONS PRESENTED

Does the Eighth Amendment require an isolated prison guard to

immediately insert herself in the confrontation between an

armed inmate who has escaped from his cell and an unarmed

prisoner who is handcuffed while being transported through the

prison hallways, and, if so, was such a right clearly established

before March 16, 2000?

As to Petitioners’ claims against the prison supervisors, did

Petitioners offer sufficient evidence to satisfy their burden to

overcome a qualified-immunity defense?

li

TABLE OF CONTENTS

Page

Questions Presented... .éisussees bees ae renbesanewiees i

Table of Contents .......cccdsasessseeesstebanepaueees li

Table of Authas@tSD ..54544sencwasdeseeee eee iv

Statement of the CAMS .<.é «cid cou e ear eee eee eee eaee 2

Course of Proceedings and Disposition Below .......... 2

Statement of Facts .....s c.00500eceena swe weaes cee benen 2

Summary of the Arg oak vs snk bub cneeateewvassas 3

Reasons to Deny Revigwr . os isgesacetwnsewheveeadouades +

I. There is no split about whether a correctional officer must

put herself in unreasonable physical danger in order to

intervene against an armed inmate. ................ 4

II. This case does not present the question of whether officials

must know of threats against a specific inmate. ...... 7

A. The Fifth Circuit’s decision did not turn on-indeed, did

not even refer to-any concept that officials would need

to know about risks to the specific inmate. ...... 7

B. The Court of Appeal’s decision is not in conflict with

other circuits or this court’s precedent. ......... 8

ili

C. The Fifth Circuit’s evaluation of the evidence does not

i be es q

REST: GARE gE ara eg LAS eh cap em eettay eer er mm apie Us 13

iV

TABLE OF AUTHORITIES

Cases:

Adames v. Perez,

pe a ae rer rerer err rey

Anderson v. Creighton,

483 U.S. 635, 638 (1987) ......... cece ee eeee

Bell v. Wolfish,

441 U.S. 520, 547, 99 S. Ct. 1861, 1878 (1979) .

Board of County Commissioners of Bryan County,

Oklahoma v. Brown, 520 U.S. 409 (1997) ......

Edmond v. Eaves,

70 Fed. Appx. 159, 160 (Sth Cir. 2003) .......

El-Mumit v. Foster, 232 F.23d 207 (table),

2000 WL 1272453, at *1 (Sth Cir. 2000).......

Farmer v. Brennan,

Sek Ah eg ee CRED kb ccheeeesaenas

Grandstaff v. City of Borger, 767 F.2d 161, 169-170

(Sth Cir. 1985) cert. denied 480 U.S. 916 (1987)

Hale v. Tallapoosa County,

50 F.3d 1579, 1583 (11th Cir. 1995) ..........

Page

Vv

Hernandez v. Tex. Dep’t of Prot. and Regulatory Servs.,

380 F.3d 872, 881-882 (Tex. 2004) ..........c cc ceenee 8

Hopkins v. Stice,

916 F.2d 1029, 1030-31 (Sth Cir. 1990) ............... 6

Hudson v. Palmer,

Oe ie Fe es CI eke és cawea wie eee ree 6

Jacquez v. Procunier, .

jae Bw, te Ce | rere ore ee 10

MacKay v. Farnsworth,

rs a is RES ee 5

Mouille v. City of Live Oak,

O77 F208 S74, See CR TGR) ek is ei cess 10

Odom v. South Carolina Dept. Of Corrections,

S08 FO eS COG, Fee ik eck ee ee ce iewass 5

Peate v. McCann,

yo oe bs, ¢, Le we | eer errr rrr Tee 5

Prosser v. Ross,

70 F.3d 1005, 1008 (th Cir. 1995) 2.0... ccc ccessccccce 5

Rios, et al. v. Scott, et al.,

No. 03-41088, 100 Fed. Appx. 270 (5™ Cir. 2004). ....... 2

Siegert v. Gilley,

SOO UE 2s Bee i 6 a AR ike eee 4

No. 04-1270

In the

Supreme Court of the United States

JOSHUA RIOS AND MARY CANALES,

Petitioners,

We

DOYLE WAYNE Scott, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS DEPARTMENT

OF CRIMINAL JUSTICE; GARY JOHNSON, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS

DEPARTMENT OF CRIMINAL JUSTICE; JANE CATHERINE

COCKRELL, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR

OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE; LESLIE

Woops, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

REGION II DIRECTOR OF THE TEXAS DEPARTMENT OF CRIMINAL

JUSTICE; RoY A. GARCIA, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS SENIOR WARDEN OF THE COFFIELD UNIT OF THE

INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF

CRIMINAL JUSTICE; AND PATTI SIPPEL,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Of the two questions offered by Petitioners, the first is over-

determined on these facts and the second is not fairly presented.

First, the Constitution does not create a mandatory, per se duty for

a solitary correctional officer to put at risk their own life to stop a

sudden violent attack rather than seeking the assistance of other

officers. Second, in the guise of suggesting that the Fifth Circuit

misapplied the law, Petitioners merely ask this Court to second-

2

guess the evidentiary judgments that were made by the district court

and affirmed on appeal.

STATEMENT OF THE CASE

Course of Proceedings and Disposition Below

Petitioners challenge an unpublished per curium decision of the

Fifth Circuit that affirmed summary judgment for the Respondents

on the grounds of qualified immunity. Petitioners, who are the

family members of a deceased inmate, brought claims including

claims for money damages under 42 U.S.C. §1983. (App.5)' After

Respondents moved for summary judgment on the question of

qualified immunity, and after the Magistrate Judge recommended

that the motion for summary judgment be granted, (App.28-29), the

district court rendered judgment in favor of the Respondents on July

28, 2003 (App.30).

On June 3, 2004, the Court of Appeals for the Fifth Circuit

affirmed in a decision joined by Chief Judge King, Judge Reavley,

and Judge Garza. Rios, et al. v. Scott, et al., No. 03-41088, 100

Fed.Appx. 270 (Sth Cir. 2004).

Statement of Facts

On March 16, 2000, correctional officer Patti Sippel was

escorting a handcuffed inmate from the shower area to his cell on

another floor, both of which were part of the prison’s administrative

segregation unit. (App.45.) While transporting the inmate, Officer

Sippel was carrying a baton but no other weapons. (App2.) She

was escorting inmate Rolando Rios, who was a known member of

a prison gang. (App.2.) The inmate was handcuffed to minimize

the safety risk that he would pose to the escorting officer. (App.5.)

1. Cites to “ROA” refer to the appellate record in the Fifth Circuit.

Cites to “App” refer to the appendix to the petition for review.

ee Eee

3

As Officer Sippel was escorting Rios to the landing of the

stairwell to his floor, they were jumped by an escaped inmate armed

with a sharpened metal weapon of the type known as a “shank.”

(App.5.) The escaped inmate, Antonio Lara, stabbed Rios in the

back, repeatedly and quickly. (App.5.) When Officer Sippel

assessed the situation, she fled from the armed inmate to seek

assistance. (App.5.) That assistance came, but the wounds inflicted

by Lara were fatal, as Rios later died after receiving medical

attention. (App.5.)

Lara had broken out of his cell, which was on the same floor as

the attack. (App.5.) Before breaking out and attacking Rios, Lara

had been under monitoring as a potential member of a prison gang,

but it had not yet been confirmed that he was a member. (App.2.)

SUMMARY OF THE ARGUMENT

Neither of the questions presented warrants review by this Court.

First, there is no absolute constitutional duty requiring a

correctional officer to risk her own life rather than retreating to seek

appropriate backup, It is eminently reasonable for such an officer

to seek help rather than to unilaterally intervene, putting her own

life at risk by attempting to personally overpower an armed,

escaped inmate who is in the midst of a violent attack. Quite

unsurprisingly, there is no dispute among the Circuits on this

common-sense principle of law.

Second, the record in this case does not support Petitioners’

claim that the prison supervisors were deliberately indifferent. The

Fifth Circuit examined the snippets of testimony and other evidence

offered by Petitioners—which make up the bulk of their petition to

this Court—and rightly concluded that, “[h]ere, there was no

evidence that the supervisory officials were deliberately indifferent

to inadequate staffing, cell searches, training or potential gang

conflict.” (App.6) This is a dispute about facts, not law, and there

is no need for this Court’s intervention against an unpublished per

4

curium decision applying well-settled law to an unusual set of facts.

The writ should accordingly be denied.

REASONS TO DENY REVIEW

I. THERE IS NO SPLIT ABOUT WHETHER A CORRECTIONAL

OFFICER MUST PUT HERSELF IN UNREASONABLE PHYSICAL

DANGER IN ORDER TO INTERVENE AGAINST AN ARMED

INMATE.

In order to avoid summary judgment on their claims against

Officer Patti Sippel—the oniy officer who was personally escorting

Rios when an escaped, armed inmate attacked—Petitioners were

required to establish that no reasonable officer in her position could

have, consistent with the Constitution, sought help instead of

immediately intervening.

This is because qualified immunity protects government officials

from certain claims brought pursuant to §1983. Anderson v.

Creighton, 483 U.S. 635, 638 (1987). To overcome the defense of

qualified immunity, plaintiffs must first must show that the plaintiff

has alleged a violation of a clearly established constitutional right.

Siegert v. Gilley, 500 U.S. 226, 232 (1991). Once plaintiffs have

overcome the first prong of the analysis, they must introduce

sufficient evidence that the defendant’s conduct was objectively

reasonable. Siegert, 500 U.S. at 232.

The district court examined the summary-judgment record before

it and held that there was no constitutional duty for Officer Sippel

to immediately intervene to stop this attack. (App.21-22) The

Fifth Circuit affirmed, holding that “the [Petitioners] could not meet

their burden to demonstrate that all reasonable officers similarly

situated would have then known that the failure to intervene

violated the Constitution.” (App.5-6)

5

The Fifth Circuit’s refusal to retroactively impose an absolute

duty to intervene—especially where an isolated officer would have

been subjecting herself to great physical danger—comports

perfectly with the decisions of other Circuits and with this Court’s

guidance.

In cases presenting similar facts, other Circuits have reached

similar results. In a case in which a prison guard reacted by seeking

help rather than individually trying to break up a fight, the Eighth

Circuit held that “prison guards have no constitutional duty io

intervene in the armed assault of one inmate upon another when

intervention would place the guards in danger of physical harm.”

Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995). The Fourth

Circuit has agreed that “such heroic measures are not

constitutionally required.” Winfield v. Bass, 106 F.3d 525, 532 (4th

Cir. 1997) (en banc). See also Odom v. South Carolina Dept. Of

Corrections, 349 F.3d 765 (4th Cir. 2003); Peate v. McCann, 294

F.3d 879 (7th Cir. 2002); MacKay v. Farnsworth, 48 F.3d 491(10th

Cir. 1995).

This Court has also recognized the uniquely difficult task facing

prison officers. The day to day problems arising in the operation of

a prison are not susceptible of easy solutions. Bell v. Wolfish, 441

U.S. 520, 547, 99 S. Ct. 1861, 1878 (1979). Prison administrators

are accorded a great deal of deference “in the adoption and

execution of policies and practices that in their judgment are needed

to preserve internal order and discipline and to maintain

institutional security.” Jd. In part, this is because of the danger

facing all prison staff:

Prisons, by definition, are places of involuntary

confinement of persons who have a demonstrated

proclivity for antisocial criminal and often violent,

conduct. Inmates have necessarily shown a lapse in

ability to control and conform their behavior to the

6

legitimate standards of society by the normal impulses

of self-restraint; they have shown an inability to

regulate their conduct in a way that reflects either a

respect for law or an appreciation of the rights of

others.

Hudson v. Palmer, 468 U.S. 517, 526 (1984). Within that context,

the Court has recognized that certain situations can arise in which

“the decisions of prison officials are typically made ‘in haste, under

pressure, and without the luxury of a second chance,”” carving for

those cases involving excessive force a special, higher standard of

culpability than mere deliberate indifference. Farmer v. Brennan,

511 U.S. 825, 835-36 (1994). Although the accusation against

Officer Sippel is somewhat different—it is that she did not use

enough force—there is no doubt that the haste and pressure

confronting her were of the same, if not greater, dimension.

Although Respondents would contend that there is still no

such absolute constitutional duty to intervene in the unusual

circumstances offered by this case, at the very least the precedents

of other Circuits bolster the Fifth Circuit’s holding that such a right

would not have been well-established at the time of this attack. To

overcome qualified immunity, "the contours of the right allegedly

viola*ed [must be] sufficiently clear that a reasonable official would

understand that what he or she was doing violated that right."

Anderson, 483 U.S. at 640. Thus,“[a]n official enjoys qualified

immunity if a reasonable official would be left uncertain of the

application of the standard to the facts confronting him.” Hopkins

v. Stice, 916 F.2d 1029, 1030-31 (Sth Cir. 1990). Accordingly,

Officer Sippel is entitled to qualified immunity and the Fifth Circuit

correctly affirmed the dismissal of these claims against her.

7

II. THIsCASE DOES NOT PRESENT THE QUESTION OF WHETHER

OFFICIALS MUST KNOW OF THREATS AGAINST A SPECIFIC

INMATE.

Petitioners also claim that the supervisors of the prison were

deliberately indifferent so as to permit Lara’s attack on Rios.

Petitioners accuse the Fifth Circuit of disagreeing “with the . . .

holding that a risk of violence specific to the inmate/plaintiff is not

required.” (Pet.13). Petitioners argue that such a rule would

conflict with precedent and other Circuits. But this case does not

present the question. Indeed, the Fifth Circuit did not apply any

such rule, instead concluding that the evidence here was simply

insufficient. Confirming that, other Fifth Circuit

precedent—including a more recent, published opinion—make

clear that the Fifth Circuit does not disagree with the decisions

Petitioners cite as purported conflicts. Petitioners’ disagreement

with the Fifth Circuit is merely an evidentiary dispute that does not

implicate this legal rule.

A. The Fifth Circuit’s Decision Did Not Turn On—Indeed,

Did Not Even Refer to—Any Concept That Officials

Would Need to Know About Risks to the Specific Inmate.

The Fifth Circuit decision that the prison supervisors were not

deliberately indifferent was based on its evaluation of the record,

not on any purported rule that a risk to the specific inmate must

have been shown. The court did not suggest that it was making any

distinction whatsoever about whether the officials knew about risks

to inmates in general or to Rios in particular. Rather, it concluded

that “there was no evidence that the supervisory officials were

deliberately indifferent to inadequate staffing, cell searches, training

or potential gang conflict.” (App.3).

8

B. The Court of Appeals’s Decision Is Not In Conflict With

Other Circuits or This Court’s Precedent.

The petition claims that the Fifth Circuit has failed to follow

Farmer v. Brennan, 511 U.S. 825 (1994), see Pet.12, suggesting

that the court improperly would require plaintiffs to show that the

prison officials knew of some risk unique to a particular plaintiff

rather than a more generalized risk. But the Fifth Circuit follows

Farmer v. Brennan, as is made plain by its citation to that case for

the controlling legal principle. (App.3).

Indeed, the Fifth Circuit has expressly relied on this aspect of

Farmer v. Brennan ina published decision issued after the decision

in this case. Hernandez v. Tex. Dep’t of Prot. and Regulatory

Servs., 380 F.3d 872, 881-882 (Tex. 2004) (“a prison official may

not escape liability for deliberate indifference by showing that. . .

he did not know that the complainant was especially likely to be

assaulted by a specific prisoner”) (citing Farmer, 511 U.S. at 843)).

If the unpublished per curium decision in the present case had

created any doubt—unlikely both because of its silence on this

question and the local circuit rule making unpublished decisions

non-precedential, see FIFTH CIR. R. 47.5.4—this more recent

express statement of the Circuit should allay any concern that there

could be conflict over this point.”

For much the same reasons, the petition is wrong to assert that

the Fifth Circuit is in conflict with the Sixth Circuit and the

Eleventh Circuit on this issue. The cases cited by petitioner merely

restate the Farmer rule that there is no need to show evidence of a

risk specific to a particular inmate. Street v. Corrections Corp. of

2. Unpublished decisions from the Fifth Circuit have also continued to

expressly follow this rule. See Edmond v. Eaves, 70 Fed. Appx. 159, 160 (Sth

Cir. 2003) (per curium) (unpublished); £/-Mumit v. Foster, 232 F.23d 207

(table), 2000 WL 1272453, at *1 (Sth Cir. 2000) (per curium) (unpublished).

9

Am., 102 F.3d 810, 817 (6th Cir. 1996); Hale v. Tallapoosa County,

50 F.3d 1579, 1583 (11th Cir. 1995). The Fifth Circuit agrees with

that rule. The only divergence is the resuli that each court reached

when evaluating the particular summary judgment record before it,

and there is no need for this Court to re-weigh the evidence

evaluated by the district court and affirmed by the court of appeals.

C. The Fifth Circuit’s Evaluation of the Evidence Does Not

Warrant Review.

The Fifth Circuit concluded that the evidence offered by

Petitioners did not meet their burden. (App.3) That evaluation was

reasonable and does not warrant this Court’s review.

For example, Petitioners place great reliance on the testimony

of their purported expert, Thomas A. Rosazza, in an attempt to meet

the deliberate indifference standard. (Pet.6). Yet, the district court

concluded that Rosazza’s specific conclusions were unfounded and

that he had failed to established his qualifications to even offer such

opinions. (App.15) It is quite understandable that the Fifth Circuit

did not rely on this unqualified, unfounded testimony as sufficient

evidence that the supervisory officials were deliberately indifferent.

Nor should this Court pla e undue reliance those unqualified,

unfounded conclusions.

Mr. Rosazza fails to detail his education or training that would

qualify him as an expert. (App.15) Furthermore, Mr. Rosazza fails

to provide any foundations for his opinion. (App.15) He simply

bases his conclusions on the Petitioners’ allegations and statements

from two inmates, which is insufficient. (App.15).

The fact that an incident happened cannot be enough to

establish culpability under §1983, a type of claim aimed at

individuals. In Farmer, this Court required both an objective and

a subjective component of mens rea in order to establish the

deliberate indifference that would lead to an Eighth Amendment

10

violation. Farmer, 511 U.S. at 834. The offender must first show

the alleged deprivation to be objectively and sufficiently

serious—that he is “incarcerated under conditions posing a

substantial risk of serious harm.” Farmer, 511 U.S. at 834, 114 S.

Ct. at 1977. He must then show a “sufficiently culpable state of

mind.” Jd. The plaintiff must demonstrate that the defendant prison

official had a mens rea equivalent to. that required for criminal

recklessness—that the official knew of and disregarded an

excessive risk to inmate health or safety. Farmer, 511 U.S. at 837,

1148S. Ct. at 1979. “[T]he 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.” /d.

Accordingly, supervisors cannot be held liable under § 1983

simply because they are supervisors. Jacquez v. Procunier, 801

F.2d 789, 793 (Sth Cir. 1986). For a supervisor to be held liable, he

must participate in the acts found to be unconstitutional or

implement unconstitutional policies that cause the alleged

constitutional violation. Mouille v. City of Live Oak, 977 F.2d 924,

929 (Sth Cir. 1992) citing Grandstaff v. City of Borger, 767 F.2d

161, 169-170 (Sth Cir. 1985) cert. denied 480 U.S. 916 (1987).

Petitioners failed to present any evidence that the individual

supervisors that they sued engaged in any unconstitutional acts or

set any unconstitutional policies that were causally related to

Petitioners’ injury.

Petitioners argue that the prisoner supervisors are liable because

of inadequate staffing, searches, training, and gang conflict. (ROA

pp. 144-146). In making these charges, Petitioners place great

reliance on the after-the-fact investigation, which was recorded in

a Serious Incident Review. This after-the-fact investigation does

not demonstrate the prior mental awareness necessary to overcome

a qualified immunity defense.

—— ee SSaa_xQ80 ae

11

Nothing in the Serious Incident Review indicates that there was

inadequate training or that the training of the correctional officers

working at the Coffield Unit was either the direct or indirect cause

of Rios’s death.’ (ROA pp. 416-428).

Nor does anything in the Serious Incident Report indicate that

inadequate staffing was either the direct or indirect cause of death

of Rios. Indeed, the Serious Incident Report comcludes that the

wing where the incident occurred was staffed as required (ROA p.

425). Nor does the Serious Incident Report fails to state that two

officers were to have escorted Rios to and from*the shower as

alleged by the Petitioners. Only level 2 and 3 offenders required

two correctional officers to escort them to and from the shower

(ROA p. 422). Rios was classified as a level 1 offender (ROA p.

420). The Serious Incident Report stated that one correctional

officer may escort a level 1 offender (ROA p. 423).

And nothing in the Serious Incident Report indicates that

inadequate searches were either the direct or indirect cause of the

death of Rios (ROA 416-428). While the Serious Incident Report

3. Petitioners also failed to show a pattern of similar incidents. Board

of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 409

(1997). The only evidence they offered in the district court was the transcript

from a hearing in the case of Adames v. Perez, United States District Court for the

Southern District of Texas, Corpus Christi Division, Civil Action No. C-99-437

(ROA pp. 231-251). Here, the magistrate considered that evidence and

concluded it insufficient. (App.13) Indeed, in Adames the Fifth Circuit

ultimately vacated and remanded the case back to district court for further

proceedings, finding that a judgment against the defendant TDCJ supervisory

officials resulted in a manifest miscarriage of justice. Adames v. Perez, 331 F.3d

508 (Sth Cir. 2003). In the remand of that case, the District Court granted

summary judgment on August 30, 2004, in favor of the prison officials, finding

that they were not deliberately indifferent and were entitled to qualified immunity.

That single hearing transcript hardly shows a sufficient pattern of similar

incidents.

eT

ee Se eee 6 ee

12

does indicate that the attacker’s cell was not searched for 11 days

prior to the attack and that the policy regarding searches of cells,

recreation yards and showers was not being followed to the letter

(ROA p. 422), there is nothing in thé Serious Incident Report to

indicate that the supervisory Respondents played a role in making

decisions that would constitute deliberate indifference concerning

the search procedures followed at the Coffield Unit (ROA 416-

428). Consequently, there is nothing in the Serious Incident Report

which would provide evidence of deliberate indifference by the

supervisory defendants with regards to cell searches.

Lastly, Defendants-Appellants allege that Rios and Lara should

not have been housed in the same area as they were both gang

members. However, nothing in the Serious Incident Report

indicates that the supervisory officials knew of a potential gang

conflict between Rios and Lara and, thus, nothing suggests that any

reshuffling of prisoners to lessen gang conflict would necessarily

have separated Rios and Lara. While Rios was a confirmed gang

member (ROA p. 254), Lara was not a confirmed gang member at

the time of the attack (ROA p. 254).

There is no reason for this Court to revisit the evidentiary

judgments made by the Fifth Circuit in applying well-settled law.

13

CONCLUSION

Respondents respectfully request that the Court deny the petition

for writ of certiorari.

14

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

BARRY R. McBEE

First Assistant Attorney General

EDWARD D. BURBACH

Deputy Attorney General for

Litigation

DAVID A. TALBOT, JR.

Assistant Attorney General

Chief, Law Enforcement Defense

Division

SETH BYRON DENNIS

Assistant Attorney General

Law Enforcement Defense Division

State Bar No. 00790580

P. O. Box 12548, Capitol Station

Austin, Texas 78711

Telephone: (512) 463-2080

Fax: (512) 495-9139

Attorneys for Respondents