# Opposition Brief — Rios v. Johnson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0663%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 811

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0663%3A2. Public record. Not legal advice.