Smith v. Brenoettsy ( 1998 )

Revised November 13, 1998
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-30587
(Summary Calendar)
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ERIC SMITH,
Plaintiff-Appellee,
versus
STEVE BRENOETTSY, Lieutenant, ET AL
Defendants
JOHN P WHITLEY, Warden
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
November 5, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Eric Smith, an inmate at Louisiana State Penitentiary at
Angola (“LSPA”), brought suit pursuant to 42 U.S.C. § 1983 and
state tort law against LSPA guard Steve Brengettsy,1 LSPA Warden
John Whitley and others after Brengettsy allegedly stabbed Smith.
The magistrate judge denied summary judgment on Smith’s failure-to-
supervise claim against Whitley. Whitley now brings an
interlocutory appeal from this denial of summary judgment, arguing
that he is entitled to qualified immunity. We dismiss for lack of
jurisdiction.
I
Brengettsy allegedly stabbed Smith in the stomach on January
10, 1993.2 Prior to the stabbing, Brengettsy also allegedly
verbally abused and threatened Smith for approximately two weeks.
In response to the verbal abuse and threats, Smith attempted to
seek the help of another guard, Lt. Stanley Griffin, and
Brengettsy’s shift supervisor, Major Foster Andrews, but both
refused to become involved. Smith also wrote several letters to
Warden Whitley seeking assistance. Smith allegedly wrote his first
letter to Whitley on December 6, 1992, but no letter written on
1
Smith misspelled Brengettsy’s name in his complaint as
“Brenoettsy.” This opinion will correctly spell his name as
“Brengettsy.”
2
These facts are largely drawn from Whitley’s “Statement
of Undisputed Facts,” attached to Whitley’s motion for summary
judgment filed in accordance with Local Rule 2.10 of the Middle
District of Louisiana. Smith’s failure to oppose Whitley’s motion
for summary judgment means that these facts are admitted for
purposes of review of the denial of summary judgment, except to the
extent that the “facts” in the “Statement of Undisputed Facts” are
contradicted by “facts” in other materials attached to his motion
for summary judgment. See Gaspard v. Amerada Hess Corp., 13 F.3d
165, 166 n.1 (5th Cir. 1994).
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that date appears in Smith’s prison file, and Whitley denies ever
receiving this letter. Smith sent, and Whitley admits to receiving,
two other letters, dated December 23, 1992 (the “December 23
letter”), and December 31, 1992 (the “December 31 letter”). In the
December 23 letter, Smith requested assistance from Whitley because
he was “constantly being verbally abused by” Brengettsy. In the
December 31 letter, Smith again requested Whitley’s assistance in
getting Brengettsy to “back off with his treats (sic), and verbal
abuse to me.” The December 31 letter also stated that “[m]y
complaint was brought to his co-worker Lt. Griffin, after hearing
what I had to say, Lt. Griffin, said to me it was between Lt.
Brenocesty (sic) and me to work-out.” Both letters concluded with
a plea for Whitley to investigate Brengettsy. Smith also sent a
fourth letter, dated January 6, 1993, but this letter did not
arrive until January 12, 1993, after Brengettsy allegedly stabbed
Smith. Whitley apparently took no action based upon these letters.
Smith thereafter brought suit pursuant to 42 U.S.C. § 1983against Brengettsy, Griffin, Andrews, Whitley, and the State of
Louisiana through the Department of Public Safety and Corrections,
alleging violations of his rights under the Eighth and Fourteenth
Amendments of the U.S. Constitution and pendent state law claims.
With regard to Whitley, Smith claimed that Whitley’s failure to
investigate and to supervise Brengettsy enabled Brengettsy to stab
him (“failure-to-supervise claim”). The district court referred
the case to a magistrate judge, and based upon the magistrate’s
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recommendation, the court dismissed all claims and defendants
except the failure-to-supervise claim against Whitley and the
Eighth Amendment and state tort law claims against Brengettsy.
Whitley then filed a motion for summary judgment, asserting
qualified immunity,3 which Smith failed to answer. The magistrate
denied summary judgment because she found that the evidence Whitley
attached to his summary judgment motion was not properly
authenticated and because Whitley had failed to aver that he was
not aware of Smith’s complaints. Whitley timely appealed the
magistrate’s denial of summary judgment.
II
We review the denial of a summary judgment motion de novo,
viewing the evidence in the light most favorable to the nonmovant.
See Nerren v. Livingston Police Dep’t, 86 F.3d 469, 470 & n.1 (5th
Cir. 1996). Summary judgment is appropriate where “there is no
genuine issue of material fact and [] the moving party is entitled
to judgment as a matter of law.” FED R. CIV. P. 56(c). To win
summary judgment, the movant must show that the evidence in the
record would not permit the nonmovant to carry its burden of proof
at trial. See Celotex v. Catrett, 477 U.S. 317, 327, 106 S. Ct.
3Brengettsy filed a summary judgment motion on the state
tort law claims on grounds that Smith had failed to exhaust his
state administrative remedies, but did not file a motion for
summary judgment on the Eighth Amendment claim. The magistrate
granted Brengettsy summary judgment on the state tort law claims.
As Brengettsy has not brought an interlocutory appeal, we will not
discuss the remaining Eighth Amendment claim against him.
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2548, 2554, 91 L.Ed.2d 265 (1986). When the movant meets this
burden, the nonmovant seeking denial of the motion must set forth
specific facts showing a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). A dispute over a material fact is genuine “if
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. at 248, 106 S. Ct. at 2510.
“Material facts” are those “that might affect the outcome of the
suit under the governing law.” Id.
III
Before looking at the merits of this interlocutory appeal, we
first examine the basis for our jurisdiction. See Behrens v.
Pelletier, 516 U.S. )), 116 S. Ct. 834, 842, 133 L.Ed.2d 773 (1996)
(holding that where there are issues of law separable from the
merits of a claim, a court of appeals has jurisdiction to review
those issues of law on interlocutory appeal, even when the district
court denied summary judgment on the basis that material disputes
of fact remain); Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct.
2151, 2156, 132 L.Ed.2d 238 (1995) (holding that when the only
issue presented on interlocutory appeal is whether the evidence
could support a finding that an official’s conduct violated clearly
established law, a court of appeals lacks jurisdiction to review
the denial of summary judgment). The magistrate denied Whitley’s
motion for summary judgment based on qualified immunity because she
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found that the evidence Whitley attached to his summary judgment
motion was not properly authenticated and because Whitley had
failed to introduce an affidavit averring that he was not aware of
Smith’s complaints. Assuming, arguendo, that these evidentiary
problems can be overlooked, we have jurisdiction to consider
Whitley’s contention that issues of law separable from the merits
exist. See Behrens, 516 U.S. at )), 116 S. Ct. at 842; Cantu v.
Rocha, 77 F.3d 795, 802 (5th Cir. 1996).
IV
In the underlying suit in this case, Smith claims that
Whitley’s failure to supervise Brengettsy enabled Brengettsy to
stab him.4 A supervisory official may be held liable under section
1983 for the wrongful acts of a subordinate “when [the supervisory
official] breaches a duty imposed by state or local law, and this
breach causes plaintiff’s constitutional injury.” Sims v. Adams,
537 F.2d 829, 831 (5th Cir. 1976). To hold a supervisory official
so liable, the plaintiff must show that: (1) the supervisor either
failed to supervise or train the subordinate official; (2) a causal
link exists between the failure to train or supervise and the
violation of the plaintiff’s rights; and (3) the failure to train
4
It was clearly established prior to the stabbing that
“the treatment a prisoner receives in prison . . . [is] subject to
scrutiny under the Eighth Amendment.” Helling v. McKinney, 509
U.S. 25, 31, 113 S. Ct. 2475, 2480, 125 L.Ed.2d 22 (1993). Not
surprisingly, Whitley does not contend that the prohibition against
Brengettsy’s alleged actions was not clearly established.
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or supervise amounts to deliberate indifference. Hinshaw v.
Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986). For an official to
act with deliberate indifference, “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.”
Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128
L.Ed.2d 811 (1994); Wilson v. Seiter, 501 U.S. 294, 111 S. Ct.
2321, 115 L. Ed. 2d 271 (1991).
Whitley raises three legal arguments that are separable from
the merits of this case. Whitley first argues that Smith’s letters
were not specific enough to apprise him that Brengettsy posed a
“substantial risk of serious harm” to Smith. Whitley further
argues that under Farmer, his failure to investigate Smith’s
letters was an objectively reasonable response to Smith’s letters
as a matter of law because over six thousand complaints are filed
annually at LSPA. Finally, Whitley argues that because Smith bears
the burden of proof on summary judgment of showing that Whitley
actually drew the inference that Brengettsy posed a “substantial
risk of serious harm” to Smith, Farmer, 511 U.S. at 837, 114 S. Ct.
at 1979, he is entitled to summary judgment as a matter of law.
Whitley first argues that he is entitled to summary judgment
because Smith’s letters did not sufficiently apprise him that
Brengettsy might stab Smith. Whitley contends that a complaint
letter “must contain an unusually high degree of specificity and
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corroboration” in order to serve as the basis for a failure-to-
supervise claim because over 6,000 complaints are filed at LSPA
each year and that he cannot be expected to look into each and
every complaint. As an initial matter, Whitley provides no legal
support for this argument. Moreover, while a prisoner normally
must complain about a specific threat to a supervisory official in
order to give actual notice to that official, see, e.g., McGill v.
Duckworth, 944 F.2d 344, 349 (7th Cir. 1991), overruled on other
grounds by Farmer, 511 U.S. 825, 114 S. Ct. 1970, we have never
required that a supervisory official be warned of the precise act
that the subordinate official subsequently commits. See, e.g., Rosa
H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 659 (5th Cir.
1997). Rather, all that we (and the Supreme Court) have required
is that “the official . . . be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists.” Id. (citing Farmer, 511 U.S. at 837, 114 S. Ct. at 1979).
On interlocutory appeal, however, we lack jurisdiction to resolve
the factual question of whether Smith’s letters were specific
enough to satisfy this standard. See Johnson, 515 U.S. at 313, 115
S. Ct. at 2156.
Whitley next argues that his failure to investigate Smith’s
letters was an objectively reasonable response because over six
thousand complaint letters are filed annually at LSPA. In Farmer,
the Supreme Court stated that “prison officials who actually knew
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of a substantial risk to inmate health or safety may be found free
from liability if they responded reasonably to the risk, even if
the harm ultimately was not averted.” 511 U.S. at 844, 114 S. Ct.
at 1982-83. Whitley presents no authority to support his argument
that the number of prisoner complaints itself makes a failure to
investigate an objectively reasonable response to a specific
complaint and indeed, the number of prisoner complaints would
appear to cut both ways in determining the reasonableness of a
prison official’s response. Moreover, based on Farmer, Whitley can
escape failure-to-supervise liability by showing that he made a
reasonable response to Smith’s complaint; however, the
reasonableness of a response in these circumstances is a question
for the trier of fact that we cannot address on interlocutory
appeal. Id.Whitley also argues that he should be granted summary judgment
because he claims that Smith has failed to prove that he “had in
fact received [the letters] and was aware of them.” This argument
is apparently based on language from Farmer that in order to
establish deliberate indifference, the supervisory official “must
also draw the inference” that a prisoner faces a substantial risk
of serious harm. 511 U.S. at 837, 114 S. Ct. at 1979. In Farmer,
the Supreme Court explained how a plaintiff can show that a
supervisory official actually drew this inference:
[w]hether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to
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demonstration in the usual ways, including inference from
circumstantial evidence, . . . and a factfinder may
conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.
Id. at 842, 114 S. Ct. at 1981 (internal citations omitted).
Therefore, Smith can satisfy his burden of showing on summary
judgment that Whitley actually drew the inference that Brengettsy
posed a “substantial risk of serious harm” to Smith by pointing to
facts in the record suggesting that Whitley had the requisite
knowledge of a substantial risk. Id. Whether a supervisory
official actually drew this inference then becomes a factual
question that a court of appeals lacks jurisdiction to hear on
interlocutory appeal. See Johnson, 515 U.S. at 313, 115 S. Ct. at
2156; Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998) (“Whether
a prison official had the requisite knowledge of a substantial risk
is a question of fact.”). Because of the disputed facts in this
case, we lack jurisdiction on interlocutory appeal to decide
whether Whitley actually drew this inference. Id.Whitley also makes one other argument, an argument that is not
separable from the merits of this case. He argues that he lacked
a sufficient awareness of facts suggesting that Smith “faced a
substantial risk of serious harm.” According to Whitley, Smith
wrote at least four letters to Whitley requesting protection from
Brengettsy. Whitley attached two of these letters, the December 23
letter and the December 31 letter, as exhibits to his summary
judgment motion. The December 23 letter asked for Whitley’s
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assistance because Smith allegedly was “constantly being verbally
abused” by Brengettsy. The December 31 letter again requested
Whitley’s assistance in getting Brengettsy “to back off with his
treats (sic), and verbal abuse.” The December 31 letter also
stated that “[m]y complaint was brought to his co-worker Lt.
Griffin, after hearing what I had to say, Lt. Griffin, said to me
it was between Lt. Brenocesty (sic) and me to work-out.” Both
letters concluded with a plea for Whitley to investigate
Brengettsy. Whitley’s argument in effect invites this court to
reweigh the district court’s determination that a genuine issue of
material fact exists with regard to whether Whitley acted with
deliberate indifference. We lack jurisdiction to hear this
argument on interlocutory appeal. See Johnson, 515 U.S. at 313,
115 S. Ct. at 2156.
V
In conclusion, none of the separable legal issues identified
by Whitley are sufficient for us to grant summary judgment in his
favor. Therefore, because the district court determined that a
genuine dispute of material fact exists with regard to whether
Whitley acted with deliberate indifference, we dismiss Whitley’s
interlocutory appeal for lack of jurisdiction. See Naylor v. State
of La., Dep’t of Corrections, 123 F.3d 855, 857 (5th Cir. 1997);
Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995).
For the foregoing reasons, Whitley’s interlocutory appeal is
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DISMISSED for lack of jurisdiction.
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