Witte v. TX Board of Pardons

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50983
Summary Calendar
JENNIFER WITTE; CELESTE
BLAIR-KELLY; ASHLI LEIST;
DARLA BLACKMON; VIKTORIA
ROBERTSON; CHRISTINA INNES;
TINY CHAMBERLAIN; MARY ANN
LIVENGOOD; MARIA GARZA;
CHANIN LINDGREN; LAURA CAMPBELL;
ELIZABETH GUYNES,
Plaintiffs-Appellants,
versus
TEXAS BOARD OF PARDONS AND
PAROLES, ET AL.,
Defendants.
LINDA AMENT; REBECCA ADAMS;
JUDY ARNOLD; BILL MUSSER,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. A-98-CV-503-SS & A-99-CV-552-SS
_______________________________________________
October 2, 2000
Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jennifer Witte and the named appellants were inmates confined to the Gatesville
Prison, all of whom were sexually assaulted by an employee of the Texas Board of
Pardons and Paroles who was assigned to the prison. They challenge the trial court’s
finding and conclusion that certain prison officials were entitled to qualified immunity
in their civil-rights action brought under 42 U.S.C. § 1983. In their brief, Appellees
moved to supplement the record with three documents. Because the district court has
provided a supplemental record containing these documents, their motion is made moot.
At our direction, the parties addressed whether Appellants’ premature notice of
appeal deprived us of jurisdiction.1 We now conclude that in this instance the
premature notice does not prevent our exercise of jurisdiction.2
Appellants contend that the district court erred in concluding that there was no
evidence that Appellees were deliberately indifferent to the substantial risk that the
errant parole officer might sexually assault them. The district court considered
affidavits submitted by Appellants, thereby treating a pending motion as a request for
summary judgment.3 We review de novo an appeal from a grant of summary
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Mosley v. Cozby, 813 F.2d 659 (5th Cir. 1987) (noting that this court must examine the
basis of its own jurisdiction when necessary).
2
Barrett v. Atlantic Richfield Co., 95 F.3d 375 (5th Cir. 1996).
3
Fed. R. Civ. P. 12(b).
2
judgment.4 Our review of the record persuades that the district court did not err in
concluding that Appellees were entitled to qualified immunity. Viewed in the most
favorable light, Appellants have alleged only negligence by Appellees. It is well
established that mere negligence is insufficient to establish a § 1983 claim.5 Appellants
allege that the prison officials knew, in general terms, of the risks of sexual assault in
prison; they have not alleged facts suggesting, as is required, that the defendant officers
were deliberately indifferent to a substantial risk of harm posed by the offending
employee.6
Appellants further maintain that the district court should have granted their
motion for reconsideration in which they presented a new affidavit. The district court
did not abuse its discretion in denying that motion.7
Appellees’ motion is DENIED as moot. The judgment appealed is AFFIRMED.
4
FDIC v. Ernst & Young, 967 F.2d 166 (5th Cir. 1992).
5
Oliver v. Collins, 914 F.2d 56 (5th Cir. 1990).
6
Downey v. Denton Co., Tex., 119 F.3d 381 (5th Cir. 1997); see also Farmer v. Brennan,
511 U.S. 825 (1994).
7
Matador Petroleum Corp. v. St. Paul Surplus Lines Ins. Co., 174 F.3d 653, (5th Cir.
1991).
3