Newton v. Black, 96-60415

• Decision Date: 13 January 1998
• Docket Number: No. 96-60415,96-60415
• Citation: 133 F.3d 301
• Parties: Jimmy NEWTON, Plaintiff-Appellee-Cross-Appellant, v. Lee Roy BLACK, et al., Defendants, James Brewer, Defendant-Appellant-Cross-Appellee, Tommy Ross, Defendant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 301

133 F.3d 301

Jimmy NEWTON, Plaintiff-Appellee-Cross-Appellant, v. Lee Roy BLACK, et al., Defendants James Brewer, Defendant-Appellant-Cross-Appellee Tommy Ross, Defendant-Cross-Appellee.

No. 96-60415.

United States Court of Appeals Fifth Circuit.

Jan. 13, 1998.

John Lewis Clay, Special Assistant Attorney General, Jackson, MS, Leonard Charlton Vincent, Mississippi Department of Corrections, Parchman, MS, for Brewer.

J. Andrew Phelps, Hattiesburg, MS, Marc L. Boutwell, Lexington, MS, for Newton.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

With regard to this action for 42 U.S.C. § 1983 and state law claims, in which Jimmy Newton, a state prisoner, alleged that he was beaten by another inmate as a result of, inter alia, the negligence of Lieutenant James Brewer, a prison official, the primary issue at hand is whether, under Mississippi law, Lieutenant Brewer had a ministerial duty to report a threat against Newton and is, therefore, not entitled to qualified immunity. Lieutenant Brewer appeals the $10,000 judgment for Newton on his state-law negligence claim, maintaining that he is entitled to qualified immunity; Newton cross-appeals the adequacy of those damages and the dismissal of his Eighth Amendment failure-to-protect claim. Concluding that Lieutenant Brewer is entitled to qualified immunity under Mississippi law, and that the district court properly dismissed Newton's other claims, we AFFIRM IN PART, and REVERSE and RENDER IN PART.

I.

Newton's pro se and in forma pauperis civil rights complaint, filed in mid-1991 against various Mississippi State Penitentiary officials, including Lieutenant Brewer, pursuant to § 1983 and state law, alleged that the defendants' deliberate indifference, failure to provide adequate protection, and gross negligence resulted in his being beaten by an unidentified inmate. In an amended complaint, he alleged that he had reported to Lieutenant Brewer that he had been threatened by inmate Melvin Walls. After conducting a Spears hearing, see Spears v McCotter, 766 F.2d 179 (5th Cir.1985), the magistrate judge determined that Newton had failed to show that the defendants had acted with deliberate indifference, and recommended that the complaint be dismissed as frivolous, pursuant to 28 U.S.C. § 1915(d) (now § 1915(e)).

The district court rejected that recommendation, because the magistrate judge had failed to consider Newton's amended complaint, including the allegation that he had relayed Walls' threats to at least one of the defendants. Therefore, the case was referred to the magistrate judge for further proceedings.

In a second amended complaint, Newton was represented by counsel. Named defendants were Steve Puckett (Superintendent of the Mississippi State Penitentiary), Captain Tommy Ross, and Lieutenant Brewer; and Newton added a claim for denial of adequate medical treatment.

At an evidentiary hearing before the magistrate judge, Newton testified that, on 6 March 1991, between 7:00 and 8:00 a.m., an inmate (whom he could not then identify by name, but who was later identified as Walls during Newton's brief meeting with Lieutenant Brewer) threatened Newton because he would not give Walls a cup of coffee; that, at around 10:00 a.m., he reported the threat to Lieutenant Brewer and told the Lieutenant that he wanted either Walls or himself transferred; that, around 10:30 a.m., while he (Newton) was talking to Lieutenant Brewer, Walls walked into the Lieutenant's office and told the Lieutenant that he would hurt Newton if Lieutenant Brewer did not return Walls' property that had been confiscated; that Lieutenant Brewer had been more concerned about Newton finishing his cleaning duties than about Walls' threat; and that, at approximately 11:00 a.m., while he (Newton) was watching television, Walls assaulted him, striking him in the mouth and face with a broom handle.

When asked what Lieutenant Brewer could have done to prevent the assault, Newton responded that the officials should have known that Walls was a threat to inmates housed in his unit; and that Lieutenant Brewer could have looked into the situation further and transferred him or Walls to another unit.

On cross-examination, Newton testified that, after Lieutenant Brewer talked to Walls, the Lieutenant ordered Walls to pack his belongings, because Lieutenant Brewer was going to transfer him; but that, prior to the assault, after Walls had packed his belongings, another Officer told him to unpack.

Walls testified that his dispute with Newton sprang from Walls' walking across the floor Newton was mopping on the morning of the incident (as noted, Newton said the dispute was instead over coffee); that he (Walls) told Lieutenant Brewer that he wanted to be transferred and, if not, "somebody was going to get hurt"; and that he was angry with Lieutenant Brewer because the guards had confiscated an earring from him (Walls). According to Walls, when a prisoner threatens someone "[t]hey are supposed to move one ... of the inmates to a different section". On cross-examination, Walls denied having been in Lieutenant Brewer's office with Newton that morning.

Captain Ross testified that Lieutenant Brewer was working under his supervision on the day of the incident; that, also pre-assault, Lieutenant Brewer did not report any incident involving Walls and Newton; that, also prior to the assault, he was aware that Walls was a "trouble maker", but not that he was violent; and that, with respect to the incident, everything was done that could have been done, because there is no way to prevent a spur-of-the-moment assault.

Captain Ross admitted, however, that the attack would have been prevented had Walls been moved pre-assault; and that, if Walls had told him he was going to hurt another inmate, he would have put him in the holding cell. Regarding such Department of Corrections policy, Captain Ross testified as follows:

Q Now, you would agree with me that the policy of the [Mississippi Department of Corrections] on March 6th, 1991 [the day of the incident], if an inmate advised an officer that he was going to hurt another inmate, that either the inmate making the threat or the inmate being threatened should be removed, correct?

A Even the most inexperienced staff member at Parchman would immediately take action.

Q Should take action, correct?

A They would take action.

Q And if an officer knew of a threat being made, he should also file [a rules violation report], is that correct, against the inmate making the threat?

A If there was evidence that the threat was made, he would do the incident report and the [rules violation report] and isolate, whichever one.

Q You remember telling me in your deposition that an investigation into a threat should be started as soon as the threat is made or is made known to the officer?

A Immediately.

Q No time should be wasted?

A No time wasted.

Q Because if any time is wasted, it could result in danger to the inmate or another officer, correct?

A Yes, sir.

Q And if ... an officer did not immediately start an investigation and knew that a threat was made, he would be derelict in his duties, correct?

A If it was a serious threat and it was a threat upon another inmate I would say he would be derelict in his duty; yes, sir.

(Emphasis added.)

Lieutenant Brewer, the administrator of the unit where Newton and Walls were housed on the day of the incident, testified that, on that day, he confiscated an earring from Walls at around 7:45 a.m.; and that, at approximately 8:30 a.m., Walls told him that he wanted to be moved if he could not have his earring back and "would be a problem" if he was not moved. Lieutenant Brewer testified that he did not understand Walls to be making a threat, but merely talking "in the heat of anger". According to Lieutenant Brewer, he told Walls to pack his bag, and Walls did so; he talked to Walls again, and explained that Walls would lose the opportunity to get an education if he moved to another unit; and Walls understood and was willing to stay.

Lieutenant Brewer also testified that Walls did not mention Newton's name; and that Newton did not tell him that Walls had threatened him. Lieutenant Brewer testified further that, prior to the assault, he did not know about Walls' reputation for violence; but that he considered all offenders dangerous and violent. Regarding Department of Corrections policy when one inmate threatens another inmate, Lieutenant Brewer testified as follows:

Q ... the policy concerning when an inmate threatens another inmate?

A Right.

Q Or an officer?

A Right.

Q Is to transfer one of them?

A Right.

....

Q Okay. So you called [sic] somebody and say, I have got a prisoner who has made a threat and I need to transfer that prisoner or put the other one in protective custody, right?

A As I stated, I never heard Inmate Walls threaten anyone.

....

Q I am asking you what the [Mississippi Department of Corrections] policy is when you have a problem with an inmate, he threatens somebody? What do you do with that inmate?

You transfer him, right, or put the other one in protective custody, right?

A The only thing that I can do is request that he be transferred. I can't transfer him.... [I]f ... one makes a threat, I will call my supervisor.

Q Okay. And tell them that prisoner made a threat and you need to transfer one?

A If he threatens another inmate I will call [my supervisor] and he will recommend the next step that I take.

(Emphasis added.) But, Lieutenant Brewer testified that he had no reason to call his supervisor or request that Walls be transferred, because he was not aware of Walls' threat against Newton and did not feel that Walls was a threat.

Steve Puckett, Superintendent of the Mississippi State Penitentiary on the day of the incident, testified as follows regarding the Department of...