SAMUEL T. WILLIAMS, Individually; KOURTNEY BYNUM, Individually; DONALD REED, SR., Individually and on Behalf of the Wrongful Death Beneficiaries of Donald Reed, Jr.; JUDY THOMPSON, Individually and on Behalf of the Wrongful Death Beneficiaries of Donald Reed, Jr., Plaintiffs--Appellees,
SHARON HAMPTON, Defendant--Appellant
Appeal from the United States District Court for the Northern District of Mississippi.
For SAMUEL T. WILLIAMS, Individually, Kourtney Bynum, DONALD REED, SR., Individually and, on behalf of Wrongful Death Beneficiaries of Donald Reed, Jr., JUDY THOMPSON, Individually and, on behalf of Wrongful Death Beneficiaries of Donald Reed, Jr., Plaintiffs - Appellees: Victor Israel Fleitas, Tupelo, MS; Casey Langston Lott, Esq., Langston & Lott, P.A., Booneville, MS.
For Sharon Hampton, Defendant - Appellant: Tommy Darrell Goodwin, Esq., Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS; Leonard Charlton Vincent, Esq., General Counsel, Mississippi Department of Corrections, Staff Attorney's Office, Parchman, MS.
Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge, joined by STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, CLEMENT and PRADO, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge, joined by HAYNES and HIGGINSON, Circuit Judges, concurring in the judgment. JAMES E. GRAVES, JR., Circuit Judge, joined by DENNIS, SOUTHWICK, and COSTA, Circuit Judges, dissenting.
PRISCILLA R. OWEN, J.
While confined at a Mississippi penitentiary, Donald Reed, Jr. was brutally attacked and murdered by other prisoners. Two other inmates, Samuel Williams and Kourtney Bynum, were also attacked but
recovered from their injuries. Reed's survivors, Williams, and Bynum (collectively the plaintiffs) sued Sharon Hampton, a corrections officer, under 42 U.S.C. § 1983 asserting that she had violated the Eighth Amendment's prohibition against cruel and unusual punishments. A jury found that Hampton was deliberately indifferent to the safety of the victims of the attacks. A divided panel of this court affirmed the district court's denial of Hampton's motion for judgment as a matter of law. After rehearing the case en banc, we now reverse the judgment of the district court because Hampton's acts or omissions did not, as a matter of law, rise to the level of deliberate indifference.
Because we examine the evidence in some detail below in considering the legal sufficiency of the evidence to support the verdict, we only briefly recount the operative facts here. The inmate-on-inmate attacks occurred on an outdoor exercise yard in Unit 32 of the State Penitentiary in Parchman, Mississippi. Each prisoner was confined in a single-person pen during his one-hour exercise period each day. Sharon Hampton had been guarding the exercise area and had been in possession of a block gun, which holds only one hard rubber slug, approximately five to six minutes before the events leading to the attacks began. It was past time for the prisoners on the yard to be taken back inside. One of the plaintiffs in this case, Samuel Williams, who testified at trial, told Hampton that he would not come out of his pen unless she went inside and obtained a money withdrawal slip for him. A supervisor, Anthony Taylor, relieved Hampton, and she handed the block gun and the keys to the individual exercise pens to Taylor before she went inside to obtain the withdrawal slip. Hampton had two rubber pellets for the block gun in her pocket and did not give them to Taylor when she left the yard area.
While Taylor was on guard, two inmates escaped from their respective exercise pens, and they ran toward Taylor. He pointed the block gun at them, the escaped inmates stopped momentarily, then Taylor turned and ran inside the prison without firing the block gun. Taylor dropped the keys to the individual exercise pens on the ground as he fled. One of the inmates who had escaped used the keys to release five other prisoners from their pens. The seven escaped inmates carried out the attacks on Reed, Bynum and Williams while Hampton was inside the prison. It was later determined that the block gun was unloaded and had been unloaded most, if not all, of the day.
The plaintiffs contend that Hampton was deliberately indifferent to the safety of the inmates who were attacked by failing to ascertain whether the block gun was loaded when she began her shift on the prison yard and by failing to give Taylor the two pellets for the block gun that were in her pocket when she entered the prison.
At the close of the evidence, the district court denied Hampton's Rule 50(a) motion for judgment as a matter of law. The jury found that Hampton was deliberately indifferent to the safety of Reed, Bynum and Williams; and that Hampton was not entitled to the defense of qualified immunity. The jury awarded $25,000 to Williams, $25,000 to Bynum, and $100,000 to the survivors of Reed. Hampton has appealed, contending that her failures regarding the
block gun fall short of deliberate indifference as a matter of law, her acts and omissions were not the cause of the death and injuries because the attackers would not have had access to the three inmates in their individual 180-square-foot exercise pens but for Taylor's dropping the keys, and that the jury's verdict that Hampton was not entitled to qualified immunity cannot stand because it would not be clear to a reasonable officer that an act of negligence which violated prison protocols is " unlawful" and violates federal law.
Because we conclude that there is legally insufficient evidence to support the jury's finding that Hampton was deliberately indifferent, we do not consider the two other issues that she has raised. We reverse the district court's judgment against Hampton.
" [P]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.'"  This duty is derived from the prohibition of " cruel and unusual punishments"  in the Eighth Amendment. The Supreme Court has explained that " [i]t is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety."  The Court has made clear " that a prison official violates the Eighth Amendment only when two requirements are met."  One is that " the deprivation alleged must be, objectively, 'sufficiently serious.'"  " For a claim . . . based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm."  " The second requirement follows from the principle that 'only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'"  " To violate the Cruel and Unusual Punishments Clause, a prison official must have a 'sufficiently culpable state of mind.'"  The Supreme Court has explained that " [i]n prison-conditions cases, that state of mind is one of 'deliberate indifference' to inmate health or safety." 
The Supreme Court's seminal decision as to what constitutes " deliberate indifference" is Farmer v. Brennan. Since at least 1976, the Court's decisions had reflected that " deliberate indifference describes a state of mind more blameworthy
than negligence,"  and " Eighth Amendment liability requires 'more than ordinary lack of due care for the prisoner's interests or safety.'"  The Court's decisions were " also clear that [deliberate indifference] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result."  The Supreme Court noted in Farmer that Courts of Appeals had " routinely equated deliberate indifference with recklessness,"  but that did not " fully answer the . . . question about the level of culpability deliberate indifference entails, for the term recklessness is not self-defining."  The Court explained that the civil law generally employs an objective standard in determining recklessness. " The civil law generally calls a person reckless who acts or (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known."  By contrast, the criminal law employs a subjective standard. It " generally permits a finding of recklessness only when a person disregards a risk of harm of which he is aware." 
The Supreme Court refused to adopt an objective test for deliberate indifference. The Court held that " Eighth Amendment suits against prison officials must satisfy a 'subjective' requirement."  The Court explained " that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety."  There are two necessary components: (1) " the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," and (2) " he must also draw the inference."  Subjective recklessness as used in the criminal law is the test for deliberate indifference under the Eighth Amendment.
The Supreme Court has reasoned that this subjective test flows from the punishment aspect of the Eighth Amendment. " [I]n the Eighth Amendment context . . . a subjective approach isolates those who inflict punishment."  " The Eighth Amendment does not outlaw cruel and unusual 'conditions'; it outlaws cruel and unusual 'punishments.'"  Accordingly, " an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." 
We apply the principles articulated in Farmer as we consider whether there is legally sufficient evidence to support the jury's finding in the present case that Hampton was deliberately indifferent.
We are reviewing the district court's denial of a motion for judgment as a matter of law under Rule 50(a). " [A] court should render judgment as a matter of law when 'a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'"  The Supreme Court has explained that " the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that 'the inquiry under each is the same.'"  We " should review all of the evidence in the record," but " [i]n doing so . . . [we] must draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence."  " 'Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'"  " [A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.'"  This means " the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" 
The plaintiffs contend that Hampton was deliberately indifferent to a substantial risk of inmate-on-inmate violence when she failed to ascertain if the block gun was loaded and because she took two rubber pellets with her back into the prison building and did not give them to Taylor when he relieved her in the exercise yard while she went inside. The block gun at issue was a 37-millemeter weapon. It was about 36 inches (a yard) long, and it held one round of ammunition. It would fire only once and would then have to be reloaded. It had a lever and operated much like a double-barreled shotgun with respect to how it opened to be loaded and unloaded but not with respect to having two chambers. After firing, the person operating it would have to open the gun, pull out the casing of the projectile that had been fired, and insert another round to shoot again. The projectiles were rubber bullets. The plaintiffs' expert witness testified that the block gun was a nonlethal weapon. The plaintiffs also called as a witness one of the inmates who participated in the attacks, Edward House, and he testified that he had been shot with a block gun before the day in question, and " [i]t hurts momentarily" but that " it will surpass [sic]."
Christopher Epps, the Commissioner of the Mississippi Department of Corrections
(MDOC), testified that the officer who was first on duty in the exercise yard that day should have checked the block gun to assure that it was loaded before taking the weapon onto the exercise yard. No one disputes this. Epps also testified, without contradiction, that corrections officers are not supposed to open the block gun when inmates are being transported to or from the exercise pens. If the gun were opened and a projectile " popped out," the officer might be vulnerable from attack by an inmate. Officers are to remain a certain number of feet from the inmates with this weapon. An expert witness for the plaintiffs testified that he thought that an officer with a block gun would have time to inspect the weapon to see if it was loaded after the inmates were confined in their exercise pens.
The evidence is undisputed that there were three rounds of ammunition for this block gun. Hampton testified directly to this fact, and no one, including the experts called by the plaintiffs, took issue with this testimony. All the testimony regarding the block gun throughout the trial indicated that the two rubber pellets Hampton took inside with her were extra ammunition for the block gun, not the only two pellets for the weapon.
There is no evidence that the officer who obtained the block gun before going onto the yard at the beginning of the day was Hampton. Hampton testified that when she came to work that morning, she was assigned to the exercise yard, and when she arrived at the yard, Taylor was already there with the block gun and the ammunition. Hampton testified that when she first went onto the exercise yard, inmates had already been brought onto the yard, and the process of bringing them to and from the exercise pens was ongoing. Hampton relieved Taylor when she arrived on the yard. Though the plaintiffs attempt to dispute this in their briefing by arguing that Hampton was impeached on this point, the record does not support the plaintiffs' assertion. The evidence reflects that Taylor was on the exercise yard that morning before Hampton. Taylor did not testify at trial, but the record contains statements he made to investigators after the assaults and his written statement, though his written statement is unsigned. The investigative report reflects that Taylor told investigators the following: he (Taylor) was on the exercise yard, watching the pens, when he was told by the Commander to place Hampton in the exercise yard to guard the inmates. Taylor instructed Hampton to report to the yard, and he gave her the block gun. Consistent with this report, Taylor's written statement says that he had been on the exercise yard for about an hour when the Commander told him to have Hampton stay in the exercise yard while Taylor assisted with escorting inmates from the building. Taylor's written statement says that " Hampton was on the yard most of the day." The investigative report similarly reflects that Taylor said that Hampton was stationed on the exercise yard for several hours guarding the inmates after she relieved him, and Taylor resumed his duties of searching and escorting inmates to the yard.
The record reflects that Hampton relieved Taylor twice that day, once in the morning, and later in the afternoon. Taylor relieved Hampton after she had relieved him for the first time early in the morning, and Taylor relieved Hampton in the afternoon before relieving her again for the five-minute period just before the attacks began. There is no evidence that anyone other than ...