Revised November 13, 1998

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-30587 (Summary Calendar) _________________

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

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.,

, 166 n.1 (5th Cir. 1994).

-2- 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

against 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

-3- 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,

, 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,

,

Brengettsy 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.

-4- 2548, 2554,

(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.,

,

,

(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.”

, 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. )),

,

(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,

,

,

(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

-5- 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 )),

; Cantu v.

Rocha,

(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,

(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,

,

,

(1993). Not surprisingly, Whitley does not contend that the prohibition against Brengettsy’s alleged actions was not clearly established.

-6- or supervise amounts to deliberate indifference. Hinshaw v.

Doffer,

(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,

,

,

(1994); Wilson v. Seiter,

,

,

(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,

,

, 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

-7- 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,

(7th Cir. 1991), overruled on other

grounds by Farmer,

,

, 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.,

(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.”

(citing Farmer,

,

).

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,

,

.

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

-8- 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.”

,

. 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.

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.

,

. 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

-9- 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.

,

(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.

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,

,

; Newton v. Black,

(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.

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

-10- 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,

,

.

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,

(5th Cir. 1997);

Hale v. Townley,

(5th Cir. 1995).

For the foregoing reasons, Whitley’s interlocutory appeal is

-11- DISMISSED for lack of jurisdiction.

-12-